U.S.A. Supreme Court to decide whether it’s unconstitutional to ban gender-affirming care for trans youth
June 26, 2024The Supreme Court in the U.S.A. has agreed to consider whether bans on gender-affirming care for trans youth are unconstitutional, following a petition from the Biden administration supporting trans youth and their families, according to ‘Louisiana Illuminator’.
The high court’s decision on this issue could significantly affect access to gender-affirming care nationwide, as 25 states currently ban such medical care for trans youth. The specific question before the Supreme Court is whether Tennessee’s ban on gender-affirming care violates the 14th Amendment's equal protection and due process clauses. Arguments in the case will be heard next fall. The Supreme Court’s ruling could also influence broader constitutional protections for transgender people, as the Tennessee case involves whether these bans discriminate based on sex and whether trans people are a historically discriminated group entitled to greater protection.
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The justices’ decision to address this question is notable. The Supreme Court has previously declined to intervene in several transgender rights issues, including cases related to bathroom access, school sports, protections under disability law, and confidential support for trans students. This non-intervention has often resulted in victories for LGBTQ+ advocates.
Even though the Supreme Court permitted Idaho to enforce its ban on gender-affirming care for trans youth in April, it did not then address the constitutionality of such bans or political involvement in medical care. Now, for the first time, the high court will tackle the issue, aligning with what LGBTQ+ rights attorneys had hoped for.
LGBTQ+ rights attorneys understand the risks of asking a conservative-majority Supreme Court — the same court that overturned Roe v. Wade — to rule on gender-affirming care. However, they feel compelled to utilise all available avenues in response to the surge 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 appealed to the Supreme Court to consider the case, siding with trans youth and their families in Tennessee.
Tennessee’s case questions whether banning gender-affirming care violates the 14th Amendment, whether such laws infringe on parents’ rights to direct their children’s medical treatment, and whether these bans should undergo heightened scrutiny — a more rigorous legal review to determine a law’s constitutionality.
Tennessee’s ban on 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 could continue until March. Despite this brief grace period, physicians began weaning trans adolescents off their hormone treatments last year to avoid abruptly stopping care.
In Kentucky, a similar ban on gender-affirming care also took effect in July 2023. U.S. District Judge David Hale, who had previously blocked the state's ban amid an ongoing lawsuit, changed his stance following the 6th Circuit’s ruling in Tennessee’s favour. Hale also anticipated the 6th Circuit’s intervention in Kentucky’s ban.
In September 2023, the full 6th Circuit ruled that gender-affirming care bans for trans youth in Kentucky and Tennessee must remain in place amid ongoing lawsuits. The 6th Circuit argued these bans do not discriminate based on sex. Chief Judge Jeffrey Sutton wrote in the court’s decision that if laws restricting abortion don’t trigger heightened scrutiny, then neither do laws restricting gender-affirming care.
Although both cases were appealed to the Supreme Court, no action was taken on Monday regarding the petition from Kentucky.
The Supreme Court will hear arguments for the Tennessee case next fall, after the court’s term begins in October, meaning a final ruling may not be issued until 2025.
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