Supreme Court may reckon with state trans procedure bans for minors sooner than later
Kaelan Deese
Video Embed
The Supreme Court is one step closer to being forced to consider the legality of transgender care bans for minors after a series of conflicting lower court rulings across the United States.
Twenty-three states have passed bans on hormone therapy, surgery, or other forms of treatments for minors, leading to court battles throughout the country in which some courts have blocked such laws, while others allow them to continue in effect.
GOVERNMENT SHUTDOWN: WHAT WILL BE OPEN AND WHAT WILL BE CLOSED
A federal judge in Montana became the latest to rule against such bans for minors on Wednesday, holding that a law set to go into effect on Oct. 1 was unconstitutional. But as more and more circuit courts have reversed these decisions, the number of so-called circuit splits increases the odds the Supreme Court will intervene sooner rather than later.
The streak of splits in appeals courts came to a head when a divided panel on the 6th Circuit Court of Appeals gave an emergency motion in July in L.W. v. Skrmetti, which removed a lower court’s hold on Tennessee’s ban for transgender youth procedures. The same appeals court is slated to appeal its preliminary injunction by Sept. 30 and declare a final ruling on the matter, according to the written opinion of 6th Circuit Chief Judge Jeffrey Sutton.
Gillian Branstetter, a communications strategist with the American Civil Liberties Union, posted to X on Sept. 25 that the upcoming 6th Circuit decision is “likely setting up the first Supreme Court case concerning the right of trans people to access the care we need to be free.”
If the 6th Circuit does not alter its initial ruling this week, transgender advocates may be forced to reckon with new hurdles to such procedures for minors in Kentucky, Michigan, Ohio, and Tennessee, which are under the jurisdiction of that appeals court.
Other federal appeals courts have undone lower court rulings that struck down transgender youth procedure bans. The 11th Circuit reinstated Alabama’s ban on puberty-blocking drugs and cross-sex hormones for minors on Aug. 21.
More recently, the 4th Circuit heard oral arguments on Sept. 21 in a dispute involving the coverage of transgender procedures by North Carolina’s state employee health plan and the coverage of such procedures by West Virginia Medicaid. During those proceedings, at least two judges said it’s likely that the case would eventually be raised to the Supreme Court.
Although the Supreme Court has not been petitioned to weigh a dispute over transgender procedure bans, the number of conflicting rulings, coupled with the latest out of Montana, has prompted jurists and advocates to believe that type of dispute is forthcoming.
Before the 6th Circuit decision in July, several federal appeals courts had agreed with an 8th Circuit ruling from 2022 known as Brandt v. Rutledge, when a bipartisan panel blocked Arkansas’s ban on transgender procedures for youth. The panel found the ban was discriminatory because it “prohibits medical care that only transgender people choose to undergo,” citing the Supreme Court’s 2020 Bostock v. Clayton County ruling that held workplace discrimination on the basis of gender identity counts as sex discrimination under Title VII of the Civil Rights Act.
But the 6th Circuit’s July ruling cited the more recent Supreme Court landmark decision that overturned nearly 50 years of abortion precedent under Roe v. Wade, noting the language from the June 2022 Dobbs v. Jackson Women’s Health Organization ruling that allowed states to impose restrictive laws on abortion access.
Quoting Dobbs, the 6th Circuit held “the regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.’”
“No such pretext has been shown here,” said Sutton, who wrote the preliminary L.W. decision for the 6th Circuit.
“If a law restricting a medical procedure that applies only to women does not trigger heightened scrutiny, as in Dobbs, a law equally appliable to all minors, no matter their sex at birth, does not require such scrutiny either,” Sutton added.
Professor Marc Spindelman of Ohio State’s Moritz College of Law wrote in an academic report that the 6th Circuit’s conclusions about the application of Dobbs were merely “initial” ones.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
“L.W. thus, by its own account, reflects a provisional legal judgment in the case, one the court expressly acknowledges may be in error, requiring a course correction as the case proceeds,” according to Spindelman’s Sept. 14 essay in the University of Pennsylvania Law Review.
A final ruling from the 6th Circuit is expected on or before Sept. 30.