Transgender rights advocates gird for more fights after US Supreme Court loss

WASHINGTON (Reuters) -The U.S. Supreme Court delivered a blow to transgender rights by upholding a Tennessee ban on gender-affirming care for adolescents, but legal experts said the ruling was narrower than it could have been and left open the door for challenges to the rising number of government restrictions aimed at transgender people. 

The court decided that Tennessee’s Republican-backed law, which prohibits medical treatments such as puberty blockers and hormones for people under age 18 experiencing gender dysphoria, did not violate the U.S. Constitution’s 14th Amendment promise of equal protection, as challengers to the measure had argued.

The court’s six conservative justices powered the ruling authored by Chief Justice John Roberts, with its three liberal members dissenting. Transgender rights advocates called the decision a major setback while the law’s backers welcomed the Supreme Court’s endorsement and urged other states to adopt similar restrictions.

Gender dysphoria is the clinical diagnosis for significant distress that can result from an incongruence between a person’s gender identity and sex assigned at birth.

The ruling rejected the assertion made by the law’s challengers that the measure was a form of discrimination – based on sex or transgender status – that should trigger tougher judicial review and make it harder to defend in court under 14th Amendment protections. 

Instead, the ruling concluded that the ban classified people based on age and medical diagnosis, and the court applied what is called a rational-basis review, a deferential analysis that merely requires a rational connection between a law and a legitimate state interest. 

Application of rational basis review by courts generally would make it easier to defend a broader array of measures curbing transgender rights, from bathroom use to sports participation. But Wednesday’s ruling did not foreclose the possibility of courts in the future applying tougher scrutiny and finding unlawful discrimination in certain measures targeting transgender people. 

‘PLENTY OF TOOLS’

Karen Loewy, a lawyer with the LGBT rights group Lambda Legal, called the ruling heartbreaking for transgender youths and their families but saw some hope. 

“I think the court here went out of its way to confine what it was doing here to a restriction on care for minors,” Loewy said, adding that it “left us plenty of tools to fight other bans on healthcare and other discriminatory actions that target transgender people.”

The court concluded that Tennessee did not create a sex-based category or specifically draw a line between transgender people and others, said Georgetown University law professor Paul Smith, who has argued many cases at the Supreme Court including a landmark gay rights victory in 2003. 

“Other statutes may not be viewed the same,” Smith said.

Roberts wrote that the “fierce scientific and policy debates” concerning the medical treatments at issue justified the court’s deferential review of Tennessee’s ban. Roberts added that questions about these treatments should be left “to the people, their elected representatives and the democratic process.”

Liberal Justice Sonia Sotomayor in a written dissent disagreed with that view. 

Judicial scrutiny, Sotomayor said, “has long played an essential role in guarding against legislative efforts to impose upon individuals the state’s views about how people of a particular sex (or race) should live or look or act.”

The ban’s proponents welcomed the ruling and the court’s reasoning.

“Voters, through their elected representatives, should have the power to decide what they believe on serious issues like this one,” said Tennessee Governor Bill Lee, a Republican who signed the ban into law.

Lee added that the measure protects young people from “irreversible, life-altering medical decisions.”

“This ruling sends a strong message to the country that states have a clear right and path forward to protect children from irreversible body mutilation,” added Republican state legislator Jack Johnson, one of the lead sponsors of the Tennessee measure.

The issue of transgender rights is a flashpoint in the U.S. culture wars. Tennessee’s law is one of 25 such policies enacted by conservative state lawmakers around the United States, and various states have adopted other restrictions on transgender people. Donald Trump in particular has taken a hard line against transgender rights since returning to the presidency in January.

TRANSGENDER STATUS

Tennessee’s law, passed in 2023, aims to encourage minors to “appreciate their sex” by prohibiting healthcare workers from prescribing puberty blockers and hormones to help them live as “a purported identity inconsistent with the minor’s sex.”

In litigation brought by plaintiffs including transgender individuals and former President Joe Biden’s administration, a federal judge blocked the law as likely violating the 14th Amendment. The Cincinnati-based 6th U.S. Circuit Court of Appeals subsequently reversed the judge’s decision.

Lawyers for the challengers noted that the Supreme Court did not go as far as the 6th Circuit to decline to recognize transgender people as a class of people whose status requires courts to apply tougher judicial review to laws targeting them. The Supreme Court left that question unresolved. 

Future legal challenges may hinge on whether a law draws a line between transgender people and others, Smith said.

“If a state refused to hire transgender people or excluded them from juries, for example, that might well lead the court to apply heightened scrutiny under a sex discrimination theory or under the theory that such a line itself warrants heightened scrutiny,” Smith said. 

“Targeting transgender people out of animus, as other more-recent restrictions have done, still violates equal protection,” said Pratik Shah, an attorney who also helped represent the plaintiffs. 

However, three conservative justices who wrote or joined opinions concurring in Wednesday’s outcome – Amy Coney Barrett, Clarence Thomas and Samuel Alito – agreed with the 6th Circuit that laws based on transgender status do not merit tougher legal scrutiny like laws that divide people based on race or sex. 

Such a ruling “would require courts to oversee all manner of policy choices normally committed to legislative discretion,” Barrett wrote. 

Though some transgender advocates had expressed concern that a ruling favoring Tennessee could bolster restrictions on transgender adults as well, Jennifer Levi of the LGBT rights legal group GLAD Law said Wednesday’s decision was explicitly limited to care for minors and that challenges to restrictions on adults remain viable under existing precedent. 

The Supreme Court also did not rule on a separate argument made by the plaintiffs that laws like Tennessee’s violate the right of parents to make decisions concerning the medical care of their children. Competent adults could similarly claim a right to make medical decisions about their own bodies, Smith said. 

In a previous major case involving transgender rights, the Supreme Court ruled in 2020 that a landmark federal law forbidding workplace discrimination protects gay and transgender employees.

Chase Strangio, an American Civil Liberties Union lawyer representing the plaintiffs in the Tennessee case, made history in the case in December as the first openly transgender attorney to argue before the Supreme Court. 

Strangio emphasized the narrowness of Wednesday’s ruling, but acknowledged its practical impact.

“Of course the most immediate effect is on our clients, other young transgender people in Tennessee and across the country who need medical care that the government has stepped in to ban,” Strangio said. “And for them we are devastated.” 

(Reporting by Andrew Chung; Additional reporting by Jonathan Allen; Editing by Will Dunham)

By Andrew Chung