Over the past few years, states across the country have implemented laws limiting access to gender-affirming care for minors. In Virginia, the “Youth Health Protection Act” makes it illegal for any individual to provide gender transition procedures for minors and affirms parents’ right to withhold consent to any gender affirming care for their children.
The law also forms the basis for Youngkin’s Model Transgender Policy, where school staff are required to inform parents if their child has “exhibited symptoms of gender dysphoria or gender nonconformity.”
Trans youth in Virginia and other states with similar bans, then, are forced to either go without treatment or travel outside of state to get health care. We Northern Virginians actually got pretty lucky in this respect — we’re right by Maryland, where it’s been codified that gender-affirming care is a legally protected form of health care.
Others — in states like Tennessee, for example — have not been so lucky, leading many to challenge these bans in court.
The subject of this week’s blog post is one such challenge to these bans, one that’s made it all the way to the Supreme Court of the United States: US v. Skrmetti.
Case Summary
Tennessee’s Senate Bill 1, passed in 2023, prohibits gender-affirming care for minors on the basis that the treatments are too risky and experimental — even referencing Dr. John Money’s operation on David Reimer as an example (which is deeply horrific, but is far from the current process of gender-affirming care as it involved sex reassignment of infants with reproductive abnormalities, not trans kids).
They claim “many” regret transitioning and gender-affirming care is being promoted by doctors solely for profit. No sources for any claims are provided.
Notably, however, the ban does not prohibit the procedures associated with gender-affirming care, only performing these procedures for the purpose of transition. Meaning that children with a birth defect, injury or disease (other than gender dysphoria or similar condition) can receive the same “dangerous, experimental procedures” that trans kids are categorically denied.
This fact forms the basis of the Williams’ case.
Tennessee residents Samantha and Brian Williams are parents to a 15 year old transgender daughter, L.W., who has been deeply affected by the recent ban. Their lawyer, Chase Strangio, argues that this ban is discriminatory as it denies a medical procedure not on the sole basis of its danger but due to who is asking for it.
The claim on unconstitutionality is based on the 14th Amendment, specifically the due process clause and equal protection clause, which states that rights to life, liberty and property must not be denied without due process and legal protections must be applied equally to all citizens.
Supreme Court Verbal Arguments
This case was initially heard in early December of last year and a ruling is expected to be issued in June.
I fear it will be quite a depressing pride month this year, then.
Keep in mind that, even as Supreme Court Justices are meant to be impartial, a majority of the Justices lean conservative, six of them having been appointed by Republican presidents. And protecting transgender rights is becoming a less popular position — even among Democrats.
This already puts the odds against the trans community before the case was even heard. And, unfortunately, the verbal arguments didn’t change much.
There are two main perspectives the Justices had on this issue, which parallel the rulings of the lower courts.
Aligning with the decision of the Tennessee District Court, some Justices believed that the law could be unconstitutional because administering the law requires knowledge of sex and, therefore, requires discrimination based on sex.
The logic is, if a child requests testosterone for hormone replacement therapy, the child would be denied if they were female and approved if they were male — definitionally, that is clear sex-based discrimination.
The counterargument — supported by the Circuit Court and the rest of the Justices — is that the ban is based on use of treatment, not who is asking for it.
Regardless of sex, if a child requests hormones for the purpose of gender transition, they are denied. The ban affects both sexes equally and, therefore, is not discriminatory.
Additionally, this side also argues that legislation on medical care should be left to the states — similar to the logic behind overturning Roe v. Wade. This perspective seems to have the most sway, as it’s the fairly neutral option, and looks to be where the court is leaning.
Since then, Trump’s executive orders on transgender people have only served to bolster anti-trans sentiment in the government. A ruling in favor of trans rights would be beyond controversial and incredibly unlikely to be endorsed or enforced by Congress.
Implications
It does deeply pain me to say that, unfortunately, the challenges to these bans don’t have a strong constitutional basis. Parents have a right to refuse consent to treatments for their children, but they do not necessarily have the right to demand banned treatments. Legislatures have the authority to regulate medical care.
The claim that the bans are an infringement of parental rights doesn’t get us far. That leaves the claim of discrimination, based in the equal protections clause.
In order to guarantee these protections, transgender people need to be established as a constitutionally protected class, a “suspect class” — which is incredibly unlikely to happen. To create new protected classes, four criteria are generally considered:
- Historically subject to discrimination – transgender people meet this requirement handily.
- Distinguishing characteristic does not inhibit ability to contribute to society – transgender people also meet this requirement.
- Politically powerless – because of the successes transgender people have found in other states and generally under Biden’s presidency, the Circuit Court argues trans people cannot be considered powerless. Under the new administration, however, I’d say I’m feeling pretty powerless.
- Immutability – the class of people must be based on a highly visible, unchanging trait that can be ascertained at birth. Being transgender fulfills neither.
New suspect classes have not been created in four decades. Gay people are not even considered a constitutionally protected class.
The only way to strike down these laws is to prove that the harm of these treatments for these uses is overstated — and, therefore, the bans are based in transphobia rather than genuine fear for children’s safety.
Here is the issue: you can’t give weight to testimony from the very group you hope to regulate — it’s inherently unreliable. Doctors who treat transgender minors will obviously say that the treatment they provide is beneficial.
And no matter how much evidence is provided by the medical community, it is not the courts’ role to decide whether gender-affirming care is more beneficial than dangerous or vice versa, it is the role of the courts to decide constitutionality. Based on the, admittedly, true fact that gender-affirming care carries a potential risk to the health of minors, the law is constitutional, because transgender people are not and will not become a constitutionally protected class.
So…a little depressing, isn’t it? There will not be a quick, all-encompassing end to these bans on trans health care for minors. But a ruling in favor of Tennessee is not the end of the world — far from it.
A law being constitutional does not make it right. The courts are specifically looking at constitutionality because the role of regulating laws that are not representative of the people falls to — well, the people.
As appealing as a lawsuit is, the most effective method of creating change may just be voting, lobbying and protesting on a local, state level. It might just mean helping to change the tide of public opinion, one person at a time.
It’s easy to say change will take time, but it’s much more difficult to actually live in the time before that change is made. When the big picture of federal laws and opinions gets you down, focus on the local. Focus on the support systems you may have around you, on the communities you can always find if you know where to look.
You’re not alone. There are others like us, others who support us, even as the political climate around trans people continues to worsen. Keep on fighting.
