Supreme Court turns to backlog of transgender cases after Tennessee ban ruling
After the justices announce opinions from the bench, they'll meet behind closed doors to discuss how to proceed with more than a half-dozen petitions concerning states' transgender athlete bans, bathroom restrictions and prohibitions on gender-affirming surgeries in Medicaid plans.
Transgender rights advocates are holding out hope that the conservative majority's ruling last week upholding the Tennessee law is limited and they can still eke out victories as the cases press ahead.
'As frustrating an answer as it is, I don't actually think this tells us much at all of how those other contexts will proceed before this court,' said Karen Loewy, senior counsel and director of Lambda Legal's constitutional law practice. 'In as much as I think we can try to read tea leaves and find doctrinal through-lines, this is one of those instances where the court made clear that they were just doing something different and specific here.'
The Supreme Court issued its 6-3 ruling along ideological lines, marking one of their biggest cases implicating LGBTQ protections in recent years.
Petitions asking the court to hear other transgender rights disputes piled up for months as the justices punted action to consider the Tennessee case, U.S. v. Skrmetti.
With the decision now in, the freeze is thawing.
At their weekly closed-door conference Thursday, the justices will return to nine petitions implicating transgender rights, case dockets show.
Their usual practice is to send them back to lower courts to take another look in light of an intervening decision. But two Republican-controlled states are urging the court to forgo that exercise, warning it won't resolve their disputes, so the court should take them up now for their next term.
In West Virginia, Attorney General JB McCuskey (R) asked the Supreme Court on Tuesday to hear the state's defense of its transgender athlete ban. It is the third time the state has asked the justices to step in to allow it to enforce the 2021 law, which lower courts have blocked.
In court filings, McCuskey, the Alliance Defending Freedom and attorneys for several West Virginia Board of Education members said the Tennessee case left constitutional questions relevant to the case unanswered.
'United States v. Skrmetti disclaims any guidance on the Title IX question presented here, and the decision's equal-protection analysis does not address critical questions unique to athletics,' they wrote.
Public schools, they said, remain 'between a rock and a hard place,' citing President Trump's executive order to ban trans students from girls' and women's sports and the administration's statements that Title IX, the federal law against sex discrimination, prohibits trans athletes from competing.
'Should they follow an executive order that threatens all their funding — even funding unrelated to athletics? Or should they follow a court order that has not yet been applied to them?' McCuskey's office asked in court filings. 'The years of delay that would follow were the Court to grant, vacate, and remand here would not help.'
In Idaho, Gov. Brad Little (R) similarly asked the court to take up his state's trans athletes law, saying that lower court proceedings would otherwise 'delay the inevitable.'
'Whether designating sports teams based on biological sex violates the Equal Protection Clause is a critically important issue that has been roiling the lower courts, frustrating female student athletes, and confounding every level of government for years,' the state wrote in court filings this week.
Other cases are also waiting in the wings Thursday, though those parties haven't tried to sway the justices following the court's Skrmetti ruling.
Arizona's Senate president is defending the state's transgender athlete ban. West Virginia and Idaho are defending their gender-affirming surgery bans in Medicaid plans. North Carolina is trying to vindicate its similar ban for a government employee health plan. And Oklahoma wants the court to uphold its law banning people from changing their sex designation on official documents to match their gender identity.
Challengers to Tennessee's gender-affirming care ban for minors had hoped to convince the Supreme Court that the law, S.B. 1, classified based on sex and transgender status, which could require it to clear a more exacting constitutional standard known as heightened scrutiny.
Chief Justice John Roberts' majority opinion said it did neither and instead drew lines based on age and the treatments' medical purpose.
'Rather, S.B. 1 prohibits healthcare providers from administering puberty blockers and hormones to minors for certain medical uses, regardless of a minor's sex,' Roberts wrote.
But in some of the other cases set for the justices' consideration Thursday, Republican-led states directly admit their laws turn on sex, which could force the court to confront the issue.
And because the justices deemed that Tennessee's law does not discriminate against transgender Americans either, the court has yet to decide whether they qualify as a 'suspect class' that would independently trigger a higher level of constitutional scrutiny.
Only three conservative justices — Justices Clarence Thomas, Samuel Alito and Amy Coney Barrett — signed onto concurring opinions explicitly rejecting the idea.
'That important question has divided the Courts of Appeals, and if we do not confront it now, we will almost certainly be required to do so very soon,' Alito cautioned in a solo opinion.
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