Any Other Supreme Court Would Protect Trans Kids

Perhaps prior to conservatives putting the Supreme Court in a headlock, hearing that the Court is taking up United States v. Skrmetti, the case challenging Tennessee’s gender-affirming care ban for minors, might be welcome news. With the Roberts Court, though, it doesn’t bode well.

Certainly the law in this arena could use clarification, as federal appeals courts have come to different conclusions—one of the usual reasons the Supreme Court takes a case. The 11th Circuit, in ruling on Alabama’s ban, ruled as the Sixth Circuit did in Skrmetti, upholding a ban on gender-affirming care. The Seventh Circuit let Indiana’s ban go into effect earlier this year. Arkansas’ ban is proceeding through the Eighth Circuit after being permanently enjoined by a lower court last year. There are federal district court cases in multiple states, and 19 states have passed similar laws restricting gender-affirming care.

Going to the Supreme Court is dicey. The Court has proven itself eager to impose a narrow evangelical morality on the country, and this gives them the chance to do so. The alternative is also bad—a continual churn of conservative states banning gender-affirming care, requiring a whack-a-mole litigation strategy across multiple jurisdictions. So, the government asked the Court to decide nationwide whether Tennessee’s law violates the equal protection clause of the 14th Amendment.

The text of that clause, which forbids the government from “deny[ing] to any person within its jurisdiction the equal protection of the laws,” does not mention sex or gender. However, for decades, the Supreme Court has held that it applies heightened scrutiny to “distinctions based on gender.” Put another way, Supreme Court precedent requires the government to show an “exceedingly persuasive justification” for laws that discriminate based on sex or gender or it will determine the law violates the equal protection clause.

The Tennessee law prohibits the use of gender-affirming care such as puberty blockers and hormones for minors, but not for everyone. It only bans their use for “enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex or treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Someone who is assigned male at birth couldn’t receive puberty blockers or estrogen as part of their transition process, but someone assigned female at birth could receive those same drugs for conditions such as precocious puberty, where puberty begins as early as 8 years old.

Here’s where the core of this fight comes in. Ultimately, this case isn’t just grounded in the conservative legislative project of destroying access to gender-affirming care—it’s also grounded in the conservative judicial project of unwinding the Court’s holding in Bostock v. Clayton County. There, the Court held that firing someone for being gay or transgender violates Title VII, which bans discrimination on the basis of sex. Bostock also contains a broader holding, finding “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Conservative courts have tried very hard to ignore the broader holding of Bostock. In Bear Creek Bible Church v. EEOC, right-wing fan favorite Texas Judge Reed O’Connor ruled that Bostock did not bar an employer from imposing sex-specific dress codes or requiring employees to use the bathroom that corresponds to their sex assigned at birth. Federal judges in Oklahoma and the 11th Circuit declined to extend Bostock to the situation here—a prohibition on gender-affirming care.

The appeals court in Skrmetti also ignored Bostock‘s broader holding, refusing to extend it to equal protection claims. The Tennessee law, therefore, only needed to survive a rational basis review, the most deferential. This means the government only needs a legitimate state interest rather than an exceedingly persuasive justification.

The state interest the Sixth Circuit found to be legitimate was that Tennessee has a compelling “interest in encouraging minors to appreciate their sex” and in prohibiting procedures “that might encourage minors to become disdainful of their sex.” That vague interest must be weighed against the real-life explicit, irreversible, and well-documented harm that transgender children denied gender-affirming medical care suffer. Adolescents forced to endure gender dysphoria and the permanent physical changes puberty brings can experience “depression, eating disorders, substance abuse, self-harm, and suicidality.” Further, there is a consensus among major medical organizations that the gender-affirming care banned by Tennessee is the appropriate way to treat gender dysphoria in minors.

In a rational world, before conservatives got a supermajority on the Court, this case would be a no-brainer. First, the Court would not simply discard its own broad holding from Bostock. Next, an amorphous statement about making minors “appreciate their sex” could not possibly stack up to the level of harm experienced by children experiencing dysphoria and that there are no genuine medical concerns about such treatment.

But these days, we have a Court that has run roughshod over precedent in its eagerness to give religious conservatives everything they want. It’s also a Court dominated by a deep cruelty. The conservative justices have used their vast power to dismiss the needs of those who can get pregnant, same-sex couples, and the unhoused, just for a start. They’ve shown no hesitation in allowing bigotry to drive their decisions.

However, there’s no other possible path forward to advance the interests of minors needing gender-affirming care than taking a chance and putting it before the Court. It’s the most slender reed, but it’s all trans kids have.

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