CNN
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The conservative Supreme Court dealt a significant blow to transgender Americans on Wednesday, issuing a sweeping decision that may have implications beyond the medical care that was at center of one of the court’s highest-profile disputes this year.
The 6-3 ruling, which landed at a moment when transgender Americans are facing political and cultural setbacks after years of gains, let stand a Tennessee law that banned puberty blockers and hormone therapy for minors seeking to transition to match their gender identity.
Transgender advocates framed the ruling as a “devastating loss,” but also hoped its impact may be limited to cases involving health care. The decision came amid a much broader debate over other laws aimed at transgender people, including the question of whether people can play on sports teams and use bathrooms consistent with their gender identity.
Here’s what to know about Wednesday’s decision:
The court had largely dodged the issue of transgender rights for years but handed down a number of important victories to the LGBTQ+ community more broadly. Most notably, of course, was the historic decision a decade ago to legalize same-sex marriage.
More on point, the high court in 2020 ruled that a federal law that bars workplace discrimination based on sex also necessarily prohibits that discrimination based on gender identity – a significant win for transgender Americans.
But after making those legal gains, transgender Americans have faced a flood of new restrictive laws passed by conservative states. More than 20 states have enacted laws banning similar gender-affirming care for trans minors. Other states have passed laws barring students from playing on sports teams consistent with their gender identity, or changing their sex assigned at birth on their birth certificates.
“We’re in a moment in this country where transgender people in this country are under attack in lawless ways,” said Chase Strangio, an attorney with the American Civil Liberties Union who represented transgender teens at the high court. “We are remaining vigilant and ready to fight back.”
President Donald Trump touted a promise to end “transgender lunacy” during his reelection campaign, and he signed an executive order early in his term barring nonbinary markers on US passports. Though the court’s opinion dealt with none of the shifting landscape on the issue – and it carefully kept its language neutral on the broader questions at stake for transgender Americans – it nevertheless has added to that shift.
“This case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field,” Chief Justice John Roberts wrote for the majority. “The voices in these debates raise sincere concerns; the implications for all are profound.”
Nearly three years ago, the court’s conservative supermajority overturned the constitutional right to an abortion established in Roe v. Wade, giving state lawmakers the power to determine how much access their residents can have to the procedure.
The court on Wednesday similarly zeroed in on states’ rights to make policy determinations on a politically divisive issue, especially one where there are differing views on the subject from major medical organizations.
“Our role is not ‘to judge the wisdom, fairness, or logic’ of the law before us, but only to ensure that it does not violate the equal protection guarantee of the Fourteenth Amendment,” Roberts wrote. “Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process.”
The chief justice noted that England’s National Health Service decided to pull back on providing gender-affirming care to trans youth. He cited a report published by NHS last year that said there is “’no good evidence on the long-term outcomes of interventions to manage gender-related distress.’”
“We cite this report and NHS England’s response not for guidance they might provide on the ultimate question of United States law, but to demonstrate the open questions regarding basic factual issues before medical authorities and other regulatory bodies,” Roberts wrote, going on to say that “such uncertainty” means debates over the way a prohibition like Tennessee’s may impact society are better left for state lawmakers.
Major US medical associations – including the American Medical Association, the American Psychiatric Association, the American Academy of Pediatrics and the American Academy of Child & Adolescent Psychiatry – agree that gender-affirming care is clinically appropriate for children and adults.
Arkansas passed the first state ban on gender-affirming care for trans youth in 2021. Today, more than 110,000 transgender teenagers living in states where restrictions on puberty blockers and hormone therapy exist, according to the Williams Institute at UCLA School of Law.
In a scathing dissent penned by Justice Sonia Sotomayor, the court’s senior liberal member said the majority had pulled back from “meaningful judicial review exactly where it matters most” and instead “abandons transgender children and their families to political whims.”
Underscoring her displeasure with the court’s ruling, the appointee of former President Barack Obama spent 15 minutes on Wednesday reading excerpts of her dissent from the bench. She spoke emphatically and with urgency about the potential costs to trans youths and of the majority abandoning the crucial role of judicial review.
She repeated a line from her opinion that she was dissenting in “sadness.”
But in the end, Sotomayor and the court’s other two liberal members were unable to stymie the monumental shift her colleagues delivered in the legal landscape of transgender rights.
Throughout her 31-page dissent, Sotomayor leaned into the practical impact of the medication at issue in the case, at one point invoking the stories of the transgender youth who challenged Tennessee’s law.
“Transgender adolescents’ access to hormones and puberty blockers (known as gender-affirming care) is not a matter of mere cosmetic preference. To the contrary, access to care can be a question of life or death,” the justice wrote, adding that access to the health care help reduce the rate of suicidal ideation among transgender minors.
She went on to say that the majority’s ruling “does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight.”
“It also authorizes, without second thought, untold harm to transgender children and the parents and families who love them,” she wrote.
Sports, bathrooms and other laws
Though the Supreme Court’s majority opinion steered clear of discussion about other laws involving transgender issues – such as those banning minors from playing on sports team consistent with their gender identity – the decision will almost certainly raise questions about the legal challenges to those laws.
The court hewed closely to the notion that Tennessee’s law did not discriminate on the basis of sex. Because of that, the court applied the lowest form of judicial scrutiny – known as “rational basis” – and upheld the law. The court also importantly held that the law did not discrimination on the basis of transgender status.
Karen Loewy, senior counsel at Lambda Legal, framed the decision as specific to Tennessee’s law and said it “left us plenty of tools” to fight other policies.
Loewy said she doesn’t think the decision Wednesday offers many clues at all about how the court will look at the sports and bathroom cases.
The only member of the majority to raise the sports and bathroom laws was Justice Amy Coney Barrett, a member of the court’s conservative wing and sometimes swing vote, who signaled that she would oppose granting transgender status the same anti-discriminatory protections that race and sex have under the 14th Amendment.
That could make her vote hard to get for LGBTQ+ advocates in appeals over those other polices that will inevitably reach the Supreme Court.
“Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy – ranging from access to restrooms to eligibility for boys’ and girls’ sports teams,” Barrett wrote. “If laws that classify based on transgender status necessarily trigger heightened scrutiny, then the courts will inevitably be in the business of ‘closely scrutiniz(ing) legislative choices’ in all these domains.”
Justice Clarence Thomas was the only other justice to sign on to Barrett’s opinion.
In dissent, Sotomayor suggested that reasoning was an abdication of the court’s role.
“Looking carefully at a legislature’s proffered reasons for acting, as our equal protection precedents demand, is neither needless ‘second guess(ing),’ nor judicial encroachment,” Sotomayor wrote. “After all,” she wrote, closely scrutinizing those choices “is exactly how courts distinguish ‘legitimate regulatory polic(ies)’ from discriminatory ones.”
