Legal scholars worry Supreme Court may prioritize “politics” over “real stakes” in trans rights case

SCOTUS announced it was taking up a case on transgender rights on the second anniversary of the Dobbs decision

By Tatyana Tandanpolie

Staff Writer

Published June 25, 2024 3:32PM (EDT)

The Supreme Court of the United States building is seen in Washington D.C., United States on June 13, 2024. (Celal Gunes/Anadolu via Getty Images)
The Supreme Court of the United States building is seen in Washington D.C., United States on June 13, 2024. (Celal Gunes/Anadolu via Getty Images)

The Supreme Court said Monday it will settle a legal battle over state bans of gender-affirming care in its next session, accepting for review what experts say could be one of the most pivotal cases for transgender rights  — should the justices take the opportunity to make it so.

The case pertains to a Tennessee law restricting transgender minors' access to puberty blockers and hormone therapy. The Sixth Circuit Court of Appeals in Cincinnati grouped the legal challenge with a similar case from Kentucky and allowed both laws to go into effect after they were blocked by lower courts. The high court opted not to act on a separate appeal from Kentucky.

The move comes amid a wave of Republican-led states enacting restrictions on the lives of trans people — and pushing many more — in areas like healthcare, school sports and bathroom usage. The Biden administration, which appealed to the court in an effort to block the state bans, has instead expanded protections for transgender Americans, including in a new federal regulation aiming to protect trans students, the Associated Press reports.

"This is a political Supreme Court, and transgender health care is a polarizing issue," Jessica Clarke, a USC Gould School of Law professor specializing in anti-discrimination law with a focus on sex, gender and sexuality, told Salon. "I am worried that the decision will be driven by politics rather than principle."

The Supreme Court has rarely taken up cases around transgender rights, instead avoiding various opportunities to offer a definitive opinion on the group's protections. This case, LW. v. Skrmetti, will mark the first time the high court will squarely determine whether transgender people in the United States will have equal protections under the 14th Amendment — and is poised to have myriad legal ramifications beyond it, according to Ruth Colker, a professor of law at The Ohio State University specializing in constitutional law and LGBTQ rights.

"This is a constitutional challenge, and the argument is that the state is treating transgender people differently than other people who are similarly situated — other young people who are not transgender, and for some reason or other would benefit from hormone therapy can get it — but this group of young people cannot," she explained. "The court is being asked to decide whether there's some constitutional protection for people who are transgender" as in "does a state have to have an especially good reason for why it's treating them adversely?"

Most of the state restrictions to gender-affirming care for transgender youth face lawsuits, according to the AP, and the justices have previously allowed Idaho to enforce its ban after lower courts blocked them.

Other laws also curtail care for transgender adults, while proposed bills seek a ban on gender-affirming care altogether, The Hill reports

At least 24 states have enacted laws prohibiting trans women and girls' participation in certain women's or girl's sporting competitions, while at least 11 states have authorized laws that bar trans people from using the bathroom in public schools and other government facilities that aligns with their gender identity.

In deciding this case, the justices have the opportunity to apply "heightened scrutiny" to the care bans, which would offer particular protections against discrimination to transgender people that are "equivalent to the kind of protections that we now offer on the basis of gender and race," Colker explained.

Should the court decide against attaching heightened scrutiny, determining that the Tennessee statute did not discriminate on the basis of gender identity, trans Americans will be left vulnerable to "rationale basis scrutiny," which effectively allows states to offer some rationale for the disparate treatment of trans youth and "get away with it," she said. One such rationale could be as simple as gender-affirming-care-ban proponents' arguments that states are passing such legislation to protect students from making irreversible decisions before they're mature enough to do so as an example. 

The Supreme Court previously determined that this treatment of trans people could be understood as discrimination on the basis of sex at the statutory level, holding in the 2020 Bostock v. Clayton County decision that Title VII protects, gay lesbian and trans people from employment discrimination. 

But complicating the case further is the court's 2022 decision to overturn Roe v. Wade, which protected the fundamental right to privacy upheld by the 14th Amendment's due process clause and thus a person's right to seek abortion care.

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The upheaval of Roe made litigating these types of medical cases, which historically relied on the due process clause, much harder, Colker said, noting the "interesting irony" that the high court chose to take on the Skrmetti case on the second anniversary of the Dobbs decision. 

"It's not not just about abortion, it's about all of us who want to have the autonomy to make decisions about our personal lives, including, in this case, medical decisions," she said. "Roe offered some protection there that is now gone."

Trans youth having to travel out-of-state or move altogether to access gender-affirming care as a result of state bans runs "completely parallel" with the abortion travel pregnant people have been forced to undertake in droves in the aftermath of Dobbs, Colker argued. The need for longer-term if not continuous access to the treatment trans youth seek only exacerbates the challenge.  

"This is an everyday thing that they're going to be facing," she said, adding: "I can't imagine what it'd be like, being 13, 14, trying to get help and having all these barriers, and we know there's a high suicide rate already in the transgender community. This doesn't make that situation better."

The justices are expected to hold oral arguments for LW. v. Skrmetti during the next judicial session that begins this fall, with a final ruling anticipated for summer 2025. 

Clarke said she worries the "real stakes of this case — the tragic results when transgender minors are denied essential health care — may not be the focus of the oral argument," citing the focus on the implications for transgender people's restroom use during Bostock's oral arguments even though the plaintiffs of that case were not challenging any restroom policy. 

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Colker had a similar assessment, telling Salon she does not expect the Supreme Court to consider mental health in its decision-making either. Instead, she expects the justices to take a deeply theoretical approach to oral arguments, focusing on whether to grant trans Americans heightened scrutiny and the policy implications of either choice.

The opinion the court will ultimately come to is a more dicey matter. Should the justices' ruling hold that laws targeting trans minors are not subject to "any particular constitutional scrutiny," Clarke said, it would "give conservative state legislatures carte blanche to continue restricting transgender rights."

If the justices do deliver a victory to the plaintiffs, Colker said she expects the decision to be "mushy," with the justices only narrowly deciding trans youth can obtain gender-affirming treatment under "various safeguards" because parents, in conversation with physicians, find the care appropriate, and avoiding a broad relief that could apply to all transgender Americans who approach the court with civil rights cases.

The "court is not the one to hand a broad victory to the transgender community," she said, noting that every time the court — regardless of ideological leaning — has previously had a chance to attach heightened scrutiny to LGBTQ rights cases, it has "refrained from doing so." On the other hand, she said, "it might possibly feel uncomfortable handing them a broad loss as well, because anyone who opened up a newspaper knows the long list of things that the political right is trying to do." 

Clarke, however, said she remains hopeful that the Supreme Court will adopt a "moderate holding," instruct the Sixth Circuit it "applied the wrong standard to the case" in failing to attach any heightened scrutiny and return the case to the lower court to reevaluate the justifications behind the ban to "determine if they pass muster."

"With a 6-3 conservative Supreme Court, many think politics will prevail over principle," she said, adding: "My hope is that the court will issue an opinion that hews to its precedents and holds that when a legislature draws lines based on sex, those laws must be carefully scrutinized by judges."

By Tatyana Tandanpolie

Tatyana Tandanpolie is a staff writer at Salon. Born and raised in central Ohio, she moved to New York City in 2018 to pursue degrees in Journalism and Africana Studies at New York University. She is currently based in her home state and has previously written for local Columbus publications, including Columbus Monthly, CityScene Magazine and The Columbus Dispatch.

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