In transgender care case, Supreme Court to consider how far equal protection goes
By Joan Biskupic, CNN Chief Supreme Court Analyst
(CNN) — When the Supreme Court hears an appeal Wednesday from transgender youths challenging a Tennessee ban on their medical care, fundamental principles forbidding sex discrimination will be on the line.
The justices’ view of whether landmark decisions tracing back a half-century apply to transgender rights will affect more than the access of young people to puberty blockers and hormone treatments. At the case’s core is the crucial question of how much judicial scrutiny laws regarding transgender individuals demand.
The legal standards invoked by black-robed jurists may seem dry and arcane. But in a case testing the reach of the Constitution’s equal protection guarantee, those standards set the terms of the debate and determine which side has the greater burden to prove its case.
Should regulations on transgender issues be regarded as a type of sex discrimination warranting “heightened scrutiny” and an important governmental interest to justify them, as the Biden administration and transgender advocates argue? That’s how some federal judges have seen it as they’ve struck down anti-trans policies, including those preventing minors from obtaining gender-affirming care.
Or should a ban on transgender care be subject only to “rational basis” review, which requires a state to show that it is rationally related to a legitimate governmental interest? This method usually applies to commonplace business rules and requires judges to defer to state legislators.
The answer to this threshold issue in Wednesday’s case will go a long way to determine the protections afforded transgender Americans in the future.
The Tennessee ban enacted last year is one of at least 25 state prohibitions on gender-affirming care, according to KFF. It arrives at the Supreme Court as new fights have erupted over competitive sports and bathroom policies, at schools and in the halls of the US House of Representatives. During his successful bid to regain the White House, former President Donald Trump mocked transgender interests and spent tens of millions of dollars in the final weeks of his campaign on ads attacking transgender people.
An estimated 1.5 million people in America are transgender, less than 1% of a US population that tops 300 million.
The intense atmospherics over this minority may expose the vulnerability of trans people in America and a greater need for constitutional protection. Or, alternatively, the Supreme Court may be persuaded to leave an increasingly fraught area of the law to elected legislators and the democratic process.
Adding to the suspense of this closely watched case, the lower court ruling now before the justices was tailored to the current right-wing bench. It was written by a conservative US appellate judge who is among the most respected by the justices and crafted in terms that would fuel their interest in narrowly construing rights.
The 6th US Circuit Court of Appeals imposed the lowest level of review, saying bans on transgender care do not amount to sex discrimination. As such, it broke from precedent on sex-based classifications and a pattern among judges who’d found that bans on gender-affirming care necessarily discriminate based on sex because they are tied to a minor’s sex at birth and cover only treatment that transgender people choose to undergo.
The levels of scrutiny and why they matter
The Supreme Court has laid out three tiers of scrutiny in such debates over equal protection of the law: “strict scrutiny,” the toughest review, for any government classification based on race, national origin and religion, and demanding a compelling governmental justification; “heightened,” or intermediate, scrutiny, for classifications based on sex, requiring that the law serve an important governmental objective; and, finally, “rational basis,” requiring only a rational relationship between the regulation and a legitimate government interest.
A key factor in the calculation is whether the people at the heart of the case are particularly vulnerable to discrimination and unable to vindicate their rights through the usual political process.
Throughout decades of cases, the high court has described Black Americans and other racial minorities as a “suspect class,” needing the greatest constitutional protection, and it has deemed victims of sex discrimination a “quasi-suspect class.”
US Solicitor General Elizabeth Prelogar, who will argue the Biden administration’s appeal of the 6th Circuit decision, says the sheer existence of the bans enacted over the past three years helps demonstrate that transgender people represent a “quasi-suspect class” entitled to heightened constitutional protection.
“(T)ransgender individuals have not been able to meaningfully vindicate their rights through the political process in much of the country – as evidenced by the recent wave of laws targeting transgender individuals in Tennessee and other States,” she wrote in a filing to the court.
In the decision now before the justices, a panel of the 6th Circuit ruled by a 2-1 vote that the Tennessee ban on transgender care does not amount to a sex-based classification, so no reason exists “to apply skeptical, rigorous, or any other form of heightened review to these laws.”
Judge Jeffrey Sutton, a highly regarded conservative who has been on the bench since 2003 and is now chief judge of the 6th Circuit, said the Tennessee law cannot be viewed through the usual lens for government policies that set out different treatment for men and for women. He said such bans should be considered mainly in the context of a restriction on medical treatment for minors.
“The laws regulate sex transition treatments for all minors, regardless of sex,” Sutton wrote, concluding that the state could justify its ban based on its responsibility to protect the health of children. Sutton, an appointee of President George W. Bush, emphasized the potential for irreversible medical consequences, such as sterility.
Sutton was joined by Judge Amul Thapar, an early Trump appointee to the 6th Circuit who’d also been considered for the Supreme Court during Trump’s first term. He may be in contention yet again should a vacancy arise.
The Biden administration said the 6th Circuit’s rationale would subject anti-trans laws “to no greater judicial scrutiny than a law banning compounded milk, regulating optometrists, or expelling hotdog pushcarts from New Orleans’ French Quarter.”
The 6th Circuit panel majority also brushed aside the Supreme Court’s leading precedent on transgender rights, Bostock v. Clayton County. In that 2020 case, the justices ruled that gay and transgender workers were covered by a prohibition on discrimination “because of … sex” in Title VII of the 1964 Civil Rights Act.
“In Bostock,” Sutton wrote, differentiating the cases, “the employers fired adult employees because their behavior did not match stereotypes of how adult men or women dress or behave. In this case, the laws do not deny anyone general healthcare treatment based on any such stereotypes; they merely deny the same medical treatments to all children facing gender dysphoria if they are 17.”
Bringing into play the high court’s interest in originalism, Sutton wrote at the outset that the challengers could not rely on the “original fixed meaning” of the Constitution’s equal protection guarantee.
“That prompts the question whether the people of this country ever agreed to remove debates of this sort – over the use of innovative, and potentially irreversible, medical treatments for children – from the conventional place for dealing with new norms, new drugs, and new public health concerns: the democratic process,” he wrote, “Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable Constitution to occupy the field.”
‘No parent would choose to make their child different’
Known as SB1, the Tennessee law prohibits physicians and other health care providers from prescribing any puberty blocker or hormone that would enable a minor “to identify with, or live as, a purported identity inconsistent with the minor’s sex.”
It also bans any treatment to address “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” (The law permits puberty blockers and hormones for other purposes, such as to treat congenital conditions and early puberty.)
Physicians have prescribed such drugs to treat gender dysphoria, that is, the distress resulting from the incongruence between a person’s sex and their gender identity. Gender-affirming care, according to research cited in briefs supporting the plaintiffs, can reduce adolescents’ depression, anxiety, self-harm and risk of suicide.
The text of the disputed law says it reflects Tennessee’s “compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty” and a desire to prohibit medical care that would “encourage minors to become disdainful of their sex.”
Three transgender youths, their parents and a physician sued under the Constitution’s equal protection and due process clauses. The Biden administration joined their side under a law that allows the government to intervene in equal protection lawsuits brought by private parties.
When the justices agreed to hear the Biden administration appeal of the 6th Circuit’s decision, in the case now called United States v. Skrmetti, it said it would take up only the equal protection issue. The court declined to review the question of parents’ rights to make medical decisions for their children based on due process grounds.
Like the challengers who started the Tennessee case, Solicitor General Prelogar emphasizes the difficulties faced by trans children and their families.
“For many parents, questions about how best to raise transgender adolescents – including whether and how to take steps to enable them to live in accordance with their gender identity – are extraordinarily challenging,” Prelogar wrote in her brief.
Referring to one of the youths, a 13-year-old transgender boy known by a pseudonym, Prelogar wrote, “John Doe’s mother put the point in plain terms: ‘This is what I think many people don’t understand: no parent would choose to make their child different, or choose a harder path in life for their child.’”
Prelogar will share time in the well of the courtroom with the ACLU’s Chase Strangio, who represents the trans youths and their parents.
In his written filing, Strangio addressed the consequences of the 6th Circuit’s legal reasoning. “It will effectively immunize all forms of government discrimination against transgender people from meaningful constitutional scrutiny. And it will force the families at the center of this case (and countless others like them) to lose the very medical care that has allowed their children to grow and thrive.”
Strangio, co-director of the ACLU’s LGBTQ and HIV Project, will be the first openly transgender person to argue before the justices.
When Tennessee Solicitor General Matthew Rice then steps to the lectern, he will defend the level of scrutiny used by the 6th Circuit and urge the justices to uphold the prohibition on hormones and other treatment. State officials differentiate Tennessee’s ban from other sex-based policies that have come before the justices, such as different drinking ages for men and women, in a 1976 case from Oklahoma, or men-only admissions, in the 1996 Virginia Military Institute dispute.
In the milestone 1976 case, Craig v. Boren, the court struck down a state law that allowed women to buy low-alcohol beer at age 18 but forbade men from doing so until age 21. The justices declared that such a sex-based classification violates the guarantee of equal protection unless it is substantially related to an important governmental objective.
In the state’s brief, Rice described such laws the justices began reviewing in the 1970s as “classic sex classifications.”
“Tennessee’s law draws no similar sex-based line,” he wrote. “SB1 does not ‘prefer one sex over the other,’ ‘include one sex and exclude the other,’ ‘bestow benefits or burdens based on sex,’ or ‘apply one rule for males and another for females.’”
Tennessee officials emphasize that the ban on transgender treatment refers to sex but does not differentiate based on sex. The law prevents minors desiring a gender transition – whether they be male or female – from using puberty blockers and hormones.
Relevance of SCOTUS’ recent rulings
The current Supreme Court has been eliminating or constricting individual rights, most dramatically the reversal of abortion rights in the 2022 case of Dobbs v. Jackson Women’s Health Organization, which Tennessee officials repeatedly cite in their briefs.
The court’s 2020 decision in Bostock v. Clayton County, however, broke ground in the opposite direction. By a 6-3 vote, the court ruled that Title VII’s protection against sex bias in the workplace can apply to gay and transgender employees.
The decision, written by Justice Neil Gorsuch, was tied to the specific text of Title VII prohibiting discrimination “on the basis of sex.” The 6th Circuit declined to apply Bostock to the current dispute over the 14th Amendment’s guarantee of “equal protection of the laws.”
If the Supreme Court adopts that 6th Circuit approach, it likely will not affect reliance on Bostock for Title VII workplace cases. But it could prevent judges from invoking it in transgender issues beyond employment, as some judges have done since 2020.
Judge Helene White, who dissented in the 6th Circuit case, in fact, noted that rulings under Title VII and the Constitution’s equal protection clause often cite one another. And as she declined to endorse the Tennessee ban, she referred to language from the Bostock opinion that said if the government treats differently “a person identified as male at birth for traits or actions that it tolerates in (a person) identified as female at birth,” or vice versa, the person’s “sex plays an unmistakable …. role.”
A few weeks after the Supreme Court issued Bostock, the 4th Circuit relied partly on that decision as it sided with a Virginia transgender boy, Gavin Grimm, who had been denied use of his school’s boys bathroom. Looking to standards regarding constitutional equal protection, the 4th Circuit concluded that “heightened scrutiny” applied to Grimm’s claim because the bathroom rule rested on a sex-based classification and because transgender individuals constituted “at least a quasi-suspect class.”
The 4th Circuit panel added: “After the Supreme Court’s recent decision in Bostock v. Clayton County, we have little difficulty holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him ‘on the basis of sex.’”
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