Supreme Court sets stage for blockbuster showdown over transgender rights

The Supreme Court’s decision to hear a challenge to Tennessee’s gender-affirming care ban for minors sets the stage for a potentially blockbuster case implicating transgender protections. 

It marks the first time the justices will weigh in on the issue, which could impact laws passed by 24 Republican-led states since 2021 that ban medications like puberty blockers and hormones for transgender children and teens. Legal challenges mounted by transgender youths, their families and medical providers have been met with mixed results. 

A federal judge earlier this month struck down a Florida law barring access to gender-affirming health care for minors and certain adults, and a similar Arkansas law was ruled unconstitutional last year. Federal court orders are blocking the enforcement of bans in Montana and Ohio. 

Monday’s announcement has left LGBTQ rights advocates grateful they will get their day in the nation’s highest court to object to Tennessee’s ban but also apprehensive about where the conservative-leaning court will land. 

“The future of countless transgender youth in this and future generations rests on this Court adhering to the facts, the Constitution, and its own modern precedent,” Chase Strangio, deputy director for transgender justice at the American Civil Liberty Union’s LGBTQ & HIV project, said in a statement. 

The Supreme Court’s decision to hear the case comes at the urging of the Biden administration, which appealed to the justices after intervening in the challenge brought by a group of anonymous transgender children and their parents. 

Tennessee Republicans passed the law, Senate Bill 1, in 2023 amid a wave of gender-affirming care bans enacted in states across the country. 

The law bars health care providers from administering puberty blockers, hormones or surgery to help a minor transition, though the restrictions don’t apply to adults. Violations can lead to professional discipline and carry a $25,000 civil penalty and private lawsuits. 

The Supreme Court is not expected to hear arguments until next fall, with a decision likely by June 2025. 

The Justice Department contends Tennessee’s statute, and others like it, violate the 14th Amendment’s Equal Protection Clause because they unconstitutionally discriminate against transgender individuals. Puberty blockers and doses of testosterone and estrogen are still available to minors who are not transgender under Tennessee’s and similar laws that restrict access to such care. 

“Those laws, and the conflicting court decisions about their validity, are creating profound uncertainty for transgender adolescents and their families around the Nation — and inflicting particularly acute harms in Tennessee and other States where the laws have been allowed to take effect,” U.S. Solicitor General Elizabeth Prelogar wrote in the administration’s petition. 

The Department of Justice and the White House declined to comment on the court’s decision to hear the case, saying they do not comment on pending litigation. 

Tennessee Attorney General Jonathan Skrmetti (R), whose office has argued the law was enacted to protect children, urged the justices to let a lower ruling upholding it stand. 

“We fought hard to defend Tennessee’s law protecting kids from irreversible gender treatments and secured a thoughtful and well-reasoned opinion from the Sixth Circuit. I look forward to finishing the fight in the United States Supreme Court,” Skrmetti said in a statement Monday. 

“This case will bring much-needed clarity to whether the Constitution contains special protections for gender identity,” he said. 

The Supreme Court in April narrowed an injunction blocking Idaho’s felony ban on gender-affirming care for minors. But that emergency ruling did not address the law’s constitutionality, and the court has otherwise abstained from intervening in most cases involving transgender rights. 

“This is a high-stakes moment for transgender youth and their families, and we’re glad that trans youth and their families will have their day in court to make the case that the bans are unconstitutional, interfere with private medical decisions, and severely harm families,” said Allison Scott, director of impact and innovation at the Campaign for Southern Equality, which supports LGBTQ people living in the South. “Everyone who needs gender-affirming care should be able to access it affordably, and close to home, and our team will never stop working to make that happen.” 

Gender-affirming health care for transgender adults and minors is considered medically necessary by every major medical organization, though not every trans person chooses to medically transition or has access to care. Groups including the Campaign for Southern Equality have poured hundreds of thousands into emergency funds meant to ease the financial burden of traveling out of state for treatment. In a national survey in February, more than half of trans people said they considered moving to another state because of laws that threaten access to gender-affirming health care. 

Tara Borelli, senior counsel at Lambda Legal, in a statement on Monday said the Supreme Court has historically rejected efforts to uphold discriminatory laws.

“Without similar action here, these punitive, categorical bans on the provision of gender-affirming care will continue to wreak havoc on the lives of transgender youth and their families,” she said. 

Two of the Supreme Court’s leading conservatives — Justices Clarence Thomas and Samuel Alito — have long appeared eager to wade into disputes implicating transgender rights. 

The duo publicly dissented from their colleagues when the court turned away a school district’s defense of its transgender bathroom policy and an appeal of a ruling that found a transgender woman’s rights were violated in jail.

“This case presents a question of great national importance that calls out for prompt review,” Alito wrote, joined by Thomas, in the latter case. 

Agreeing to hear the challenge to Tennessee’s ban means at least four of the nine justices voted to do so. Cases that earn the high court’s review tend to be taken up after they are distributed consecutively for two of the justices’ closed-door conferences, where they vote on which appeals to hear. 

The Biden administration’s challenge to Tennessee’s law moved at an unusually sluggish pace, with it granted after being listed for the last six conferences, according to the case’s docket. 

Justices have indicated they sometimes relist petitions when persuading a colleague to provide the critical fourth vote. Monday’s vote tally was not disclosed. 

Despite the court’s conservative majority, advocates hope that the justices’ ruling next term will be broad enough to overturn laws passed across the country that restrict access to gender-affirming care. 

“Certainly, we can hope that there is a ruling that summarily is restoring access to care,” said Cait Smith, director of LGBTQI+ policy at the Center for American Progress. “I think that there’s a path towards restoration.” 

Smith linked efforts to limit access to gender-affirming care to attempts to restrict or ban abortion. The Supreme Court’s decision to take up the Tennessee case falls on the second anniversary of its landmark ruling that rolled back federal abortion protections. 

“The fight for access to abortion and reproductive care and the fight for access to practice transgender medical care are intertwined,” Smith said. “This is all about access to best practice medical care.” 

“This is all about bodily autonomy for all of us,” they added. “Yes, this is incredibly crucial and important for young trans folks and for their families, but this is important for all of us and our access to health care.”