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The Last Time Supreme Court Considered Trans Rights, It Protected Them
The Supreme Court last decided a major case about transgender rights in June 2020, a win for the L.G.B.T.Q. community in a dispute over workplace discrimination against gay and transgender workers.
In that case, Bostock v. Clayton County, Georgia, a group of plaintiffs — among them, a funeral director, an advocate for at-risk children, and a skydiving instructor — argued that Title VII of the Civil Rights Act of 1964 guaranteed nationwide protection from workplace discrimination to gay and transgender people, even in states that offered no protection.
In a vote of 6 to 3, the justices agreed. But that was a different court — and a different political moment.
Although the court already had a conservative majority, the court's makeup shifted further rightward since then, after President Trump nominated Amy Coney Barrett to fill the seat left by the liberal icon Justice Ruth Bader Ginsburg.
The politics around transgender issues have also shifted rightward. Soon after Mr. Trump began his second term in January, he issued an executive order that federal agencies should limit surgeries, hormone therapy and other gender transition care for children and teenagers under 19. Lawyers for the Trump administration had urged the justices to uphold a Tennessee law banning some medical treatment for transgender youth.
In the court's decision on Wednesday to uphold that law, the majority said that it would not determine whether the reasoning from the Bostock decision reached beyond employment discrimination.
In the majority opinion, Chief Justice John G. Roberts Jr. explained a view that, unlike in the employment discrimination context, changing a minor's sex or gender would not alter how the state law applied to them.
The majority reasoned that if a transgender boy sought testosterone to treat gender dysphoria, the Tennessee law would prohibit a health care provider from giving it to him. If the patient was a girl, the law would still prohibit the hormone treatment because the person would lack a qualifying diagnosis, Chief Justice Roberts wrote.
In her dissent, Justice Sonia Sotomayor disagreed, arguing that the court's decision in Bostock would require a different result.
She wrote that, as Bostock outlined in the employment discrimination case, 'it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.'
