By Orion Rummler
Originally published by The 19th
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.
Attorneys working for LGBTQ+ rights involved in these cases are aware of the high stakes of asking a conservative-majority Supreme Court — the same one that overturned Roe v. Wade — to weigh in on gender-affirming care. But they feel obligated to use every tool available to them in response to a tidal wave of anti-LGBTQ+ legislation.
“The future of countless transgender youth in this and future generations rests on this court adhering to the facts, the Constitution and its own modern precedent,” said Chase Strangio, deputy director for transgender justice at the ACLU’s LGBTQ & HIV Project, in a press release.
Last year, the Biden administration made its own appeal for the Supreme Court to take up the case, siding with transgender youth and their families in Tennessee.
Tennessee’s case is focused on whether banning gender-affirming care violates the 14th Amendment, whether such laws burden parents’ right to direct the medical treatment of their children, and whether these bans should be subjected to heightened scrutiny — a more rigorous legal review to determine whether a law is constitutional or not.
Tennessee’s ban on the use of puberty blockers and hormone treatment for transgender minors took effect last July, after a three-judge panel on the 6th U.S. Circuit Court of Appeals made a preliminary decision in the state’s favor. Trans youth already receiving gender-affirming care were allowed to continue it until this March. Despite that brief grace period, physicians were forced to begin weaning trans adolescents off of their hormone treatments last year, in order to avoid suddenly stopping care.
In Kentucky, a similar gender-affirming care ban also went into effect in July 2023. U.S. District Judge David Hale, who had previously blocked the state’s ban amid an ongoing lawsuit, changed course after that 6th Circuit ruling in Tennessee’s favor. Hale also acted in anticipation of the 6th Circuit intervening on Kentucky’s ban.
In September 2023, the full 6th Circuit responded to both cases as it ruled that gender-affirming care bans for trans youth in Kentucky and Tennessee must remain in place amid ongoing lawsuits. The 6th Circuit argued that gender-affirming care bans do not discriminate on the basis of sex. If laws restricting abortion don’t trigger heightened scrutiny, then laws restricting gender-affirming care don’t either, Chief Judge Jeffrey Sutton wrote in the court’s decision.
Although both cases had been appealed to the Supreme Court, no action was taken on Monday in response to the petition from Kentucky.
The Supreme Court will not hear arguments for this case out of Tennessee until next fall, after the court’s term begins in October — so a final ruling may not come until 2025.
