Robinette
WASHINGTON - The U.S. Supreme Court’s recent decision upholding a Tennessee law that bans “gender-affirming” medical procedures on children may have no effect on transgender rights of adults. Then again, it may.
It depends on how judges interpret the language in the majority opinion in U.S. v. Skrmetti. The decision includes three concurrences in which the court’s conservative justices quibbled over questions including whether the law actually discriminates against transgender youth.
Only four justices out of nine signed off on the entire majority opinion, which held the Tennessee law didn’t discriminate on the basis of sex because it banned certain medical procedures regardless of the sex of the children seeking them.
Justice Samuel Alito concurred in the judgment but said the law may well classify the plaintiffs based on their transgender status. That doesn’t matter, he concluded, since the law still doesn’t discriminate “on the basis of sex.”
Those disagreements are likely to surface again if the court takes up the question of President Trump’s ban on transgender soldiers in the military.
"The question is, in any other context other than medical care for minors, why would this apply?,” said Justin Robinette, a Pennsylvania lawyer who represents transgender clients in workplace and insurance disputes. “And a judge would have to ask that question."
Tennessee’s SB1 outlawed dispensing puberty blockers or hormones to minors for the purpose of relieving the patient’s anxiety about their biological sex or to allow the minor to identify with the opposite sex. The court majority held the law triggered rational basis review, the lowest standard of constitutional inquiry, not heightened review reserved for laws that discriminate against people based upon characteristics like sex and race.
The American Civil Liberties Union, supported by the Biden Administration, sued to block the law under the Equal Protection Clause of the 14th Amendment. Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson dissented, arguing the law clearly discriminated against minors based on their sex and transgender status.
The Supreme Court previously outlawed workplace discrimination against transgender adults in Bostock v. Clayton County, ruling it violated Chapter VII by imposing restrictions on employees based on their sex. The rules prohibiting a biological male from dressing as a woman wouldn’t apply to a woman wearing the same clothing, the court ruled in Bostock.
“By depriving adolescents of hormones and puberty blockers only when such treatment is `inconsistent with’ a minor’s sex, the law necessarily deprives minors identified as male at birth of the same treatment it tolerates for an adolescent identified as female at birth,” wrote Justice Sotomayor in dissent in the Tennessee case.
“This is clearly a form of sex discrimination, or discriminating against one group of people who seek one set of procedures, to help effect a gender transition,” said Robinette. “I'm hopeful judges will be able to see this and that they will permit these cases to go to juries who I think will agree.”
The big unresolved questions are whether anything in Skrmetti applies to adults, or whether transgender adults will receive heightened scrutiny in contexts outside the workplace. Robinette, for example, handles lawsuits in which plaintiffs accuse insurance companies of refusing care based on their transgender status.
"There’s no clear remedy for that currently if it’s not sex discrimination under the Affordable Care Act,” Robinette said. "The ruling is challenging. The other side and their lawyers are going to use this to their advantage."
The decision may also bolster President Trump’s campaign to ban transgender soldiers from the miliary. The Supreme Court suspended a judge’s injunction against the ban in April pending review in the Ninth Circuit Court of Appeals.
The majority in Skrmetti sidestepped the question of whether transgenderism was a protected status like race or sex deserving heightened review. They may not be able to avoid it if Trump’s military ban returns to the Supreme Court.
Justices Alito, Clarence Thomas and Amy Comey Barrett have already spoken on that question, saying transgender status is not constitutionally protected.
Chief Justice John Roberts, writing for the majority, said: “This Court has not previously held that transgender individuals are a suspect or quasi-suspect class.”
“And this case, in any event, does not raise that question because SB1 does not classify on the basis of transgender status.”
