Supreme Court Latest: Justices to hear arguments on gender-affirming care for minors

The Supreme Court is set to hear arguments on Wednesday in just its second major transgender rights case, a challenge to a Tennessee law that bans gender-affirming care for minors.

The nation’s top court will be weighing whether Tennessee’s law violates the equal protection clause of the 14th Amendment, requiring that people in similar circumstances be treated the same under the law. Both sides in the case claim they are acting to protect minors from harm.

At least 26 states have adopted laws restricting or banning such care for minors, and most of those states face lawsuits.

Here’s the latest:

Level of scrutiny: A legal issue that could play a decisive role in the case

Most laws are reviewed and upheld under the lowest level of scrutiny, known as rational basis review. Indeed, the federal appeals court in Cincinnati that allowed the Tennessee law to be enforced held that lawmakers acted rationally in adopting the law to address the risks they perceived in gender-affirming care for minors.

But when discrimination is present, judges take a closer look.

Sex discrimination gets heightened scrutiny, which requires states to identify an important objective and show that the law helps accomplish it. Racial discrimination, not at issue here, is reviewed under strict scrutiny — the highest level — and laws rarely survive such a demanding examination.

The votes of Roberts, Gorsuch and Coney Barrett probably will decide this case

Roberts and Gorsuch joined the court’s liberal justices in the 2020 workplace discrimination case won by LGBTQ+ plaintiffs. Three conservative justices, Samuel Alito, Brett Kavanaugh and Clarence Thomas, dissented.

If the parties challenging the Tennessee law hope to win, they need at least two conservative justices on their side, along with the three liberal members of the court. Barrett has no track record on transgender issues, although she votes with the other conservatives in most of the high-profile cases.

When is a decision expected on this case?

The Supreme Court almost always issues its decisions by early summer, usually before the end of June. The transgender health case could be one of the last cases decided, which is typical of highly contentious issues. One additional potential cause for delay is the Trump administration could weigh in soon after Trump takes office. It’s not clear how that might affect the case.

The first transgender attorney ever to argue before the Supreme Court

Chase Strangio will be the first openly transgender attorney to argue before the nation’s highest court, representing families who say Tennessee’s ban on health care for transgender minors leaves their children terrified about the future.

Strangio will bring months of intense legal preparation to the case as well as hard-won lessons from his own experience.

“I am able to do my job because I have had this health care that transformed and, frankly, saved my life,” he said. “I am a testament to the fact that we live among everyone.”

Strangio grew up outside of Boston and came out as trans when he was in law school. Now 42, he’s an American Civil Liberties Union attorney whose legal career has included representing former Army intelligence analyst Chelsea Manning, challenging a ban on transgender people serving in the military and helping win an LGBTQ+ worker-discrimination case at the Supreme Court. He’s also the father of a 12-year-old, the son of a father who supports Trump, and has a close relationship with his Army-veteran brother.

▶ Read more about Strangio and his history as a transgender advocate

When was the last time the Supreme Court took up a case on transgender rights?

The Supreme Court’s only other major case on transgender rights was in 2020 when the court ruled that workplace discrimination against LGBTQ+ people was sex discrimination in violation of the federal civil rights law commonly known as Title VII.

The court concluded, in separate cases involving a gay man and a transgender woman, that they were discriminated against because of their sex. Justice Neil Gorsuch, an appointee of Donald Trump’s in his first term in the White House, wrote the 6-3 opinion for the court. Chief Justice John Roberts was the only other conservative member of the court in the majority.

What is being argued before the court?

The nation’s top court will be weighing whether Tennessee’s law violates the equal protection clause of the 14th Amendment, requiring that people in similar circumstances be treated the same under the law. Both sides in the case claim they are acting to protect minors from harm.

Transgender attorney Chase Strangio will represent families who say Tennessee’s ban leaves them terrified for the future and that access to this kind of care is life-saving.

Tennessee, meanwhile, will argue before the Supreme Court that treatments like puberty blockers and hormones carry risks for young people and its law protects them from making treatment decisions prematurely.

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