The Supreme Court dealt a significant setback to trans rights advocates on Wednesday by upholding a 2023 Tennessee law that bans gender-affirming care for minors.
“The immediate impact is that nothing will change,” stated Kellan Baker, who leads the Institute for Health Research and Policy in Washington. “This doesn’t alter the legality of care in states without such bans. States that have chosen to restrict this care can do so, provided they withstand further challenges.”
Since 2021, 27 Republican-led states have enacted laws limiting transition-related medical treatments, including puberty blockers, hormone therapy, and surgical options for minors. New laws in Arizona and New Hampshire, the first northeastern state to impose such restrictions, simply prevent minors from accessing surgery.
In a 6-3 ruling, the Court upheld a prior decision that deemed Tennessee’s limitations did not breach the equal protection clause of the U.S. Constitution. The laws permit cisgender children and teens to access treatments that are banned for transgender minors, relying on age and diagnosis distinctions rather than gender identity.
Working with three Tennessee families, along with doctors and lawyers from the Biden administration, the ACLU, and Lambda Legal, advocates argued that the law constituted illegal sex discrimination, which would warrant greater scrutiny.
“We determined that was not the case,” wrote Chief Justice John Roberts. “Questions of policy are best left to elected officials and the democratic process.”
At least ten legal actions against state laws blocking gender-affirming care for minors contend that such restrictions violate the Equal Protection Clause of the 14th Amendment. While Wednesday’s decision may weaken that strategy, it’s not the sole approach being pursued by those opposing these laws.
There are more than a dozen ongoing lawsuits that assert the prohibition of transition-related care for minors violates not only the U.S. Constitution’s equal protection but also the due process rights under the 14th Amendment and other legal standards. A federal judge recently struck down Montana’s ban, citing violations of privacy, equal protection, and free speech under the Constitution.
“This ruling allows us to continue our challenges to other state bans,” remarked Baker from Whitman Walker.
Karen Loewy, a senior advisor and director at Lambda Legal, emphasized during a press call that those contesting state bans still have various legal avenues they can pursue. “The Supreme Court did not endorse or approve any other gender-affirming healthcare ban, implying that there are more options for fighting other forms of discrimination,” she noted.
Loewy also indicated that the ruling keeps discussions open regarding state and federal laws on sex discrimination and parental rights.
Nearly every case against the ban on gender-affirming care for minors argues that these laws infringe on parental rights regarding medical decisions for their children.
“As a parent, I know my child better than government officials,” expressed Samantha Williams, the mother of a transgender teenager involved in the Supreme Court case.
The ruling raises questions regarding how the opponents of transition-related healthcare might adapt their legal strategies based on the Court’s findings.
In Arkansas, the ACLU asserted in 2023 that the ban on gender-affirming care for minors violated the Equal Protection Clause and other constitutional rights.
“We need to observe, but this ban could be challenged because of the Supreme Court’s ruling on equal protection and other grounds,” said Lindsay Dawson, director of LGBTQ Health Policy at KFF, a nonprofit health policy research organization. “This area is likely to see ongoing litigation that remains unresolved.”
In a statement following Wednesday’s decision, Arkansas Attorney General Tim Griffin mentioned he is preparing an official update for the Court of Appeals regarding how the Supreme Court’s ruling could affect the state’s ban established in 2021.
“Since our laws mirror Tennessee’s, today’s decision is beneficial for our case in the U.S. Court of Appeals,” he added.
Currently, Montana and Arkansas are the only two states with bans on gender-affirming care for minors that are subject to court injunctions.
Interestingly, the Supreme Court’s decision also did not extend the implications of a previous ruling from Bostock v. Clayton County, which addressed discrimination based on gender or gender identity within the context of employment.
Several lawsuits challenging bans on care for minors assert that the Bostock ruling should apply in various contexts beyond workplace discrimination. The previous administration had tried to leverage Bostock’s reasoning to support non-discrimination policies for transgender individuals in healthcare and sports, an effort largely dismissed by conservative leaders and the courts.
“We’re yet to fully understand where Bostock’s implications apply outside Title VII. It remains to be seen,” Dawson commented.
“That’s an aspect the Bostock Court was careful to highlight,” she added. “The Court indicated that its ruling was very narrow, leaving open the question of how future courts might interpret it outside of Title VII.”
