Transgender Ruling Has Advocates Looking for Silver Lining

The US Supreme Court decision upholding Tennessee’s ban on gender affirming care for transgender minors is not a total loss, LGBTQ+ advocates said.

The court’s conservative majority applied a more lenient test to scrutinize the law, which it said carved out people based on age and medical use, rather than their transgender status. In doing so, the decision left open the possibility that other laws might require a tougher analysis when challenged for discriminating against transgender people.

“The court did cabin this in quite narrowly to the regulation of medical care for minors,” said Elana Redfield, federal policy director at the Williams Institute, a research organization at UCLA School of Law focused on law and policies that impact LGBTQ+ people.

A sweeping decision that put all laws that discriminate against transgender people under this lower standard of review was possible, she said.

LGBTQ+ groups are now focused on what the ruling left unanswered.

There are examples when individual government officials or legislatures target people because they are transgender and “the court didn’t answer the question about whether or not that would trigger heightened scrutiny,” said Chase Strangio, co-director of the ACLU’s LGBTQ & HIV Project. “There are lower court decisions that say it does and those are still good law.”

“Though devastating, it’s certainly not the sweeping catastrophe that people feared,” said Strangio, who in December became the first openly transgender individual to argue at the Supreme Court.

Open Door

The issue centers on the level of scrutiny that courts apply when analyzing a law. Laws that classify on the basis of suspect classifications, like race, must pass a more rigorous test.

In dissent, the court’s three liberal justices said distinctions based on transgender status should be subject to what’s known as intermediate scrutiny. That’s the test that courts apply to cases involving sex discrimination.

Three of the court’s conservative justices, however, wrote or joined concurrences that said transgender statutes didn’t trigger “heightened scrutiny.”

Writing for the court, Chief Justice John Roberts explicitly declined to resolve the dispute, finding that the law didn’t distinguish on that basis.

Noting that the court had never held whether transgender individuals are a “suspect or quasi-suspect class” entitled to heightened scrutiny, the majority said the case “does not raise that question.”

Jennifer Levi, senior director of transgender and queer rights for GLAD Law, said that leaves the door open for groups to argue that laws based on animus toward transgender minors are unlawful.

Moreover, she noted the ruling doesn’t outlaw gender affirming treatment in states that haven’t enacted bans, and, in some cases, have protected the right to these healthcare services.

In states like Tennessee, where these bans did go into effect, Levi said the experience will at least expose the kinds of harms that are done to children and families when they are forced to choose between seeking medical treatment or cutting ties to their communities.

Two-Tiered Society

Others, though, said the ruling could apply more broadly.

Georgetown law professor Michele Goodwin noted that the hormone and other therapies banned for gender affirming care are still allowed for other uses by minors.

By allowing that law to stand, it allows lawmakers to dream up new and creative ways to carve out transgender kids, Goodwin said. “These conditions create a two-tiered society,” she said.

And it’s not obvious that the court’s reasoning couldn’t at least theoretically extend to regulation of gender affirming care for transgender adults, said Kate Redburn, the co-director of Columbia Law’s Center for Gender & Sexuality Law.

The court “essentially says that discrimination on the basis of gender dysphoria is not quite the same thing as discrimination against transgender people,” they said.

Cardozo Law professor Alex Reinert said the court has left transgender people vulnerable in all sorts of ways by failing to engage with the social context in which legislation like Tennessee’s is enacted.

This is a law that on its face was targeting transgender kids and “there’s a long tradition, even in rational basis review, of the court saying you can’t single out a particular group for unfavorable treatment just because of animus,” he said.

In the majority ruling, Roberts said laws based on sex aren’t subject to a higher standard of review unless they’re “motivated by an invidious discriminatory purpose” But Redfield said that opens up a new question: what do petitioners need in order to show something was motivated by invidious discrimination?