The Supreme Court has agreed to take up the question of whether gender-affirming care bans for transgender youth are unconstitutional, in response to the Biden administration petitioning on behalf of trans youth and their families.
The high court’s ruling on this issue has the potential to curtail — or bolster — access to gender-affirming care across the country, as 25 states now ban such medical care for trans youth. The specific question before the Supreme Court is whether a gender-affirming care ban in Tennessee violates the 14th Amendment’s equal protection and due process clauses.
The court will hear arguments in the case next fall. The Supreme Court’s ultimate decision could also impact how transgender people are protected under the Constitution more broadly, since the legal case out of Tennessee deals with whether gender-affirming care bans discriminate on the basis of sex — and whether transgender people are a class of individuals who have been historically subject to discrimination and are thereby entitled to more protection.
The fact that the justices decided to take up this question at all is significant. The Supreme Court has declined to intervene on many issues related to transgender rights, including cases on bathroom access, school sports, whether trans people are protected under disability law, and whether trans students should receive confidential support in school. This inaction has repeatedly granted wins to LGBTQ+ advocates.
Even when the Supreme Court allowed Idaho to enforce its ban on gender-affirming care for trans youth in April, it did not address the constitutionality of such bans or debate political interventions in medical care. Now, for the first time, the high court will take up the issue, which is what LGBTQ+ rights attorneys were hoping for.
See here for a bit of background. Slate adds on.
There is cause for some very cautious optimism. In 2020’s Bostock v. Clayton County, the Supreme Court ruled that “it is impossible to discriminate against a person” for being transgender “without discriminating against that individual based on sex.” Notably, though, the court was interpreting a statute, Title VII of the Civil Rights Act, rather than a constitutional provision. Justice Neil Gorsuch authored Bostock, and Chief Justice John Roberts joined him along with the court’s liberals. Roberts and Gorsuch, of course, remain on the court, and there are still three liberal justices. So it is conceivable that a five-justice majority could apply Bostock’s reasoning to the equal protection context.
Indeed, on a more balanced court, it would seem to be a no-brainer that the logic of Bostock extends to the 14th Amendment. Anti-trans legislation punishes an individual for failing to adhere to the sex they were assigned at birth and curtails their rights accordingly. When states single out transgender people because they are trans, they are necessarily classifying them on the basis of sex. Tennessee’s health care ban illustrates this fact: Doctors may prescribe testosterone to a cisgender boy, but not a transgender boy who was assigned female at birth—their sex at birth determines whether they may obtain the medication. The same is true of restrictions on adult health care: West Virginia’s Medicaid program, for example, covers breast-reduction surgery for cisgender men (who have excess tissue), but not transgender men assigned female at birth (who have gender dysphoria). As the 4th Circuit held, this distinction creates an unconstitutional regime based on sex.
Yet other courts have reached the opposite conclusion, often fueled by the Supreme Court’s reversal of Roe v. Wade in 2022’s Dobbs decision. In Dobbs, the court warned against the acknowledgment of any constitutional right that is not “deeply rooted” in the nation’s “history and tradition.” It also arguably cut back the equal protection clause’s protections against sex discrimination, narrowing the definition of gender-based discrimination. Conservative judges have seized upon these passages to Dobbs-ify the law of equality, refusing to protect transgender rights because they did not exist in the 18th and 19th centuries. And this Supreme Court is disinclined toward respecting, let alone expanding, LGBTQ+ rights. Moreover, Justices Brett Kavanaugh and Amy Coney Barrett have already signaled their skepticism that health care bans for trans minors are unconstitutional.
While this case originated in Tennessee, it obviously would have an effect on Texas as well. Note that gender affirming care for adults as well as minors is being litigated here. There was a time when I would have thought that the constitutionality of an adult seeking medically sound healthcare services would have been obvious, but that time was before the Dobbs decision. What is obvious now is that there will be no end of attacks on transgender people if SCOTUS allows these laws to stand. So, you know. Just another day at the court.
UPDATE: And as soon as I hit save on this draft, I saw this.
The U.S. Supreme Court has agreed to hear arguments over a Tennessee law that bans gender-affirming care for minors, wading into the issue of trans health care for the first time.
Tennessee’s law prohibits doctors from prescribing medical treatments, like hormone therapies and puberty blockers, to help a minor transition from the sex they were assigned at birth to the gender they identify as. The Biden administration, along with trans teens in Tennessee, challenged the law, alleging it violates the equal protection clause of the 14th amendment.
Texas passed a similar law last legislative session, prohibiting doctors from using puberty blockers and hormone therapy to help a minor gender transition. The law went into effect Sept. 1, despite an ongoing legal challenge before the Supreme Court of Texas.
Texas’ high court is expected to rule this year, long before the Tennessee case gets resolved next summer. But by setting a national precedent and signaling how it intends to handle these cases, the U.S. Supreme Court’s ruling will inevitably have ripple effects in Texas and foreshadow how future fights over trans health care access may play out.
See here for more on that case. As I said at the time, I don’t know what to expect from it, but it’s hard to be optimistic. We’ll see if this ruling ultimately matters.