Trans rights face Supreme Court test as state bans youth care

(Bloomberg) — Transgender rights are set to reach a legal turning point on Wednesday as the U.S. Supreme Court considers the constitutionality of a state law banning gender-affirming treatments for minors.

Less than five years after a judge outlawed job discrimination based on gender identity and sexual orientation, LGBTQ rights advocates have filed a case — and a court case — that could be even more challenging.

It’s a fraught time for transgender Americans, as President-elect Donald Trump returns to the White House after campaigning on a promise to roll back transgender rights. The conflict will determine whether the court’s 2020 ruling becomes a high-water mark for the movement as resistance mounts, especially in conservative states.

At issue is a Tennessee law that bans the use of puberty blockers, hormone therapy and surgery to treat teenagers with gender dysphoria, a disorder characterized by a person’s gender identity that is inconsistent with their birth sex pain.

Tennessee is one of about two dozen states to enact it starting in 2021. A decision to support the measure could mean one in three U.S. transgender youth will live in states without legal access to care, said Elana Redfield of Federal Policy UCLA School of Law William James, director of the Institute for Research on Sexual Orientation and Gender Identity.

Opponents of the bans say they go against widely accepted clinical guidelines for treating gender dysphoria in young people. The American Psychological Association and other mental health groups told the judge in court documents that gender-affirming care “can reduce suicide, depression, and anxiety and improve overall psychological functioning and mental health.”

Supporters of the ban say the measures protect vulnerable children from dangerous medical procedures. “It is difficult to determine whether a child experiencing psychological distress will best respond to permanent, life-changing intervention or may improve with less drastic treatment,” a brief filed by 56 doctors said.

Tennessee Attorney General Jonathan Schemetti said the state Legislature enacted the law last year amid a sharp increase in gender dysphoria diagnoses among minors. About 1.4% of Americans ages 13 to 17 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 government argued that the measure violated the Constitution’s equal protection clause because the treatment is considered illegal when used to treat gender dysphoria but is legal for other purposes.

Three transgender youth and their families, represented by the American Civil Liberties Union, also challenged the law.

“Tennessee law allows people assigned male at birth to take testosterone, but not people assigned female at birth,” said Georgetown University law professor David D., who resigned this year as national legal director of the American Civil Liberties Union. David Cole said. “This is treating someone differently because of the sex they were assigned at birth.”

The Supreme Court accepted a similar argument in a 2020 employment bias case. Two conservatives, Justice Neil Gorsuch and Chief Justice John Roberts, joined the majority in a 6-3 vote to interpret the longstanding ban on sex discrimination in the workplace to cover sexual orientation and Gender identity. The decision is 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 the case differs in potentially key ways. First, it sheds light on the meaning of a federal statute that prohibits discrimination “because” of a person’s sex—a phrase that does not appear in the Constitution.

Supporters say Tennessee’s law is fundamentally different from employment discrimination because the state does not treat the two genders differently but instead prohibits treatments it considers risky for boys and girls.

May Mailman, director of the Independent Women’s Legal Center, said the law “doesn’t say men can’t do it and women can’t do it.” The Independent Women’s Legal Center, an advocacy group, filed a brief in support of Tennessee. “It says no one can obtain these types of drugs for these types of purposes.”

Perhaps most importantly, the Supreme Court has become more conservative than it was when it issued its employment bias ruling in June 2020. Justice Amy Coney Barrett’s confirmation later that year gave the Supreme 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 said its decision to exempt two teenagers from suit over the injunction was a procedural step and not a ruling on the merits.

The Tennessee case could be a precursor to other polarizing battles over transgender rights. Idaho and West Virginia are appealing, asking the Supreme Court to allow states to explicitly ban transgender women and girls from competing on girls’ school sports teams.

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

It’s also possible that the courts won’t resolve any such cases this semester. Trump’s election victory creates the possibility that the federal government will change its position in the lawsuit. The court can then throw out the case or ruling based on arguments made by the transgender youth and their families.

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

–With help from Kelsey Butler.

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