The Supreme Court announced the hearing on Monday United States v. Skrmetti, a case asking whether laws restricting various types of gender-affirming care for transgender patients are permissible under the Constitution and federal law. Many red states already impose restrictions on who can receive such care.
Plaintiffs in the case Scarmety The case has very strong legal arguments under the existing precedents of the court. Courts have long held that laws that discriminate on the basis of “sex,” meaning the sex assigned at birth, are invalid unless the government “Very persuasive justification“For the law. and bipartisan majorities of justices Bostock v. Clayton County (2020) that “it is impossible to discriminate against a person for being gay or transgender without discriminating against that person on the basis of sex.”
So state laws that deny healthcare to trans people, while allowing cisgender patients to receive similar care, should not be upheld under existing law.
That said, the legality of the ban has divided lower courts, with some Republican judges relying on the court’s decision. Roe v. Wade Supporting this proposition is that state legislatures have broad authority to ban medical procedures they deem harmful, even if their judgments conflict with consensus within the medical profession.
In April, moreover, a majority of justices voted to temporarily reinstate Idaho’s ban on gender-affirming care for minors — despite a court order Labrador vs. Po It also prohibits Idaho from enforcing its ban against the two trans children who actually sued in the case.
Although a confusing web of concurrence and dissent labrador As the case focuses primarily on a procedural issue that touches on the question of whether the trans health ban is legal, Justice Brett Kavanaugh wrote an opinion, joined by Justice Amy Connie Barrett, that suggests the state could succeed in its opposition’s defense. – Trans Act. Although Kavanaugh and Barrett are conservative Republicans, they are ideologically in the middle of this lopsided court.
All of this is not to say that, while it is possible that the Supreme Court will strike down — or, at the very least, limit — state laws prohibiting transgender health care, the result is likely to be a significant defeat for trans people. .
The legal arguments against trans health bans are briefly explained
There are several strong arguments against allowing the government to ban gender-affirming care. One is that all laws that discriminate against transgender people are questionable under the Constitution. There is a left-leaning United States Court of Appeals for the Fourth Circuit Take this position.
The Supreme Court has long held that groups have experienced a “history of purposeful unequal treatment” that “Often has nothing to do with ability to perform or contribute to society,” should enjoy enhanced protection against discrimination. These enhanced protections are known as “Advanced Verification”.
Yet, while there are strong arguments that trans people have experienced such discrimination, it has also been a long time since courts have recognized that a new category of person is entitled to heightened scrutiny protection. Justices before former President Donald Trump remodel the court dancing around Applying heightened scrutiny to laws that discriminate on the basis of sexual orientation, but In the end they didn’t.
So, if far more liberal courts have shied away from providing greater protections to gay and bisexual Americans, it’s hard to imagine current courts extending such protections to transgender people. Note that this question Not before the court Scarmety caseAlthough this may arise in the future.
A second argument that could justify overturning bans on trans health care is that these bans violate the constitutional “right to privacy,” a right that allows Americans to make specific medical choices and decisions about how to receive them without government interference. They want to raise their children.
But it’s hard to imagine the current court’s Republican majority accepting that argument. The most famous right-to-privacy case is, of course, Roe v. Wade, a case that this court recently overturned and that most Republican judges believed was obscenity. The justices also said they would not consider this right-to-privacy argument Scarmety.
Then there’s a third argument for allowing trans people to make their own health care choices, and it’s actually won some support from current Republican members of the court.
Bostock A 6-3 decision authored by Republican Justice Neil Gorsuch and authored by Republican Chief Justice John Roberts held that a federal law that prohibits “gender” discrimination in employment also prohibits discrimination based on sexual orientation or gender identity.
The court reasoned that an employer must discriminate on the basis of gender in order to discriminate against an LGBTQ employee. If Tom is allowed to date Lily, for example, but Anisha is not, this is just plain sex discrimination because Anisha is being treated differently than Tom because she is a woman.
Similarly, Bostock Argued that if an employer penalizes an “employee identified as female at birth” for identifying as male or displaying stereotypically male behavior, but does not apply similar sanctions to “persons identified as male at birth,” But that is just general discrimination on the basis of gender.
Federal law Also prohibits gender discrimination in health care. so BostockIts logic should also prevent many attempts to ban gender-affirming care.
As the Fourth Circuit explained in its recent decision Kadel v. Falwell, held that state-provided health insurance could not refuse to cover certain treatments for trans people, holding that these refusals were invalid because they only applied to people of one gender. State Medicaid programs, for example, “breast-reduction surgery to treat excess breast tissue in cisgender men, but not to treat gender dysphoria in transgender men; and breast-reconstruction surgery post-mastectomy for cisgender women, but not for gender dysphoria in transgender women.”
Again, this is just plain gender discrimination. A state could potentially refuse to cover breast-reduction surgery altogether. But it cannot cover this treatment when a man (or assigned male gender at birth), but refuses to cover when a woman (or someone assigned female gender at birth) seeks the same treatment.
Having said that, there may be limitations Bostock Framework Suppose that a treatment exists that is only used to treat transgender women, for example. Because this treatment would only be used on people assigned male at birth, a ban on it would not involve traditional gender discrimination because it would not allow people assigned female at birth to receive care that others could not receive.
But it is not clear if there is any such treatment. And, even if it does, Bostock The framework should give trans people broader access to many types of gender-affirming care.
The strongest legal argument for transgender health bans
While the legal arguments against trans health bans are exceptionally strong, some lower court judges have raised another argument that will likely appeal to the concurring justices. Dobbs v. Jackson Women’s Health Organization (2022), the Court ruled that abortion policy should be set by elected lawmakers and not dictated by the Constitution.
The best statement of this alternative theory is Judge J. By Harvey Wilkinson Disagreement between cauldron casewhich argues that a pro-trans reading of the Constitution or an anti-discrimination law would “limit a state’s prerogative under its fundamental police power to protect the health and welfare of its citizens.”
Wilkinson claims that there are problems in areas such as treatment cauldron, “puberty-blocking drugs, cross-sex hormones, and gender reassignment surgery,” are all “subject to significant scientific controversy and uncertainty.” And these controversies should be resolved by elected officials, not unelected judges.
Wilkinson is correct that states must have some authority to restrict or prohibit medical treatment that may be harmful—for example, no one questions government authority to prohibit doctors from prescribing heroin. Similarly, a state may prohibit doctors from providing a treatment that is widely recognized as inappropriate for a particular medical condition. Although breast reduction surgery is the right treatment for some patients diagnosed with gender dysphoria, a state should allow doctors to prevent it from being used to treat the common cold.
Of course, the Fourth Circuit majority has a better response to Wilkinson. Physicians who provide gender-affirming care are not like drug addicts who write prescriptions for heroin, unless they Make treatment decisions consistent with current medical standards. as cauldron Most explain, the World Professional Association for Transgender Health recommends “assessment, counseling, and, as appropriate, social transition, hormone therapy, and surgical intervention to align the body with gender identity.”
Will this argument convince the majority of judges? probably not The Supreme Court’s Republican majority is notoriously allergic to competence. In two of the largest cases, the term is expected to transfer an extraordinary amount of policymaking authority from experts at federal agencies to the judiciary—a rejection of The seminal 1984 Supreme Court That decision said courts should defer to agencies in large part because “judges are not experts on policy.”
Still, the fact remains that the court’s two Republicans — Roberts and Gorsuch — joined the majority. Bostock. So, at least, there is some hope for trans patients that these two justices will enforce Bostock Prohibition of gender-affirming care.
