Trans Rights Face Supreme Court Test Over Bans on Youth Care (1)

Transgender rights will reach a legal turning point Wednesday as the US Supreme Court considers the constitutionality of state laws that ban gender-affirming treatments for minors.

Less than five years after the justices outlawed job discrimination based on gender identity and sexual orientation, LGBTQ-rights advocates are back with a case – and a court – that could prove more challenging.

It is a fraught time for transgender Americans, with President-elect Donald Trump set to retake the White House after campaigning on a pledge to roll back trans rights. The clash will determine whether the court’s 2020 ruling will become a high-water mark for the movement amid growing pushback, particularly in conservative states.

The dispute centers on a Tennessee law that bans puberty blockers, hormone therapy and surgery to treat youths with gender dysphoria, the condition characterized by distress over the incongruence between one’s gender identity and birth-assigned sex.

Tennessee is one of about two dozen states with such laws, all enacted since 2021. A decision upholding the measure could mean that a third of US transgender youths will live in states where they can’t legally obtain care, says Elana Redfield, federal policy director at the UCLA School of Law’s Williams Institute, which does research on sexual orientation and gender identity.

Opponents of the bans say they fly in the face of the widely accepted clinical guidelines for treating gender dysphoria in young people. Gender-affirming care “leads to a decrease in suicidality, depression, and anxiety, as well as an increase in overall psychological functioning and mental well-being,” the American Psychological Association and other mental-health groups told the justices in court papers.

Supporters of the bans say the measures protect vulnerable children from risky and dangerous medical procedures. A brief filed by 56 physicians contends it is “treacherously difficult to determine whether a child experiencing psychological distress would do best with permanent, life-changing intervention or may instead improve with a less-drastic treatment.”

Tennessee Attorney General Jonathan Skrmetti says the state’s General Assembly enacted the law last year amid a sharp rise in the number of diagnoses of gender dysphoria among minors. Of Americans 13 to 17 years old, about 1.4% identify as transgender, according to a 2022 study by the Williams Institute.

The Biden administration turned to the Supreme Court after a federal appeals court upheld the Tennessee law. The administration contends the measure violates the Constitution’s equal protection clause by making treatments illegal when used to treat gender dysphoria but legal for other purposes.

Three transgender youths and their families are also challenging the law. They will be represented Wednesday by American Civil Liberties Union lawyer Chase Strangio, who will become the first transgender attorney ever to argue a case at the Supreme Court.

“The Tennessee law allows someone assigned male at birth to take testosterone, but not someone assigned female at birth to take testosterone,” said David Cole, a Georgetown University law professor who stepped down this year as the ACLU’s national legal director. “That is treating someone differently because of their sex assigned at birth.”

Gorsuch and Roberts

The Supreme Court was receptive to similar arguments in the 2020 job-bias case. Two conservatives – Justice Neil Gorsuch and Chief Justice John Roberts – joined the majority in a 6-3 decision that interpreted the longstanding ban on workplace sex discrimination as covering sexual orientation and gender identity. The decision was a victory for a transgender woman who was fired from her job as a funeral director for not complying with her employer’s gender-specific dress code.

But that case was different in potentially crucial respects. For starters, it turned on the meaning of a federal statute that bars discrimination “because of” a person’s sex – a phrase that doesn’t appear in the Constitution.

And supporters say the Tennessee law is fundamentally distinct from job discrimination because the state isn’t treating the two genders differently and instead is banning what it sees as risky treatments for both boys and girls.

The law “doesn’t say men cannot do this, or women cannot do this,” said May Mailman, director of the Independent Women’s Law Center, an advocacy group that filed a brief supporting Tennessee. “It says that nobody can access these types of drugs for these types of purposes.”

Perhaps most importantly, the Supreme Court has grown more conservative than it was when the job-bias ruling was issued in June 2020. Justice Amy Coney Barrett’s confirmation later that year gave the court a sixth Republican appointee and a conservative supermajority.

Barrett joined other conservatives in April when the court said Idaho could generally enforce a ban similar to Tennessee’s. The court indicated its decision, which exempted the two teenagers who sued over the ban, was a procedural step and not a ruling on the merits.

Coming Battles

The Tennessee case could be a prelude to other polarizing fights over transgender rights. Pending appeals by Idaho and West Virginia ask the Supreme Court to let states categorically ban transgender women and girls from competing for their schools on female athletic teams.

The high court is also weighing how to handle two pending appeals centering on coverage for drugs and surgeries in state-run insurance plans and the Medicaid insurance program for the poor and disabled.

It’s also possible the court won’t resolve any of those cases this term. Trump’s election victory creates the possibility the federal government will shift its position in the litigation. The court then could drop the case or rule based on arguments being pressed by the transgender youths and their families.

The case is United States v. Skrmetti, 23-477.

(Adds information on lawyer arguing case.)

--With assistance from Kelsey Butler.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Steve Stroth

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