Supreme Court to consider whether states can ban gender-affirming care for trans minors

The Supreme Court announced on June 24 that it granted the federal government’s petition for certiorari in United States v. Skrmetti, in which Solicitor General Elizabeth B. Prelogar, the government’s chief lawyer for Supreme Court cases, argued that the Sixth Circuit Court of Appeals’ decision to reverse a preliminary injunction blocking Tennessee’s law forbidding gender-affirming care for transgender minors violates the 14^th Amendment Equal Protection rights of transgender minors.

In the same opinion, the Sixth Circuit also reversed a preliminary injunction against Kentucky’s similar statutory ban, rejecting the district court’s determination that plaintiffs were likely to prevail on their argument that these state laws violated both the Equal Protection rights of the minors and Due Process rights of their parents, who were supporting their attempts to get gender-affirming care. The leading named defendant is Tennessee Attorney General Jonathan Thomas Skrmetti, whose office would play a role in enforcing the Tennessee law. The case presents important questions of first impression to the Court, which has never previously ruled whether and how the Equal Protection Clause may protect people from discrimination by the states because of their transgender status.

The Sixth Circuit’s ruling reversed preliminary injunctions that had been issued by district judges in both Tennessee and Kentucky in lawsuits brought on behalf of transgender minors and their parents by the American Civil Liberties Union (ACLU) and the National Center for Lesbian Rights (NCLR). The plaintiffs in both cases filed petitions with the Supreme Court seeking to reverse the Sixth Circuit rulings. After these petitions were filed, the Solicitor General filed a petition on behalf of the United States, asking the Supreme Court to review the Sixth Circuit ruling in the Tennessee case, but only on the question whether Tennessee’s law violated the Equal Protection rights of transgender minors. All three petitions were listed on the Supreme Court’s weekly conference agendas for several months before the Court granted only the Solicitor General’s petition. 

The Court made no announcement concerning the plaintiffs’ petitions in the Tennessee and Kentucky cases, each of which presented both the Equal Protection and Due Process issues. When the court grants only one of several petitions raising the same legal question, its usual practice is to keep the other petitions “on hold” until it decides the one case it is reviewing, and then take action on the other petitions consistent with the decision that it issues. By granting only the Solicitor General’s petition, the court gave the federal government, rather than the plaintiffs in the underlying cases, the principal role in seeking to persuade the court that the state laws are unconstitutional on equal protection grounds.

Although the specific focus in this case is gender-affirming care for minors, how the court decides the case will likely have a much wider effect, since a central question it may have to address is whether discrimination because of transgender status is a form of sex discrimination, which would require the states to meet the burden of showing that their ban substantially advances an important public interest, the “heightened scrutiny” test, when challenged on constitutional equal protection grounds. In the lower courts, the states argued that their statutes did not discriminate based on transgender status, but if they were found to involve intentional discrimination on that basis, the states argued that the “heightened scrutiny” test did not apply. They argued that the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that employment discrimination based on transgender status was forbidden by Title VII of the Civil Rights Act of 1964 as a form of sex discrimination, was an interpretation of a particular statute that did not decide the constitutional question. Lower federal courts are divided on this question, which is probably one of the reasons the Supreme Court granted this petition: to resolve that question.

The answer to the constitutional question raises issues beyond gender-affirming care because the Supreme Court’s possible adoption of a “heightened scrutiny” standard has implications for many other frequently litigated transgender law issues, including birth certificates, drivers’ licenses, public restrooms, public schools (including sports participation and names and pronouns), public employee benefits plan coverage for gender-affirming care (including the Medicare and Medicaid programs), and participation rights under a broad range of federal and state programs. In each context, a heightened scrutiny test would make it easier for transgender plaintiffs to win the argument that discriminatory treatment violates their constitutional equal protection rights. So far, for example, several lower courts have been receptive to the argument that exclusion of coverage for gender-affirming care under state Medicaid programs violates the equal protection rights of transgender participants in those programs.

If the court does not embrace heightened scrutiny for transgender discrimination claims, the standard would be the deferential “rational basis” test, under which the plaintiffs would bear the burden of showing that the state had no rational basis for adopting its challenged policy. Some courts applying the rational basis test on the issue of gender-affirming care for minors have focused on the dueling expert testimony submitted to the court, in which the states contend that so long as credentialed experts argue that gender-affirming care for minors is dangerous to their long-term health, or that its benefits are not scientifically proven, it is rational for the state to outlaw the practice. Their position has been bolstered by the action of several countries in Europe that have recently “cracked down” on routine provision of gender-affirming care to transgender minors, even though those countries have not imposed the kind of absolute bans that have been passed now in more than half of the US states. The standard of review that the court favors for transgender cases may be outcome-determinative on the issue of gender-affirming care.

As noted previously, the three petitions seeking review of the Sixth Circuit’s decision were before the court for several months before finally being granted now, after the Court has concluded hearing arguments for its current term.  This means that the briefing by the federal government, the state attorney general offices, the underlying plaintiffs, and any groups or individuals who seek to file amicus briefs, will take place over the summer. The court doesn’t announce when a particular case will be argued until all briefing of that case is completed, and then cases are assigned hearing dates for the new term, which are usually announced beginning in September. Government parties routinely ask for extensions of time to file their briefs, so it is hard to predict when the briefing will be completed and the case lined up for an available hearing date. 

The court begins hearing cases in October, usually at the relatively relaxed pace of one or two cases per hearing date and three hearing dates per week, and it has already granted review in 23 cases, enough to fill up the several weeks of hearing dates, so it is possible this case may not be argued until November, December, or even later. Once a case is argued, there is no formal time limit on how long the court takes to decide the case and issue opinions. The most controversial cases are sometimes the last to be decided, even when they are argued early in the court’s term. This case may not be decided until next spring or even in the term’s final weeks — that is, assuming that Donald Trump is not elected president in November.

If Trump is elected, he would become president on January 20, 2025, and shortly thereafter he would nominate a new attorney general and a new solicitor general. A new administration could take a look at cases pending in the Supreme Court in which the government is a party and might decide to change the government’s position on how those cases should be decided. If this case is argued before January 20, the Biden administration will have presented its argument to the court, but a new Trump administration might inform the court that the government no longer seeks reversal of the Sixth Circuit’s opinion and requests that the Court dismiss the appeal.

If that happens, what happens to the petitions filed by the plaintiffs in the underlying Tennessee and Kentucky cases? It would be up to the court to decide whether to grant those petitions and substitute those parties as the petitioners in the case, and whether to hold new hearings if necessary to let them present their arguments, especially if the court did not grant them the right to appear and argue when the case was heard prior to January 20 and the new solicitor general seeks to present the government’s new position to the court. One can play over the various factual permutations regarding the timing of argument and decision and realize that the election may play a significant role in whether the court actually decides this case, and if so, when?

Some commentators quickly concluded that if the court eventually rules on this case, it is likely to rule to uphold the Sixth Circuit’s opinion, given the 6-3 conservative Republican balance on the court, but that is not a foregone conclusion. The decision in the Bostock case was 6-3 that Title VII applies to transgender discrimination claims, with the opinion by Justice Neil Gorsuch, a Trump appointee, joined by Chief Justice John Roberts, a George W. Bush appointee. Justice Stephen Breyer, a Clinton appointee, was part of that majority, but his replacement, Justice Ketanji Brown Jackson, is President Biden’s sole appointee to the court.

If Gorsuch and Roberts agree with those who would apply the reasoning of Bostock to the question of transgender equal protection rights, it is possible there would be five votes to reverse the Sixth Circuit. All of this is quite contingent, however, on both timing and the unpredictability of Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, all Trump appointees who have not always voted in conservative lock step with the senior conservatives on the Court, Samuel Alito and Clarence Thomas. How this will all end is, consequently, as of now a mystery.