Supreme Court takes up challenge to gender-affirming care ban

The Supreme Court announced Monday it will wade into a major dispute implicating transgender rights next term by agreeing to review the constitutionality of Tennessee’s law banning gender-affirming care for minors. 

The high court previously avoided many opportunities to get involved in cases involving transgender protections, but after being urged by the Biden administration to take up the latest dispute, the justices agreed to do so in a brief order.

The battle over whether Tennessee’s law unconstitutionally discriminates on the basis of sex is slated to take place during the court’s next annual term. Oral arguments are likely to be scheduled close to the end of this calendar year.

The justices’ eventual decision is set to impact the laws passed in the Tennessee and other Republican-led legislatures. Nearly half of the country has banned gender-affirming health care for transgender minors, affecting an estimated 100,000 trans adolescents and teenagers. 

Some laws also limit care for transgender adults, and bills introduced this year in a handful of conservative states aim to outlaw gender-affirming medical care completely.

Legal challenges mounted by transgender youths and their families have been met with mixed results, and federal appeals courts have split on whether laws that ban gender-affirming care are constitutional.

The Biden administration said the Supreme Court’s intervention was “urgently needed,” arguing that those conflicting court rulings have created “profound uncertainty” for transgender people.

“Absent this Court’s review, families in Tennessee and other States where laws like SB1 have taken effect will face the loss of essential medical care,” the Justice Department wrote in its petition to the high court.

“Those with the resources to do so may abandon their homes, jobs, schools, and communities to move to a State where the needed treatment remains available,” the petition continued. “Others will not have even that option. And families in much of the rest of the Nation will be left in limbo, waiting to see whether their State’s ban will be upheld or enjoined.” 

A group of anonymous transgender minors and parents in both states challenged the law, and the Justice Department later intervened in the dispute. A doctor is also a plaintiff.

A federal district judge agreed to issue an injunction blocking Tennessee’s law. On appeal, the 6th U.S. Circuit Court of Appeals consolidated it with a similar case arising from Kentucky cases and reversed, handing a win to the two Republican-led states.

The Supreme Court’s order now grants the Justice Department’s request to review Tennessee’s law, but only on the question of whether it violates the 14th Amendment’s Equal Protection Clause. The other plaintiffs also wanted the justices to consider whether it violated due process protections.

Tennessee urged the Supreme Court to stay out of the dispute, which would keep the law intact, arguing the justices should allow the issue to further percolate in the appeals courts.