Understanding the SCOTUS order on Idaho’s ban on gender-affirming care for youth

The Supreme Court issued an order on April 15 granting a stay of a trial court’s preliminary injunction that was intended to block enforcement of Idaho’s statutory ban on gender affirming care for minors. The court’s order provided no explanation of why the stay was granted, which is typical of orders issued by the court without an opinion on their so-called “shadow docket.” However, the court’s order only partially granted Idaho Attorney General Raul Labrador’s “Emergency Application” for the stay, stating that the preliminary injunction was stayed “except as to the provision to plaintiffs of the treatment they sought below.” The court’s order also said that the stay would remain in effect while the case was being litigated.

Understanding the meaning of this, and what the court actually decided, requires some background.

Idaho Governor Brad Little signed the “Vulnerable Child Protection Act” into law in April 2023, but it was not due to go into effect until Jan. 1, 2024. The law prohibits medical professionals from providing puberty blockers, hormones, or surgical alteration to minors for gender transition, although it uses different terminology to describe its prohibitions. Medical professionals who violate the statute can be found guilty of a felony and may face up to 10 years in prison. Thus, the law would make it nearly impossible to get a medical professional in Idaho to provide gender-affirming care to persons under age 18. The legislative history shows that the law was premised by the Republican-dominated legislature’s conclusion that any gender-affirming care for minors was harmful to minors, that minors are not capable of giving informed consent to treatment of this nature, and that their parents should not be able to give consent in their place.

Two transgender minors (using the pseudonyms Pam Poe and Jane Doe to preserve their confidentiality), with their parents suing on their behalf, filed their lawsuit claiming that the law violates their constitutional rights of equal protection and due process by effectively making the treatment which they were receiving unavailable in Idaho as of Jan. 1. In addition to filing the lawsuit, they filed a motion seeking a preliminary injunction to ensure that they could continue to receive their hormone treatments after the law went into effect. They are represented by the American Civil Liberties Union.

The plaintiffs were lucky to have their case assigned to Senior Judge B. Lynn Winmill. He is intimately familiar with transgender issues, having presided over a lengthy lawsuit concerning the struggle by transgender Idaho inmate Adree Edmo to get gender-affirming care, including surgery. The judge received expert testimony and made extensive factual findings in the Edmo case, reflecting a deep understanding of the issues involved with gender identity, gender dysphoria, and medical transition. The result was a historic ruling ordering the Idaho Department of Correction to provide gender-affirming care, including surgery, for Edmo. The Ninth Circuit affirmed Winmill’s ruling, and the Supreme Court denied the state’s petition to review it.

In his opinion in this case, issued on Dec. 26, 2023, Judge Winmill mentioned receiving hundreds of pages of evidence submitted by the parties, as well as hearing oral arguments and reviewing extensive briefs from the parties’ attorneys. While cautioning that his factual findings were preliminary because they were not based on hearing live witness testimony and weighing the credibility of the witnesses, it was clear that Judge Windmill was persuaded by the record and his prior experience with the issues that the plaintiffs have a strong case and were entitled to preliminary relief.

But he went one step farther, finding that to provide that relief to the anonymous plaintiffs, his preliminary injunction should bar all enforcement of the law while the case was being litigated, not just enforcement against the plaintiffs. He explained that this was necessary to preserve the confidentiality of the plaintiffs. The state balked at this, filing an “emergency” motion seeking a stay of the preliminary injunction, which was denied by Judge Winmill on Jan. 16 and subsequently denied by a three-judge panel of the Ninth Circuit. The state has also filed an appeal of Judge Winmill’s ruling, which is still pending.

Attorney General Labrador then filed an “Emergency Application for a Stay Pending Appeal” on Feb. 16. The application to the Supreme Court focused mainly on the “universal” scope of Judge Winmill’s injunction, arguing that the court should have limited preliminary relief to the plaintiffs. While Labrador’s application also contended that Judge Winmill erred in finding that the plaintiffs were likely to prevail on their argument that the law violates the 14^th Amendment, the state’s goal in this application clearly was to be able to let the law go into effect and not to have to wait for years until the case was finally decided on the merits.

Although the Supreme Court did not explain why it granted the application (with the narrow exception of continuing care for the plaintiffs being noted), the order was accompanied by two opinions, one by Justice Neil Gorsuch (also signed by Justices Clarence Thomas and Samuel Alito), and one by Justice Brett Kavanaugh (also signed by Justice Amy Coney Barrett) explaining their agreement with the court’s order, and a third opinion by Justice Ketanji Brown Jackson (also signed by Justice Sonia Sotomayor) explaining their disagreement with the court’s order. The only members of the court who neither wrote nor signed an opinion were Chief Justice John Roberts and Justice Elena Kagan, although Justice Kagan indicated, without explanation, that she would have denied the stay.

Both of the concurring opinions steered clear of the question of whether an injunction should have been issued, focusing instead on the question, previously raised by various members of the court in concurring and dissenting opinions in earlier cases, about whether and when trial judges should go beyond preliminary relief for plaintiffs to provide preliminary relief to non-parties. The traditional equitable powers of trial courts to grant preliminary relief has generally been limited to parties (plaintiffs or defendants) in a particular case, but federal judges have begun to issue “universal” preliminary injunctions more frequently over the last three presidential administrations, in cases attacking legislative and administrative actions of the Obama, Trump, and Biden administrations. Several justices have raised concerns about a single federal judge blocking all enforcement of a law in the context of deciding a motion for preliminary relief, which is frequently rushed and is not based on a full hearing following discovery and a fully-considered ultimate ruling on the merits of a case.

Although many of the justices might have problems with Judge Winmill’s preliminary conclusion that the plaintiffs were likely to prevail on their 14^th Amendment arguments in this case, they were not expressed in these opinions, which focused on arguments about whether it was appropriate to bar all enforcement of the Idaho statute before a full consideration of the merits of the case.

The state’s application pointed out that the evidence before Judge Winmill was focused on hormone treatments, not surgery, and generally in the lawsuits attacking statutory bans on gender-affirming care for minors, plaintiffs have conceded to the argument that surgical alteration should be reserved to adults. In this case, the immediate concern of the plaintiffs was being able to continue their hormone therapy without interruption, and consideration of surgery would be years off. Thus, one of Labrador’s strong arguments was that Judge Winmill had no basis for enjoining the ban on surgical alteration of genitalia.

Quick news reports about the Court’s action — and especially headlines — may have misled people into thinking that the Supreme Court had upheld the constitutionality of state bans on gender-affirming care for minors. The court did not do that. Of course, the effect of the court’s stay was to allow the law to go into effect, likely making it very difficult for transgender minors in Idaho to get gender-affirming medical care as this lawsuit proceeds, but in litigating on the merits of the case, the plaintiffs can attempt to get their case certified as a class action, in which case a finding of unconstitutionality could support a “universal injunction,” at least as to puberty blockers and cross-sex hormones.

Judge Winmill was appointed by President Bill Clinton. There are two active district judges in Idaho: the chief judge appointed by President Donald J. Trump and a judge appointed by President Joe Biden. Senior Judges are formally retired but can continue to handle cases while they are able and willing to do so, and many play an important role in the understaffed federal court system.