Teens and Doctors Appeal Ban on Gender-Affirming Care to the Supreme Court

On Wednesday, a group of transgender young people asked the Supreme Court to block a Tennessee law that bans minors from getting gender-affirming care. Lawyers in Kentucky announced they’d be filing a similar petition soon. If the court agrees to hear either case, it would be the first time they’ve weighed in on transgender healthcare bans—which 21 states have passed since 2021.

Advocates are taking this step because, in September, the 6th Circuit Court of Appeals allowed the Tennessee and Kentucky bans to take effect. (Both state laws ban minors from receiving puberty blockers or hormone therapy, while Tennessee also bans gender-affirming surgeries.) This ruling came despite the fact that another appeals court had blocked a similar law in Arkansas.

The American Civil Liberties Union and Lambda Legal are representing the Tennessee minors and their families, as well as medical providers, and they’re arguing that the laws discriminate against transgender people in violation of the 14th Amendment’s equal protection clause. Basically, since the laws only ban the use of puberty blockers and cross-sex hormones for kids who are transgender, not for all kids, that’s discrimination on the basis of sex and transgender status.

Legal journalist Chris Geidner noted they also argue the state violates that same amendment’s due process clause because the law limits parents’ right to make “decisions concerning the medical care of their children.” (After the September court decision, the legal director for the ACLU of Kentucky told the Washington Post: “Parents have a fundamental right to direct the upbringing of their children.”)

The ACLU petition also argues that the 6th Circuit ruling conflicts with the high court’s 2020 decision in Bostock v. Clayton County, which, they write, established that “discrimination against transgender individuals is necessarily sex-based because it punishes people for being identified as ‘one sex … at birth’ and a different sex ‘today.’”

The Supreme Court doesn’t have to hear arguments about the bans in Tennessee or Kentucky—in fact, it declines to hear the vast majority of petitions it receives. But when there’s disagreement among the circuit courts of appeal—which sit one level below the Supreme Court—the justices usually get involved to resolve the “circuit split.” Plus, the ACLU is arguing that lower courts are defying pretty recent precedent.

We all know the political leanings of the 6-3 conservative supermajority on this court and, given that, it can feel scary to observers when people ask the court to protect anyone’s rights. But not challenging these laws is in itself a harm. And advocates have won several victories at the court in recent years, including the Bostock decision. Earlier this year, the court twice declined to take up cases where lower courts ruled in favor of trans rights. In April, it said West Virginia couldn’t enforce its ban on trans girls playing on sports teams. Then in June, it left in place a ruling that found people with gender dysphoria are entitled to the protections of the Americans With Disabilities Act.

Chase Strangio, the deputy director for transgender justice at the ACLU, wrote in a post that the group does not take lightly the decision to appeal to the Supreme Court, especially after it overturned Roe v. Wade. “We take this step with full knowledge that, no matter what happens, we will have to fight for each other and use every tool in our toolbox to defend all our rights to bodily autonomy. With such critical, life-or-death health care on the line, we must continue to fight back against Tennessee’s law and exhaust every option available to us,” Strangio said. “No matter what happens, we will continue to fight thoughtfully and creatively to ensure that everyone can access the health care they need.”

Major medical organizations including the American Medical Association, the American Psychological Association, and the Endocrine Society oppose restrictions on gender-affirming care, but conservative lawmakers don’t care. And even when outright bans on healthcare do get blocked, conservatives will just try different tactics, like trying to regulate care out of existence. It’s the anti-abortion playbook and we’re already seeing it in states like Nebraska, which recently unilaterally imposed 40 hours of therapy and a seven-day wait before minors can get care.

So now we wait to see if the Supreme Court will take up these cases—it only takes four justices to do so.