The U.S. Supreme Court has agreed to hear a legal challenge brought by the United States Solicitor General Elizabeth Prelogar, Tennessee families and a medical provider against a 2023 Tennessee state law banning gender-affirming medical care for transgender youth. This marks the first time the SCOTUS will rule on the constitutionality of statewide bans to such care.
United States v. Skrmetti was initially brought by Samantha and Brian Williams of Nashville, Tennessee and their 15-year-old transgender daughter, two other plaintiff families filing anonymously, and Memphis-based medical doctor Dr. Susan Lacy. All are challenging a Tennessee law banning gender-affirming care for transgender people under 18.
Why This Case Was Filed
The ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump Strauss Hauer & Feld LLP asked the Supreme Court to review a September 2023 decision by the Sixth Circuit Court of Appeals allowing Tennessee’s ban to stay in effect. The U.S. intervened in the plaintiffs’ case at the district court and also asked the court to review the Sixth Circuit Court decision. The Tennessee law prohibits medical providers from treating transgender youth with evidence-based gender-affirming medical treatment and requires youth receiving gender-affirming care to end that care by March 31, 2024.
The ACLU said, “Applying the Supreme Court’s 2020 ruling in Bostock v. Clayton County and other long-standing precedents, trial courts have blocked such bans in Arkansas, Alabama, Florida, Georgia, Idaho, Indiana, Kentucky, and Tennessee. In June 2023, a federal court in Arkansas struck down that state’s ban on gender-affirming care after a two-week trial in the first and only post-trial ruling on the constitutionality of such a law, finding it violated the Equal Protection and Due Process clauses of the Fourteenth Amendment as well as the First Amendment of the United States Constitution.”
In choosing the Tennessee case,, the justices had to consider whether to hear two challenges to transition care — the Tennessee appeal and one centered on a Kentucky law. The SCOTUS agreeing to hear the case suggests that the justices were convinced this issue needs to be adjudicated.
Addressing Title IX
The SCOTUS decision to hear the case also means the court could choose to expand on their 2020 ruling in Bostock v. Clayton County. In that landmark civil rights decision, the court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexuality, sexual orientation and gender identity. That ruling has been deemed one of the most important legal decisions regarding LGBTQ+ rights in the U.S., along with Lawrence v. Texas (2003) and Obergefell v. Hodges (2015). The majority opinion was authored by Neil Gorsuch, who read the case through a textualist prism related to discrimination “because of sex” as prohibited by Title VII. The dissenters in the 6-3 ruling were Samuel Alito, joined by Clarence Thomas. A separate dissent was written by Brett Kavanaugh.
Whether the conservative justices will see Title IX as they did Title VII is a compelling question for their ultimate findings. In the Bostock case, Ruth Bader Ginsburg and Stephen Breyer were still on the court, so it was a 5-4 balance with Chief Justice John Roberts as a reliable swing voter. That 4-4 balance of conservatives and liberals no longer exists. Will the court decide that anti-transgender discrimination is a form of sex discrimination and thus is covered under the equal protection clause or will they do what they did with Roe and ignore all precedent?
The Tennessee case will be heard in the court’s next term, which begins the first Monday in October. A specific date has not yet been set for oral arguments, but they could happen in the month preceding the presidential election, in which LGBTQ+ issues have become a flashpoint, with President Joe Biden supporting trans rights and Donald Trump and the GOP being outspoken against trans rights, referring to “transgender insanity” during his June 22 rally at Temple University.
Last month, Trump said he will end a series of LGBTQ+ protections established by the Biden administration “on day one” of his presidency if he is reelected in November, during an appearance on “Kayal and Company,” a conservative talk radio show in Philadelphia.
The SCOTUS decision to address the issue could impact 25 states that have enacted such restrictions. As PGN has reported extensively, Republican-led state legislatures have pushed to curtail transgender rights. Laws that target gender-transition care and that regulate other trans issues, including which bathrooms students and others can use and which sports they can play and with whom.
Conflicting Lower Court Rulings
These issues continue to come before the courts. On April 29, a federal appeals court ruled that state health care plans and any government-funded insurance programs may not exclude coverage for gender-affirming medical care. The 4th U.S. Circuit Court of Appeals ruled 8-6 ordering North Carolina and West Virginia to disband any policies that exclude coverage for gender-affirming care.
And in a ruling that highlights the value and impact of gender-affirming care for trans youth early in the transition process, the U.S. Court of Appeals for the 4th Circuit ruled April 16 in B.P.J. v. West Virginia State Board of Education that Becky Pepper-Jackson — a 13-year-old transgender middle-school student in West Virginia — cannot be barred from cross-country running and track with other girls.
Pepper-Jackson has identified as female since she was eight and has been on puberty blockers that prevented male puberty and accelerated female puberty, according to court documents. This factor was critical to Pepper-Jackson’s case as the key assertion with regard to trans women in women’s sports is that trans women would have unfair advantage due to their testosterone levels and secondary sex characteristics.
The court said that Pepper-Jackson, now an eighth grader, has only participated in girls’ sports and her birth certificate identifies her as female. But since she also takes puberty blockers, it was crucial to the court’s decision. This case could influence the justices on the Tennessee case.
While some appeals courts have favored trans rights, the Biden administration’s attempt to expand protections for LGBTQ+ students under Title IX was stymied June 17 when a federal judge in Kentucky temporarily blocked the new rule in six states. That ruling followed a June 13 ruling by Chief Judge Terry Doughty in the Western District Court of Louisiana who issued a preliminary injunction blocking the rule from taking effect in Louisiana, Mississippi, Montana and Idaho until a final decision is issued by the judge on a lawsuit challenging the validity of the final rule.
LGBTQ Advocates Are Hopeful, Yet Wary
The court’s decision was met with approval from LGBTQ+ advocacy groups.
Chase Strangio, Deputy Director for Transgender Justice at the ACLU’s LGBTQ & HIV Project said in a press release, “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.”
Strangio said, “These bans represent a dangerous and discriminatory affront to the well-being of transgender youth across the country and their Constitutional right to equal protection under the law. They are the result of an openly political effort to wage war on a marginalized group and our most fundamental freedoms. We want transgender people and their families across the country to know we will spare nothing in our defense of you, your loved ones, and your right to decide whether to get this medical care.”
Tara Borelli, Senior Counsel at Lambda Legal, said in a statement, “This Court has historically rejected efforts to uphold discriminatory laws, and without similar action here, these punitive, categorical bans on the provision of gender-affirming care will continue to wreak havoc on the lives of transgender youth and their families.”
Borelli said, “We are grateful that transgender youth and their families will have their day in the highest court, and we will not stop fighting to ensure access to this life-saving, medically necessary care.”
Lucas Cameron-Vaughn, staff attorney at the ACLU of Tennessee said in a statement, “Tennesseans deserve the freedom to live their lives as their authentic selves without government interference, yet every day this law remains in place, it inflicts further pain and injustice on trans youth and their families. The Court has the power to protect trans youth’s right to access the healthcare they need by striking down this discriminatory law.”
Cameron-Vaughn said, “As politicians continue to fuel divisions for their own political gain, it’s crucial to recognize that for trans youth and their families, this isn’t about politics — it’s about the fundamental freedom to access vital, life-saving healthcare. We are steadfast in our commitment to fiercely advocate for trans youth and their families, ensuring they have the autonomy to access the care they need to survive and thrive, and the Court has the opportunity to make that future a reality.”
Plaintiffs Speak Out
Plaintiff Samantha Williams said, “It was incredibly painful watching my child struggle before we were able to get her the life-saving healthcare she needed. We have a confident, happy daughter now, who is free to be herself and she is thriving.”
Williams added, “I am so afraid of what this law will mean for her. We don’t want to leave Tennessee, but this legislation would force us to either routinely leave our state to get our daughter the medical care she desperately needs or to uproot our entire lives and leave Tennessee altogether. No family should have to make this kind of choice.”
The Williams’ daughter, who is not named in the suit, said, “I don’t even want to think about having to go back to the dark place I was in before I was able to come out and access the care that my doctors have prescribed for me.”
She said, “I want this law to be struck down so that I can continue to receive the care I need, in conversation with my parents and my doctors, and have the freedom to live my life and do the things I enjoy.”
The justices will determine when cases for next term will be heard later this summer.