Supreme Court is under pressure to step into the debate over transgender rights
By Devan Cole, CNN
Washington (CNN) — The Supreme Court is facing intense pressure to step into the charged debate over gender-affirming care as transgender minors and their families fight with GOP states over a wave of laws passed in recent years that restrict such care for young trans people.
The high court has largely stayed out of hot-button cases concerning transgender rights, often declining to intervene when litigants appeal to the justices in disputes over everything from school bathroom policies and sports bans to prohibitions on conversion therapy.
But a patchwork of lower-court decisions in cases over gender-affirming care may ultimately force the court to wade into the issue for the first time. As things currently stand, the justices are facing four appeals in cases challenging bans on gender-affirming care for minors in three states.
The most recent appeal landed at the court last month in the form of an emergency request from officials in Idaho who want the court to permit the state to enforce its ban while a legal challenge to it plays out in a lower court. Both sides have fully briefed their arguments before the court, which could act on the emergency appeal as soon as this week.
The other three appeals arrived at the court days apart last November and stem from an appeals court decision last year upholding state bans in Tennessee and Kentucky in challenges to the laws from trans youth and their families, as well as the Biden administration.
The justices are set to consider those earlier appeals for the first time during their closed-door conference next week. The trio of petitions could languish for weeks or months if the justices decide to slow-walk their consideration of them.
“These laws are punitive, and insofar as the court cares about impacts on people on the ground, these cases make out a very strong argument for taking the case,” said Tobias Barrington Wolff, a law professor at the University of Pennsylvania who’s an expert on LGBTQ rights.
Conservative Justices Samuel Alito and Clarence Thomas have appeared eager in the past to take up cases concerning transgender Americans, but they’ll need two of their colleagues to join them to add the cases out of Tennessee and Kentucky to their docket for next term.
In the Idaho case, attorneys for the trans teenagers and their parents who are challenging the state law asked the court last week to turn down the request from state Attorney General Raúl Labrador, saying that for both minor plaintiffs, “gender-affirming medical care has dramatically alleviated their gender dysphoria and enabled them to become healthy, thriving teenagers.”
Meanwhile, supporters of Idaho’s law have raced to the court in recent weeks to urge the justices to uphold the prohibition.
Last month, more than a dozen states and six individuals who regret receiving gender-affirming treatments earlier in their lives asked the justices to lift the block on the prohibitions, with the so-called detransitioners warning that they were “harmed” by the care.
“Sadly, [the individuals] learned through their experiences that such interventions did not resolve their mental health issues or gender dysphoria, but only caused physical harm and increased their distress as they realized their bodies had been irreversibly altered based upon a false promise,” the friend-of-the-court brief states.
Gender-affirming care is customized to each person’s needs and spans a range of evidence-based treatments and approaches that benefit people who identify as transgender or nonbinary. The types of care vary by the age and the goals of the recipient and are considered the medically necessary standard of care by nearly every mainstream medical association.
Studies have found deep satisfaction among adults who also had some form of a surgical procedure as a part of gender-affirming care, which can be transformative for an adult and may even be life-saving. Surgery is not recommended for minors. Lawyers for the challengers to the Idaho law told the court that “treatment regret, due to detransition or other reasons … is extremely rare.”
Shannon Minter, the National Center for Lesbian Rights’ legal director and one of the attorneys behind the challenge to Kentucky’s ban, told CNN, “There’s such a clear circuit split now that I think it’s only a matter of time until they do feel compelled to take a case.”
“It could be now,” Minter added. “I hope it is because the negative decisions, really, I think cannot be reconciled with the Supreme Court’s precedent and these bans are causing terrible harm to these families.”
Circuit courts have split on the issue
More than 20 states have moved in recent years to restrict gender-affirming care for trans youth, and challenges have been brought against many of them, resulting in conflicting rulings from federal judges and circuit courts across the country.
The wave of laws and lawsuits is unlikely to stop.
Those circuit splits – rulings that impact part of the country but conflict with rulings from elsewhere in the country – often lead the Supreme Court to step in. But it’s not uncommon for the court to decline to hear an appeal, as was the case earlier this year when the justices decided not to review a lower-court ruling that an Indiana public school’s bathroom policy discriminated against a transgender student.
“I don’t think there’s any reason that they have to swoop in and decide this issue immediately, simply because there are some emerging differences among the circuits,” Wolff said, adding that if the justices “continue to be interested in this issue in the same way that they were interested in it in (a key 2020 LGBTQ employment discrimination dispute), then these cases certainly present a vehicle for them to take to take the issue up.”
In its decision last September, a divided panel of the 6th US Circuit Court of Appeals reversed district court rulings that blocked the gender-affirming care bans in Tennessee and Kentucky.
Tennessee’s law says that medical providers in the state cannot perform procedures which “enable a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or “treat purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”
Kentucky’s ban similarly prohibits health care providers from administering gender-affirming care, including by prescribing puberty blockers and hormone therapy, to most minors.
“If the injunction remains in place, Tennessee and Kentucky will suffer harm from their inability to enforce the will of their legislatures, to further the public-health considerations undergirding the laws, and to avoid health risks to their children,” the appeals court said in the 2-1 majority opinion.
In pushing health care bans like these, Republicans have argued that decisions around such care should be made after an individual becomes an adult. But as part of their legal challenges, opponents have argued that in addition to violating the civil rights of trans youth, the laws also run afoul of parents’ rights to make decisions about their child’s medical care.
Sixth Circuit Judge Helene White acknowledged those concerns in her dissent last year, writing that the two state laws at issue “cannot pass constitutional muster.”
“The laws further deprive the parents – those whom we otherwise recognize as best suited to further their minor children’s interests – of their right to make medical decisions affecting their children in conjunction with their children and medical practitioners,” White wrote.
In their petitions to the court, the challengers in Tennessee and Kentucky pointed to a 2022 ruling from a different circuit: an 8th US Circuit Court of Appeals decision upholding a preliminary injunction that blocked Arkansas’ ban on gender-affirming care for trans youth.
At the time, that decision represented the only other appeals court ruling in favor of the challenges to such laws. That ruling was never formally wiped away, and a permanent injunction was later issued by the district court. The full circuit is set to review that decision soon.
Apart from the 6th Circuit, one other appeals court – the 11th Circuit Court of Appeals – has upheld a ban on gender-affirming care.
In a ruling last year, the court allowed Alabama to enforce its ban and the state was able to begin doing so in January. A trial in the case is set for August.
Alito, Thomas and Kavanaugh
Among the nine justices, at least two have shown a desire to take up cases concerning transgender rights: Alito and Thomas.
In recent years, both have written publicly to criticize their colleagues’ decision to sidestep cases over issues concerning transgender Americans and the LGBTQ community at large, though none of those cases have centered on gender-affirming care in the way that the Tennessee, Kentucky and Idaho cases do.
Last June, when the court declined to review an appeals court ruling in favor of a transgender woman who sued a Virginia men’s prison over alleged mistreatment at the facility, Alito penned a nine-page dissent that was joined by Thomas to air his grievances with the move and the lower-court ruling that was appealed up to the high court.
The lower-court ruling, Alito wrote, “will raise a host of important and sensitive questions regarding such matters as participation in women’s and girls’ sports, access to single-sex restrooms and housing, the use of traditional pronouns, and the administration of sex reassignment therapy (both the performance of surgery and the administration of hormones) by physicians and at hospitals that object to such treatment on religious or moral grounds.”
“Given that impact … I would grant certiorari now,” Alito said at the time.
Months earlier, Alito – again joined by Thomas – argued in a dissent that the court was ignoring “an important issue that this Court is likely to be required to address in the near future” when it declined to let West Virginia enforce an anti-trans sports ban against a young trans student.
In that matter, the two justices said they would have allowed the state to enforce the law, which was one of more than a dozen such laws enacted by GOP-led states since 2020.
The pair – joined by Justice Brett Kavanaugh – also publicly disagreed with the court’s decision last December to let stand a Washington state law prohibiting licensed health care professionals from practicing “conversion therapy,” with Thomas writing in a dissent that the law is “presumptively unconstitutional.”
Gorsuch’s previous ruling on LGBTQ workers
Another member of the court’s conservative wing has been on the minds of some court watchers while the recently appealed cases hang in the balance: Justice Neil Gorsuch, who penned a landmark ruling in the 2020 case Bostock v. Clayton County that said federal civil rights law protects gay, lesbian and transgender workers.
In that matter, Gorsuch, handed a surprise win to the progressives when he extended the protections to LGBTQ workers by applying his “textualist” judicial philosophy to Title VII of the Civil Rights Act.
But even in that case, where Gorsuch’s majority opinion was joined by Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, Gorsuch was clear that his ruling was narrowly tailored and took into account how it could impact other areas of concern for employers.
“Under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today,” he wrote. “But none of these other laws are before us … Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.”
Alito, again in dissent, hit back at that point, describing various areas where he said there could be “potential consequences of the Court’s decision.”
Among them was women’s sports and healthcare, with Alito saying healthcare benefits “may emerge as an intense battleground under the Court’s holding.” But this was a year before Arkansas became the first state to enact restrictions on gender-affirming care, which would soon give way to an avalanche of similar laws in the succeeding years.
Bostock’s impact is finally before the justices to consider, and Alito and Thomas are ready to pounce. The question is whether their colleagues are willing to join them.
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CNN’s Jen Christensen contributed to this report.
