Are bans on gender-affirming care for minors constitutional? Supreme Court to decide

WASHINGTON – The Supreme Court will wade into the controversial topic of puberty blockers and hormone therapy for transgender people under the age of 18, taking up a case that could be a flashpoint in the fight for LGBTQ rights.

The court agreed Monday to hear the Biden administration's challenge to a Tennessee's ban on gender-affirming medical treatment for minors, an increasingly potent political issue that has divided lower courts and emerged as a leading front in the battle over LGBTQ issues.

The case will be argued in the next term, which begins in October.

It's the first time the justices will weigh in on the matter, which is being fought by transgender teens and their families.

The Justice Department told the Supreme Court its input was “urgently needed” to resolve whether bans are discriminatory.

'Profound uncertainty'

“These laws, and the conflicting court decisions about their validity, are creating profound uncertainty for transgender adolescents and their families around the nation,” Solicitor General Elizabeth Prelogar said in a filing.

At issue is whether the bans discriminate on the basis of sex.

A divided 3-judge panel of the 6th Circuit ruled Tennessee's bans and a similar one in Kentucky were likely to survive a challenge and allowed them to be enforced during the litigation. Two of the three judges said the evolving issue of gender dysphoria 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 last year. "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."

In April, the Supreme Court allowed Idaho to largely enforce a similar state ban while that law is being challenged but didn't address the underlying constitutional questions.

The ban from Tennessee is the first to fully reach the Supreme Court.

Combined with other state actions to restrict the bathrooms transgender students can use and what sports teams they can join, the laws could be a major issue in this year’s elections.

More: Bathrooms to ballfields: Transgender athlete ban one of many LGBTQ fights brewing in courts

Trump says he will push to ban gender-affirming care for minors

Former President Donald Trump, the presumptive GOP nominee, has said he will press Congress to pass a law banning gender-affirming care for minors and will cut federal funding for schools pushing “transgender insanity” if he returns to the White House.

President Joe Biden has boasted about steps he’s taken to strengthen the rights of “transgender and all LGBTQI+ Americans.”

The Biden administration in April finalized rules clarifying that schools can't discriminate based on sexual orientation or gender identity though put on hold a proposed change to protect transgender athletes. Nine GOP-led states along with conservative advocacy groups have sued to block the protections for transgender students.

Florida and a Catholic medical group are challenging a Biden administration rule banning gender identity discrimination in health care, arguing it will force doctors to provide gender transition care.

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More states seek to limit access to gender-affirming care for minors

The issue has gained prominence with startling speed, despite the tiny – though increasing – fraction of Americans who are transgender.

Since 2022, the number of states taking steps to limit access to gender-affirming care for minors has grown from four to 25.

That’s despite the fact that most major medical groups support youth access to gender-affirming care.

More: Republicans lean into anti-trans messaging ahead of 2024. But will it mobilize voters?

"The widely accepted view of the professional medical community is that gender-affirming care is the appropriate treatment for gender dysphoria and that, for some adolescents, gender-affirming medical care is necessary," the American Academy of Pediatrics and other major medical and mental health groups told the court in a filing supporting challenges to the bans.

But England's National Health Service has begun limiting puberty-blocking drugs for those under 16, saying there's not enough evidence about long-term effects.

States with bans say the treatments are too drastic and untested to be allowed for those under 18 who may not fully grasp the lifelong risks and consequences.

“Tennessee, like many other states, acted to ensure that minors do not receive these treatments until they can fully understand the lifelong consequences or until the science is developed to the point that Tennessee might take a different view of their efficacy,” the state’s lawyers told the Supreme Court.

'Punitive bans' that could wreak havoc on the lives of transgender youth

The challenges 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.

"This Court has historically rejected efforts to uphold discriminatory laws, and without similar action here, these punitive, categorical bans on the provision of gender-affirming care will continue to wreak havoc on the lives of transgender youth and their families," Tara Borelli, senior counsel at Lambda Legal, said in a statement. "We are grateful that transgender youth and their families will have their day in the highest court, and we will not stop fighting to ensure access to this life-saving, medically necessary care."

Tennessee Attorney General Jonathan Skrmetti said the appeals court issued a "thoughtful and well-reasoned opinion" when it sided against the challengers.

'Special protections'?

"I look forward to finishing the fight in the United States Supreme Court," Skrmetti said in a statement. "This case will bring much-needed clarity to whether the Constitution contains special protections for gender identity."

Despite the litigation swirling around transgender minors, the Supreme Court has largely been silent on the issue. Last year, 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 January, the Supreme Court declined to decide whether schools can bar transgender students from using a bathroom that reflects their gender identity, leaving in place a lower court ruling that allowed a transgender middle school boy in Indiana to use the boys' bathroom.

This article originally appeared on USA TODAY: Supreme Court to weigh bans on gender-affirming care for minors