The Supreme Court of the United States (SCOTUS) returned to the bench Oct. 7 — the traditional “first Monday in October.” Among the top cases Court watchers are looking at are debates over transgender rights, guns and whether underage teens have access to porn websites.
Since last term, which ended in June, the SCOTUS has agreed to review 43 cases. Decisions in those cases are usually released in June unless it is an emergency case requiring an immediate response.
Gender-affirming care
One of the biggest issues affecting LGBTQ+ people to be taken on by the SCOTUS this session is a case that could decide the constitutionality of gender-affirming care bans for minors. The case the Court agreed to hear surrounds a Tennessee law. That case, U.S. v. Jonathan Skrmetti, (Skrmetti is attorney general for Tennessee), revolves around the Biden administration’s challenge to Tennessee’s ban on gender-affirming care. The administration argues that the Tennessee law directly violates trans people’s equal protection rights.
The case is critically important as how the Court rules will impact other laws passed by Republican-led legislatures in about a third of the states. Anti-trans laws related to gender-affirming care comprise much of the anti-LGBTQ policy being enforced in the states, all of which is imposed by GOP lawmakers.
In their filings submitted by Solicitor General Elizabeth Prelogar, the Biden Department of Justice wrote, “The laws are inflicting profound harms on transgender adolescents and their families by denying medical treatments that the affected adolescents, their parents, their doctors, and medical experts have all concluded are appropriate and necessary to treat a serious medical condition.”
Prelogar also wrote, “Given the wave of similar laws adopted in States around the country and the near-uniform conclusion by district courts that those laws are unconstitutional, respondents cannot plausibly deny that this Court will ultimately have to resolve those circuit conflicts. Delaying that authoritative resolution would needlessly leave transgender adolescents and their families in limbo and inflict particularly acute harm in Tennessee and other States where these laws have taken effect.”
When the SCOTUS agreed to hear the case, Skrmetti, a Republican, said, “We fought hard to defend Tennessee’s law protecting kids from irreversible gender treatments and secured a thoughtful and well-reasoned opinion from the Sixth Circuit.”
Skrmetti added, “I look forward to finishing the fight in the United States Supreme Court. This case will bring much-needed clarity to whether the Constitution contains special protections for gender identity.”
Why the Tennessee case was chosen
The ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump Strauss Hauer & Feld LLP asked the SCOTUS 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.
Election rhetoric
The issue of gender-affirming care has been a hot-button issue in the election as Donald Trump has claimed falsely that gender-affirming surgeries are being performed in schools. Trump has been making false claims about gender-affirming care at his rallies and even at the Sept. 10 debate. He has also been claiming schools are engaged in gender-affirming surgeries.
In addition, a Trump attack ad aimed at Democratic nominee Vice President Kamala Harris goes a radical step forward by melding truth about Harris’s support for trans health care in prisons — a legal requirement in California when she was Attorney General — with transphobic rhetoric and imagery.
Trump is promoting the ad on his website and it is running frequently in the critical Pennsylvania swing state market with the tagline “Kamala Harris is for ‘they/them,’ Donald Trump is for you.”
Advocates lend support to Biden case
The Tennessee case has already attracted friend-of-the-court amicus briefs from a myriad of individuals, like trans actor Elliot Page, as well as advocacy groups. As the deadline for all written filings from Tennessee approach, there may be many more additional such briefs.
Nineteen states have laws that bar treatment of minors for gender dysphoria. More than 50 transgender adults, including Page, filed a brief in support of the administration. And several LGBTQ+ legal organizations, including GLAD (GLBTQ Legal Advocates & Defenders) and the NCLR (National Center for Lesbian Rights), submitted a brief in support of the U.S. government’s appeal.
“The healthcare that SB1 and the twenty-three laws like it prohibit is lifesaving,” the signers wrote, adding that Tennessee’s view that such care worsens distress or is unsuitable for adolescents is contradicted not only by medical science but also by their own experiences and the “overwhelming majority” of transgender people.
“Early care relieved gender dysphoria and, for some, has even saved their lives,” they wrote.
Members of Congress, including 11 senators and 153 members of the House, also submitted a brief in support of the government’s case. Among those are Sen. Edward J. Markey (D-MA), Sen. Jeff Merkley (D-OR) and Representatives Mark Pocan (WI-02), Jerrold Nadler (NY-12) and Frank Pallone (NJ-06). The members’ brief urges the Court to strike Tennessee’s ban, highlighting that the ban is driven by animosity toward transgender people and how health-care bans dictate decisions that should be made between patients, health providers and their families.
SCOTUS declines some LGBTQ+ cases, ponders others
On Oct. 4, the SCOTUS agreed to review the Sixth Circuit’s ruling in Ames v. Ohio, in which a heterosexual employee of the Ohio Department of Youth Services says she was discriminated against because she is not gay. She has challenged lower court rulings that say she cannot sue under a law prohibiting sexual orientation discrimination.
In June, the SCOTUS declined to take up appeals of two cases — Department of Education v. Louisiana and Department of Education v. Tennessee — about bans on transgender women participating in women’s and girls sports competitions. Both cases relate to Bostock v. Clayton County, which addresses discrimination based on sex and sexual orientation and gender identity, as does the Ames case.
The Court has yet to decide if it will hear the case of Mahmoud v. Montgomery County, in which a group of parents in Montgomery County, Maryland challenged the local school board’s decision to include LGBTQ-inclusive books in the English Language Arts curriculum without providing parents notice or the option to opt their children out of exposure to these books. The parents said this violated their right to free exercise of religion; the Fourth Circuit panel disagreed, saying the parents were free to exercise their beliefs and teach their children anything they wanted. The books which prompted the conflict were LGBTQ-inclusive storybooks for elementary school children.
There is not a date set yet for oral arguments in the Tennessee case or Ames case.