The Supreme Court will hear a major trans rights case next week amid escalated attacks on the minority group from the political right.
In the case, United States v. Skrmetti, the Biden DOJ, alongside a few trans kids, their parents and a doctor, are challenging a Tennessee law that bans gender-affirming care for minors. The DOJ argues that the ban is a violation of the Equal Protection Clause; the law is clearly discriminatory, it argues, since treatments including puberty blockers and hormones are still available to cisgender minors under the law, and only forbidden as part of trans health care. Use for conditions that affect other children, including precocious puberty, are explicitly excluded from the ban in the law.
Tennessee says that the ban is not discriminatory, since it forbids both male and female minors from obtaining gender-affirming care. The state also argues that transgender people are not a protected class, which would mean that laws targeting them are not subject to a higher standard to pass muster. The state cites Dobbs throughout in support of its position.
The state’s briefs are replete with positions averse to the medical consensus (a mainstay familiar to those who have tracked right-wing abortion jurisprudence), claiming that gender-affirming care worsens outcomes for minors struggling with conditions including gender dysmorphia.
A decision in Tennessee’s favor here could expand well beyond the rights of trans minors to roll back protections against a much broader swath of gender discrimination.
The Roberts Court, even with its right-wing majority, has delivered surprising decisions on LGBTQ issues in the past. In 2020’s Bostock v. Clayton County, Chief Justice John Roberts and Neil Gorsuch joined the liberals to rule that employers cannot discriminate against employees due to their sexuality or gender identity under Title VII of the Civil Rights Act.
Still, such a surprise seems more far-fetched this time around, perhaps because the right-wing legal and political worlds, from which this majority came and in which it still participates, is so virulently anti-trans at this moment.
President-Elect Donald Trump ran aggressively on scapegoating trans people, pouring a reported $215 million into ads including one that proclaimed “Kamala is for they/them. President Trump is for you.”
The attacks are likely to continue into his term. In a 2023 campaign video, Trump vowed to ban gender-affirming care for youth across the country, to ban Medicaid and Medicare insurance coverage for all gender-affirming care and to withhold federal funds from hospitals that provide it.
Meanwhile, red-state legislatures continue to pass anti-trans bills, many echoing Tennessee’s prohibition on gender-affirming care for minors.
The attention-thirstiest Republicans clearly see the issue as one that, in this political moment, will pay dividends. Rep. Nancy Mace (R-SC), one of the most ideologically flexible members in feeding her addiction to media attention, has devoted her platform to attacking incoming Rep. Sarah McBride (D-DE), who will be the first openly trans person to serve in Congress. Speaker Mike Johnson (R-LA) amenably announced a “rule change” in which McBride would be forced to use the men’s bathroom if she couldn’t find a unisex one. As Rep. Alexandria Ocasio-Cortez (D-NY) and others have pointed out, how such a rule would be enforced is unclear.
Republicans, already buoyed by their electoral success, are projecting confidence that their anti-trans aggression was not and will not be punished by voters.
When asked about Mace’s resolution to force McBride to use the men’s bathroom, one unnamed moderate Republican perhaps hyperbolically responded to Axios: “I mean — a presidential election may have been decided on this issue.”
