The U.S. Supreme Court will weigh in on Tennessee’s youth gender-affirming care ban

OPINION: The case, which could affect future legislation restricting trans rights, should put us on guard

On Monday, trans people in the U.S. got the news that we have been half dreading for years: The U.S. Supreme Court has decided to finally take up a case over a youth gender-affirming care ban. 

The case, United States v. Skrmetti, was initially brought by the Biden administration to challenge a law banning gender-affirming care for youth, which was passed by the Tennessee state legislature in March 2023. That law was initially blocked by lower court judges before being allowed to go into effect by the Sixth Circuit Court of Appeals. The question at hand for the high court will be whether Tennessee’s care ban violates the Equal Protection Clause of the Constitution, which states that the government cannot treat people in the same manner as it treats others in similar circumstances.

The case itself is, of course, critical to the future of trans kids and their families in Tennessee—and, by extension, across America. The court’s decision will affect the stream of similar laws passed in other states in recent years that have restricted youth transition care. But it will also serve as the first case to exclusively delve into political questions involving the trans rights movement at large. In late 2019, the court heard Bostock v. Clayton County, which had combined a trio of cases involving LGBTQ2S+ litigants suing for employment protections in the workplace. One of those cases involved Aimee Stephens, a funeral home employee who was fired after coming out as trans to her employer.

But this latest Supreme Court case is solely about trans rights. There are no gay or lesbian co-litigants, meaning it will set precedence going forward for inevitable future trans rights cases.

Even back during Supreme Court arguments over Stephens’s case in Bostock, observers of the court could tell that the justices were spoiling for a fight over larger trans legal questions, like bathroom usage. I was in the court myself that day as the nine cis justices openly argued over where trans people like myself should be going to use the bathroom. Ironically, my most vivid memory from that day was that I had to pee almost the entire time, and ended up using the women’s room at the Supreme Court.

I think it’s likely that this extremely conservative Supreme Court will rule against us in the Tennessee case. There are members of the court who have openly agitated to roll back even marriage equality, and would seemingly relish the chance to swat down a potentially groundbreaking trans rights case.

Heck, Justice Alito is even married to a woman who loses it whenever she sees a neighbour’s Pride flag.


But then again, I thought for sure we’d lose at least the Stephens part of the Bostock case, and four of the six justices who voted to protect trans people in that case are still on the court, along with liberal justice Ketanji Brown Jackson, who was appointed by President Biden in June 2022 to replace former justice Stephen Breyer.

A finding upholding Tennessee’s law will likely prompt red state legislatures to test the waters with ever more expansive laws restricting trans rights, just as they did with abortion over the last several decades. It’s not outside the realm of possibility that at least some states may look into bans on adult gender-affirming care should they win the day here with SCOTUS. We know that trans kids and their families are migrating away from their childhood communities to safer harbours in blue states and even trans-friendlier countries, and we could see the same domestic trans refugee phenomenon among adults as well.

“Americans have to constantly rely on nine government officials with lifetime appointments and no accountability to the public.”

At the same time, the court’s conservatives could dial in their firebrand state legislative colleagues by slapping down this ban, however unlikely that may be. I find it hard to trust John Roberts or Neil Gorsuch with my people’s future.

While thinking about this case and the court system and how we have to constantly rely on nine government officials with lifetime appointments and no accountability to the public, I find myself even more frustrated with the government system we have, and the complete abdication of responsibility with the legislative branch.

On one hand, we shouldn’t even be in this situation: we should have passed the Equality Act years ago when it was repeatedly passed in Democratically held U.S. houses. In those years, the Equality act—which would grant queer and trans people full legal protection under civil rights law, including in medical systems—was filibustered by conservative senators. Democrats could have killed the filibuster to prevent a potential trans doomsday at the Supreme Court and consistently chose not to, with Senate majority leader Chuck Schumer failing to muster enough votes to do so.

On the other hand, even killing the filibuster could potentially have negative repercussions for trans people should Republicans get another trifecta in the House, Senate and White House. Without the filibuster, there would be nothing stopping conservatives from repealing the Equality Act themselves and introducing their own draconian restrictions nationwide. This would leave trans people in a different sort of legal limbo, at the whims of whoever controls the government at the time.

So instead we wait and dread what the nine cis justices have in store for us when they make their decision later this year. In the meantime, we need to support those most affected by these bans. They need our support no matter how SCOTUS decides. Local trans organizations will be amongst the first stops that families new to an area will turn to, and we should donate to them. Look for outspoken local politicians fighting on trans people’s behalf. We may be waiting for doom, but we can still fight and support those who need our help.

Katelyn Burns is a freelance journalist and columnist for Xtra and MSNBC. She was the first openly trans Capitol Hill reporter in U.S. history.

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