Earlier this year, the US Supreme Court agreed to review a decision by the Cincinnati-based US Court of Appeals for the Sixth Circuit, which had ruled that the challengers to Tennessee’s law banning gender-affirming care for minors had failed to show that they were likely to succeed in their claim that the law violates the constitutional rights of transgender minors, or their parents and their health care providers. The Sixth Circuit panel reversed the district court’s preliminary injunction blocking enforcement of the law.
The district court had found that the plaintiffs were likely to be able to prove that the law violated transgender minors’ equal protection rights, their parents’ due process rights, and the health care providers’ free speech rights. The Sixth Circuit panel, by a 2-1 vote, rejected all these findings. The Sixth Circuit’s decision also applied to a case from Kentucky, in which a trial judge’s preliminary injunction against a similar law had been appealed to the Sixth Circuit at the same time.
The Supreme Court had received three petitions seeking review of the Sixth Circuit’s decision. One was filed by the plaintiffs from the Tennessee case. Another was filed by the plaintiffs from the Kentucky case. Both of these petitions asked the Supreme Court to consider the equal protection, due process, and free speech issues. The third petition was filed by the Solicitor General of the United States, asking the court to review and overturn the Sixth Circuit’s decision, but only regarding the equal protection issue, as the government had intervened on the side of the plaintiffs in the Tennessee case to argue that the preliminary injunction should be upheld on equal protection grounds.
The Supreme Court granted the government’s petition for review and has issued no ruling on the other two petitions. Since the government is the petitioner, the case is titled United States v. Jonathan Skrmetti. (Skrmetti is the attorney general of Tennessee.) After the parties finished filing their briefs, the court announced that an oral argument will be held on Dec. 4, limited to the equal protection issue. Legal counsel for the Tennessee plaintiffs will also be allowed to present arguments alongside the attorney for the government.
The announcement of the hearing date was made before election day. The election of Donald Trump, who made opposition to gender-affirming care of transgender minors a centerpiece of the final weeks of his successful campaign for president, raises interesting questions about what is going to happen to this Supreme Court case. Trump has already announced that he will nominate a new Solicitor General, who would take office upon confirmation by the Senate sometime after January 20. In light of Trump’s campaigning on the issue, it seems likely that the new Solicitor General would inform the court that the federal government no longer seeks to restore the preliminary injunction and so is “changing sides” in the case and would like to see the appeal dismissed.
Given this likelihood, what is the fate of this case? Will the court actually decide it?
Important issues are at stake besides the question of gender-affirming care for minors. At the heart of the Sixth Circuit’s opinion was its conclusion that the state is entitled to discriminate against transgender people unless challengers of the discrimination can show that there is no rational basis for the challenged law. Under the Supreme Court’s equal protection precedents, the burden of proof in such cases is on the challengers of the law. But this burden is reallocated to the government if the challenged law discriminates on the basis of a “suspect classification.” The plaintiffs have argued in this case that the Tennessee law discriminates on the basis of sex, because its treatment of gender affirming care depends on the sex of the individual as identified at their birth. Discrimination based on sex is subjected to “heightened scrutiny,” which switches the burden of proof to the government.
If somebody previously presented as male but now asserts a female gender identity and seeks gender-affirming care to conform their body to that identity, they are denied treatment in Tennessee. But if they were assigned as male at birth and seek essentially the same sort of gender-affirming treatment to correct a condition of premature puberty or delayed puberty — that is, to affirm their gender as identified at birth — the same sorts of treatment are allowed.
Furthermore, the plaintiffs are arguing that because of societal bias against transgender people, government policies that discriminate against them should be considered suspect, as being most likely based on bias or stereotypes rather than on appropriate objective policy reasons, and thus subject to heightened scrutiny. This would require the government to show that the policy substantially advances an important public interest. Courts that have applied heightened scrutiny in transgender discrimination cases have generally concluded that the government has not met that burden.
Tennessee has defended the statute as a measure intended to protect minors from harmful treatment, based on the argument that gender-affirming care is harmful to minors. The trial court rejected this argument based on the expert testimony presented by the parties, but the Sixth Circuit panel accepted it, based on the testimony that the trial judge had rejected.
If the Supreme Court decides this case rather than dismissing it, it would need to rule on the appropriate standard for judicial review, addressing an issue that so far it has evaded: whether government discrimination against transgender people is subject to heightened scrutiny. This question is relevant to the full range of subjects about transgender rights that are being litigated in the courts, including birth certificates, driver’s licenses and state ID cards, and any other policy where transgender rights are implicated.
Meanwhile, while the Tennessee case is pending before the Supreme Court and the Kentucky case remains on hold, challenges to state bans on gender-affirming care for minors continue to be litigated in lower federal and state courts. On Nov. 13, a three-judge panel of the Chicago-based U.S. Court of Appeals for the Seventh Circuit ruled 2-1 in favor of Indiana’s appeal from the trial court’s preliminary injunction against that state’s ban on gender-affirming care. The majority opinion in the Seventh Circuit panel reached the same conclusions as the 2-1 decision by the Sixth Circuit, reversing a preliminary injunction that had been issued by the trial judge. This ruling was consistent with some recent rulings by other federal appeals courts, including several decisions by the Atlanta-based 11th Circuit and, hot off the press, a ruling on Nov. 25 by a state court trial judge in Cole County, Missouri, rejecting a constitutional challenge to that state’s ban on gender-affirming care.
The medical science underlying the issues in these cases is hotly disputed by expert witnesses. At present, the leading American professional medical associations have endorsed the use of gender-affirming care for minors in appropriate cases (where extreme gender dysphoria is diagnosed) and have joined in amicus briefs arguing that position to the courts. Lined up against them are conservative advocacy groups, which cite developments in Europe, where some countries that once allowed such care have recently pulled back and placed restriction on it, although none of them have banned it outright as the contested state laws have done in the United States. This is an issue on which public opinion evidenced in polling suggests a slight majority of the public would support the position that Trump took in the presidential campaign, even as professional medical opinion in the United States has, up to now, been firmly behind the challengers to these laws.
What will happen in the months ahead as the federal government “changes sides” on the issue with the new administration is anybody’s guess, but things don’t look very promising for the advocates of gender-affirming care for minors.
