The US supreme court on Wednesday ruled to uphold a Tennessee ban on gender-affirming care for minors – a decision, legal analysts say, that is sure to have a sweeping impact not only on transgender and non-binary individuals across the US, but on anybody who wants to argue that they have been discriminated against on the basis of their sex.
Forty per cent of trans people between the ages of 13 and 17 live in the 27 states that have so far enacted bans or policies that restrict youths’ access to gender-affirming care. Although advocates have launched more than a dozen lawsuits over the bans, most remain in effect. Wednesday’s decision in the case, United States v Skrmetti, may pave the way for the rest to take effect.
The decision left Meredithe McNamara, an assistant professor of pediatrics at Yale School of Medicine who specializes in adolescent medicine, “devastated and scared”.
“This is a step in the wrong direction for trans people of all ages,” she said. “If people were truly interested in the wellbeing of transgender youth, there would be a more sensible discussion being had. ‘How do we advance the quality of evidence? How do we advance services and support for these people?’ That, of course, was never the intention.”
A study by the Trevor Project, a mental health non-profit that aims to help LGBTQ+ kids, linked anti-trans laws to a 72% increase of suicide attempts among trans and non-binary youth.
Filed last year by three families of trans children and a provider of gender-affirming care, United States v Skirmetti turned on the question of whether Tennessee’s ban constituted sex-based discrimination and thus flew in the face of the equal protection clause of the 14th amendment. Under Tennessee’s law, someone assigned female at birth could not be prescribed testosterone, but someone assigned male at birth could receive that hormone therapy.
Courts are supposed to closely scrutinize laws that might discriminate on the basis of sex. But in the majority opinion, which was joined at least in part by the court’s six conservative justices, Chief Justice John Roberts argued that the law does not discriminate on the basis of sex – and so it does not deserve that higher level of scrutiny or, ultimately, violate the equal protection clause.
“The law does not prohibit conduct for one sex that it permits for the other,” Roberts wrote. “No minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence; minors of any sex may be administered puberty blockers or hormones for other purposes.”
But Justice Sonia Sotomayor, who authored the dissent on behalf of the court’s three liberal justices, accused the majority of ignoring “logic and precedent” to pretend that Tennessee’s law does not discriminate on the basis of sex. In order for somebody to receive gender-affirming care and affirm their gender identity, the sex they were assigned at birth is clearly at issue.
“That law conditions the availability of medications on a patient’s sex. Male (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls,” Sotomayor said.
“Thus, the majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims.”
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Experts said that Roberts’s reasoning opened the door for further attacks on cases that involve arguments around sex-based discrimination as it narrows the circumstances in which the equal protection clause may be cited and used to protect people against it. Cases involving issues like abortion, pregnancy discrimination and women’s rights frequently involve claims of sex-based discrimination.
“By the court declaring that Tennessee’s law has nothing to do with sex discrimination – it has nothing to do with sex at all, somehow – basically they’re weakening the standard in what kinds of laws sex-based scrutiny is triggered,” said Jules Gill-Peterson, a Johns Hopkins University associate professor who focuses on transgender history and the history of sexuality.
“This is a pattern we see recurring over and over again, where attacks on medical transition and attacks on trans people tend to weaken sex-based rights or women’s rights in general.”
Chase Strangio, co-director of the ACLU’s LGBTQ & HIV Project, called Wednesday’s ruling “a devastating loss for transgender people, our families, and everyone who cares about the constitution” in a statement.
“Though this is a painful setback, it does not mean that transgender people and our allies are left with no options to defend our freedom, our healthcare or our lives,” continued Strangio, the first out trans lawyer to argue before the US supreme court.
