When the Supreme Court hears an appeal Wednesday from transgender kids contesting a Tennessee ban on their medical care, basic principles against sex discrimination will be at stake.
The justices’ views on whether landmark rulings dating back half a century apply to transgender rights would have an impact on more than just young people’s access to puberty blockers and hormone therapy. The central question in the case is how much judicial review regulations governing transgender people require.
The legal norms used by black-robed jurists may appear dry and archaic. However, in a case that tests the scope of the Constitution’s equal protection guarantee, those standards define the dispute and determine which party bears the heavier burden of proof.
Should transgender regulations be viewed as a kind of sex discrimination that requires “heightened scrutiny” and an essential governmental interest to justify them, as the Biden administration and transgender proponents contend? That’s how some federal judges saw it when they overturned anti-transgender policies, such as those that prevented minors from receiving gender-affirming care.
Should a restriction on transgender care only be subject to “rational basis” assessment, in which a state must demonstrate that it is rationally related to a valid governmental interest? This strategy typically applies to conventional business standards and requires judges to defer to state legislators.
The outcome of Wednesday’s decision will have a significant impact on future rights for transgender Americans.
According to KFF, Tennessee’s restriction adopted last year is one of at least 25 state prohibitions on gender-affirming care. It arrives at the Supreme Court amid new conflicts over competitive sports and bathroom restrictions in schools and the corridors of the United States House of Representatives. Former President Donald Trump mocked transgender interests during his successful effort to reclaim the White House, spending tens of millions of dollars on anti-transgender advertisements in the final weeks of his campaign.
An estimated 1.5 million Americans are transgender, accounting for less than 1% of the country’s 300 million population.
The strong atmosphere surrounding this minority may highlight the vulnerability of trans individuals in America and the greater need for constitutional protection. Alternatively, the Supreme Court may be persuaded to delegate an increasingly contentious field of law to elected legislators and the democratic process.
Adding to the anticipation in this carefully watched case, the lower court decision now before the courts was tailored to the current right-wing bench. It was written by a conservative US appellate judge who is highly regarded by the justices, and it was worded in language that would fuel their desire to strictly interpret rights.
The 6th US Circuit Court of Appeals imposed the lowest degree of review, ruling that limitations on transgender care do not constitute sex discrimination. As a result, it deviated from precedent on sex-based classifications and a tendency among judges who had determined that limitations on gender-affirming care necessarily discriminate based on sex because they are linked to a minor’s sex at birth and cover only treatment that transgender people choose to get.
Levels of scrutiny and why they matter.
The Supreme Court has laid out three tiers of scrutiny in such debates over equal protection of the law: “strict scrutiny,” the toughest review, for any government classification based on race, national origin, and religion, and demanding a compelling governmental justification; “heightened,” or intermediate, scrutiny, for classifications based on gender, requiring that the law serve an important governmental objective; and, finally, “rational basis,” requiring only a ration
A major aspect in the calculation is whether the people at the center of the case are particularly vulnerable to prejudice and unable to assert their rights through traditional political channels.
Throughout decades of rulings, the Supreme Court has defined Black Americans and other racial minorities as a “suspect class,” requiring the most constitutional protection, and victims of gender discrimination as a “quasi-suspect class.”
US Solicitor General Elizabeth Prelogar, who will argue the Biden administration’s appeal of the 6th Circuit decision, says the mere existence of the bans enacted over the last three years demonstrates that transgender people are a “quasi-suspect class” entitled to enhanced constitutional protection.
“(T)ransgender individuals have not been able to meaningfully vindicate their rights through the political process in much of the country – as evidenced by the recent wave of laws targeting transgender individuals in Tennessee and other States,” she said in the court’s brief.
In the ruling now before the judges, a panel of the 6th Circuit found by a 2-1 vote that the Tennessee ban on transgender care does not constitute a sex-based classification, therefore there is no cause “to apply skeptical, rigorous, or any other form of heightened review to these laws.”
Judge Jeffrey Sutton, a highly respected conservative who has served on the bench since 2003 and is currently the chief judge of the 6th Circuit, stated that the Tennessee statute cannot be seen through the typical lens for government policies that establish distinct treatment for men and women. He stated that such bans should be considered primarily in conjunction with a limitation on minors’ access to medical care.
“The laws regulate sex transition treatments for all minors, regardless of sex,” Sutton concluded, determining that the state could justify its restriction by citing its commitment to protect children’s health. Sutton, who was appointed by President George W. Bush, stressed the possibility of lasting medical repercussions, such as infertility.
Sutton was joined by Judge Amul Thapar, an early Trump appointment to the 6th Circuit who had previously been considered for the Supreme Court during Trump’s first term. If a vacancy arises, he may be in contention again.
According to the Biden administration, the 6th Circuit’s reasoning would subject anti-trans laws “to no greater judicial scrutiny than a law banning compounded milk, regulating optometrists, or expelling hotdog pushcarts from New Orleans’ French Quarter.”
The 6th Circuit panel majority also dismissed the Supreme Court’s main case on transgender rights, Bostock v. Clayton County. In a 2020 decision, the justices concluded that gay and transgender workers were protected under Title VII of the 1964 Civil Rights Act, which prohibits discrimination based on sex.
“In Bostock,” Sutton said, distinguishing the cases, “the employers fired adult employees because their behavior did not conform to stereotypes of how adult men or women dress or behave.” In this scenario, the regulations do not refuse anyone general healthcare treatment based on prejudices; rather, they deny the same medical procedures to all 17-year-olds suffering from gender dysphoria.”
Taking into account the high court’s concern in originalism, Sutton stated at the outset that the challengers could not rely on the “original fixed meaning” of the Constitution’s equal protection clause.
“That prompts the question whether the people of this country ever agreed to remove debates of this sort – over the use of innovative, and potentially irreversible, medical treatments for children – from the conventional place for dealing with new norms, new drugs, and new public health concerns: the democratic process,” he wrote. “Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by con
