- The families of transgender minors say Tennessee's ban on gender-affirming care violates the equal protection clause.
- The Supreme Court is likely months away from deciding whether to take the case. Even if it does, it could push off a decision until 2025.
WASHINGTON – A yearslong legal battle over gender-affirming care for transgender youth has reached the Supreme Court, handing the justices an opportunity to resolve a dispute that has divided lower federal courts and emerged as a leading front in the fight for LGBTQ+ rights.
The parents of three transgender children are asking the Supreme Court in an appeal filed Wednesday to block a Tennessee law, signed by Republican Gov. Bill Lee in March, that bans all medical treatment for gender dysphoria in adolescents, including puberty blockers and hormone therapy.
Tennessee is one of 21 states to ban these treatments, part of a wave of conservative legislation and litigation aimed at transgender Americans. Some states have banned drag shows or prohibited public schools from teaching about gender identity and sexual orientation. In other states, some parents are fighting policies that permit transgender girls to play on girls sports teams in public schools.
While the Tennessee appeal would allow the Supreme Court to take up the issue of gender-affirming care for the first time, it is unlikely to be the last such case. The American Civil Liberties Union, which is representing the parents transgender minors in several states, said this week that it will soon appeal a similar case from Kentucky.
The Tennessee and Kentucky appeals stem from a Sept. 28 decision by the Cincinnati-based U.S. Court of Appeals for the 6th Circuit, which allowed those state bans to take effect. The 11th U.S. Circuit Court of Appeals in Atlanta allowed Alabama to enforce its ban on gender-affirming care for minors in an August ruling. But last year, the 8th Circuit in St. Louis blocked enforcement of a similar ban in Arkansas.
The different outcomes are "creating chaos across the country for adolescents, families, and doctors," the Tennessee families told the Supreme Court. The "split" among appeals courts makes it more likely that the Supreme Court will take up and decide the case.
"Tennessee and 20 other states have banned these treatments altogether, forcing families to upend their lives and move out of state to ensure that their children get the medical treatment they need," the families said in their appeal.
The families sued in April, arguing Tennessee's law violates the equal protection clause of the 14th Amendment. They rely in part on a landmark Supreme Court decision from 2020 that barred workplace discrimination against LGBTQ employees, which held that discrimination based on a person's gender identity is a form of sex discrimination.
But the courts that have allowed the state bans to take effect have said, in part, that the question may be better left in the hands of state legislatures.
"This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two," U.S. Circuit Judge Jeffrey Sutton, appointed by President George W. Bush, wrote for a 2-1 majority in the Tennessee decision. "Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments."
Given that, Sutton wrote, judges should be "humble and careful about announcing new substantive due process or equal protection rights."
It will take at least several months for the Supreme Court to decide whether to hear the Tennessee case. Even if the court agrees to take up the appeal, it is possible the justices would not do so until next term − a move that would likely push back a decision until mid-2025.
Despite the litigation swirling around transgender youth, the Supreme Court so far has largely been silent on the issue. In April, the high court sided with a 12-year-old transgender girl who was challenging a West Virginia ban on transgender athletes joining girls sports teams, temporarily blocking the state from enforcing the prohibition. The ruling came on the court's emergency docket and did not resolve the underlying questions in the case.
In a brief, two-page dissent, Justice Samuel Alito, among the court's most stalwart conservatives, said he would have granted West Virginia's request to revive the ban temporarily. Justice Clarence Thomas joined that dissent.
Alito said the case dealt with "an important issue" and predicted that "this court is likely to be required to address in the near future."