Transgender Rights: The Crucial Role of Neil Gorsuch and John Roberts

The Supreme Court has recently announced its plan to decide whether or not states possess the constitutional authority to prohibit gender-affirming care for minors. This decision will dictate the fate of laws in over two dozen states that impose strict restrictions, or even criminalize, transgender minors’ access to healthcare. With potential nationwide consequences, the court’s decision could set a precedent for the constitutional scrutiny of laws targeting the rights of transgender children and adults. The outcome largely hangs in the balance between two key figures: Neil Gorsuch and John Roberts.

U.S. v. Skrmetti: A Crucial Case for Transgender Rights

The case at the forefront of this imminent decision is U.S. v. Skrmetti, which challenges a Tennessee law barring healthcare professionals from administering certain types of medication to minors. Specifically, the law prevents the provision of puberty-suppressing drugs and cross-sex hormone therapy, both of which are standard treatments for children experiencing gender dysphoria and are endorsed by leading medical associations. This law represents a broader move by Republicans to enforce a narrow definition of gender, partially achieved by erasing the existence of transgender people. With several states racing to enact similarly harsh laws, the Supreme Court’s decision holds even greater weight.

The Battle in the 6th Circuit Court of Appeals

Last year, a group of transgender minors and their parents made an effort to block Tennessee’s healthcare ban, asserting it hold the violation of their 14th Amendment rights. Yet, a three-judge panel from the 6th Circuit Court of Appeals rejected their claims, stating that the due process clause does not protect the parents since a “deeply rooted” right to secure gender-affirming care for their children, and the equal protection clause is not offended since the law does not constitute sex discrimination.

Journey of the Case to The Supreme Court

Both the U.S. Department of Justice and the ACLU fought this case in the 6th Circuit and asked the Supreme Court to review the lower court’s decision. On Monday, the Supreme Court agreed but only accepted the Department of Justice’s petition, reflecting their focus on whether Tennessee’s ban constitutes sex discrimination under the equal protection clause. The overall question at the heart of this is whether anti-transgender discrimination equates to a form of sex discrimination. Therefore, the repercussions of U.S. v. Skrmetti extend beyond the future of bans on gender-affirming care to the tensions of transgender adults and children every day.

The Hope in Gorsuch and Roberts

There are faint glimpses of optimism for transgender rights advocates. In the 2020 case of Bostock v. Clayton County, the Supreme Court ruled that discriminating against a person for being transgender is a form of sex discrimination. Interestingly, Justice Neil Gorsuch authored the Bostock decision, and Chief Justice John Roberts joined him along with the court’s liberals. Given these perspectives, it is conceivable that these justices’ previous endorsement of transgender rights might influence the impending ruling. Ultimately, Gorsuch and Roberts play significant roles in the future trajectory of transgender rights in the United States.

Potential Consequences: More Than Just for Healthcare

It’s important to note that this case could significantly impact more than just healthcare access for transgender minors. Many states are continually devising new ways to infringe on the rights of transgender adults and children, with laws limiting their abilities to participate in sports, use public bathrooms, live safely, evade discrimination in school and the workplace, perform onstage, hold public office, and vote. Should the Supreme Court in Skrmetti rule that anti-trans laws warrant heightened scrutiny under the equal protection clause, these laws would be constitutionally questionable. Conversely, a broad ruling in the opposite direction would likely abolish many constitutional protections for transgender people. The coming months will reveal whether Gorsuch and Roberts will champion transgender rights or remain, as many fear, simply the last, best hope.