Supreme Court will hear largest transgender rights case in US history
At the U.S. Supreme Court this week, issues of child welfare, gender identity, and constitutional rights will converge in one of the most significant cases the court will decide this term.
Transgender issues have been at the heart of America鈥檚 culture wars in recent years. Legally, lawsuits concerning transgender rights have been percolating in the lower courts. On Wednesday one of those cases 鈥� which asks whether the state or parents are responsible for protecting vulnerable children 鈥� will be argued before the high court.
Transgender issues are relatively novel for the courts, and the justices have issued few rulings directly affecting them. The decision in United States v. Skrmetti 鈥� a complex, emotional lawsuit pertaining to medical care for transgender youth 鈥� has the potential to be a seismic one.
Why We Wrote This
Who should decide the best way to protect vulnerable children 鈥� their parents, or the state? That question lies at the heart of the biggest transgender rights case in U.S. Supreme Court history.
Transgender Americans have existed , but as their visibility in society 鈥� and their rights under the law 鈥� have grown in recent years, so has pushback. Hundreds of anti-trans bills, such as legislation restricting bathroom usage and banning the discussion of gender identity in schools, have been enacted , as states react to perceived threats to equality of the sexes and a rise in youth identifying as transgender.
Specifically, the U.S. is seeing an increase in the number of minors receiving a diagnosis of gender dysphoria, a mental disorder defined as a person鈥檚 distress at the mismatch between their gender identity and their sex assigned at birth. Treatments for the condition, which range from therapy to medication and surgery, are intended to help a person align their outward, physical traits with their gender identity. (Surgery is rarely prescribed for those under age 18.)
Some of these treatments, known broadly as gender-affirming care, have been prescribed for decades to children and teens without controversy. (One example is to prevent early puberty in girls, which can lead to adverse health effects.) But state lawmakers have been limiting their use to treat gender dysphoria, citing concerns that children could undergo permanent physical changes treating a mental illness that could be transient.
In the past three years, 26 states have enacted laws and policies limiting youth access to gender-affirming care. On Wednesday, the Supreme Court will hear oral argument in Skrmetti, a case challenging one such law enacted by Tennessee.
鈥淚t鈥檚 one of the biggest cases of the term, and possibly the biggest case the court has decided on transgender rights,鈥� says Craig Konnoth, a professor at the University of Virginia School of Law.
鈥淚ts impact depends on how narrowly or broadly the court rules,鈥� he adds. 鈥淚t could decide the effect of trans rights cases around the country.鈥�
Parental rights or states鈥� rights?
On constitutional questions, this Supreme Court is committed to interpreting the founding document in line with the original meaning of its authors. Thus, the decision in Skrmetti could hinge not on the text of the Tennessee law or on the science behind medical treatments for gender dysphoria, but on history and tradition.
That analysis may focus on one conflict: the rights of parents versus the rights of a government when it comes to the health and well-being of a child. These are arguments that have brought together some unlikely bedfellows.
In one amicus brief, a group of scholars argues that there is a strong history and tradition of states having limited powers to interfere in medical decisions that parents make for their children. Two of the scholars are William Eskridge, a Yale Law School professor central to the advancement of LGBTQ+ rights in recent decades, and Steven Calabresi, a co-founder of The Federalist Society and former clerk to conservative Justice Antonin Scalia.
鈥淔rom the beginning, American 鈥榝amily life鈥� has been a 鈥榩rivate realm鈥� that 鈥榯he state cannot enter鈥� without strong public justification,鈥� they write, quoting a 1944 Supreme Court opinion.
The 14th Amendment 鈥渢ranslated traditional responsibilities of parents into constitutional rights 鈥� with due allowance for states to adopt neutral public health regulations,鈥� they add.
Other scholars take a different view. When there is no clear medical consensus on the safety or effectiveness of a pediatric treatment 鈥� as Tennessee claims in this case 鈥� the state has an especially strong interest in regulating the availability of that treatment, says James Blumstein, a professor at the Vanderbilt University Law School.
鈥淭his is part of a longer tradition of governmental protection of children,鈥� he adds. 鈥淲hen a state faces this clinical uncertainty, it can protect minors from the use of surrogate decision-making.鈥�
What鈥檚 behind the rise in trans youth, and laws affecting them?
Transgender Americans account for about 1% of the U.S. population, and roughly 1 in 5 of them are aged 13 to 17, according to a from the Williams Institute at the University of California, Los Angeles School of Law. The percentage of teens who identify as transgender almost doubled between 2016 and 2022, the Williams Institute reported. In about the same time span, according to clinicians, gender dysphoria diagnoses have or
Exactly what accounts for this trend is unclear, experts say, and scientific research on the benefits and efficacy of gender dysphoria treatments is mixed. All these details tie in to the Skrmetti case. However, the high court only needs to resolve one question: Does the Tennessee law violate the equal protection clause of the Constitution?
That clause, a provision of the 14th Amendment, holds that no state can 鈥渄eny any person ... the equal protection of the laws.鈥� Over the past 160 years, the clause has been read to protect the rights of various minority groups, from newly freed slaves to same-sex couples.
bars health care providers from treating minors with puberty blockers, hormones, or surgeries when it鈥檚 for the purpose of 鈥渆nabling a minor to identify with, or live as, a purported identity inconsistent with the minor鈥檚 sex鈥� or treating 鈥渄istress from a discordance between the minor鈥檚 sex and asserted identity.鈥�
Though the treatments are allowed for cisgender youth, or those whose gender identity matches their sex assigned at birth, Tennessee claims that, because the law applies based on age and medical condition, it doesn鈥檛 run afoul of the equal protection clause. Fundamentally, the state argues that it has the right, and the responsibility, to protect children from risky and potentially irreversible medical treatments.
鈥淭he supposed benefits of these interventions are ... unproven at best and illusory at worst,鈥� state officials write in their brief. In passing SB1, 鈥淭ennessee acted rationally, reasonably, and compassionately to protect its children.鈥�
Last year, a District Court judge disagreed, blocking the law in part because it 鈥渆xpressly and exclusively targets transgender people.鈥� But months later, a panel of judges on the U.S. Court of Appeals for the 6th Circuit reversed that decision, reinstating the law.
Three transgender teens diagnosed with gender dysphoria filed the lawsuit, and the Department of Justice has intervened on their behalf. Their argument is also a simple one. Because SB1 applies only to minors diagnosed with gender dysphoria, they claim the law inherently discriminates on the basis of sex, and thus is unconstitutional.
Tennessee 鈥渃ategorically bans鈥� treatments only for gender dysphoria, meaning the treatments are banned for 鈥渁 tiny fraction of minors, while [remaining] available for all other minors,鈥� the U.S. writes in its brief.
鈥淏y defining the prohibited medical care based on the patient鈥檚 sex assigned at birth,鈥� the U.S. adds, 鈥淪B1 classifies based on sex, through and through.鈥�
Does Bostock v. Clayton hold clues for Skrmetti?
In justifying this claim, the U.S. and its supporters point to the Supreme Court鈥檚 last major transgender rights decision. In a shock 2020 ruling in Bostock v. Clayton County, the high court held that a federal antidiscrimination law protecting employees from being fired 鈥渂ecause of [their] sex鈥� also protects employees from being terminated based on their sexual orientation or gender identity.
The justices have not weighed in directly on a transgender rights case since Bostock, but experts say the court could take a different view of the transgender plaintiffs this time around.
鈥淭he plaintiffs are hoping that Bostock signals a modicum of friendliness to LGBTQ rights and people鈥� from the court, says Michael Boucai, a professor at the University at Buffalo School of Law. 鈥淲hether it does, I just don鈥檛 know.鈥�
The court has become more conservative, for one, with Trump-appointed Justice Amy Coney Barrett replacing the progressive Justice Ruth Bader Ginsburg. Another variance, experts say, is that while Bostock involved interpreting a statute, Skrmetti will involve interpreting the Constitution itself.
鈥淩eading Bostock to dictate the meaning of a constitutional provision is 鈥榠mplausible,鈥欌�� argues Tennessee, quoting a concurring opinion from Justice Neil Gorsuch 鈥� author of the Bostock majority 鈥� in a later case.
The case is certain to be historic in at least one respect. When Chase Strangio, a lawyer with the American Civil Liberties Union, appears before the court, it will be the first time an openly transgender lawyer argues before the Supreme Court.
But the case could be a landmark in other respects. The justices鈥� decision could also inform how courts view other laws affecting transgender Americans, from their participation in sports, to their use of preferred pronouns in schools, to their ability to update their sex on government documents.
鈥淗ow the court decides this case will tell us a lot about whether and how aggressively they will ... permit politicians to pursue an anti-LGBTQ agenda,鈥� says Professor Boucai.
Editor鈥檚 note: This article has been updated to correct the spelling of James Blumstein, who is a professor at the Vanderbilt University Law School.
