WASHINGTON (CN) — The push to put transgender rights before the Supreme Court was not subdued by the justices’ major ruling on gender-affirming health care for minors on Wednesday. Instead, the decision served as a preview of what cases might come to the high court steps next.
Alabama saw the ruling as an endorsement of other restrictions on transgender individuals, expressing optimism that prohibitions on transgender athletes in women’s sports, bathroom bills and other laws regulating transgender individuals will also survive legal challenges.
“Within the state of Alabama, there started to be a conversation about whether there is civil liability for providers who may have misled patients,” Katherine Green Robertson, chief counsel for the office of the Alabama Attorney General, told Courthouse News.
While disquieted by the loss and its profound impacts for transgender kids in over two dozen states that ban gender-affirming care, transgender advocates weren’t cowed by the decision, resolute on continuing their fight within the pathways left open by a potential divide among the conservative justices.
“We certainly decry that decision as just absolutely not in line with the court's prior decisions, and obviously, it is that reasoning that is causing great harm to our clients and transgender young people across the country,” Chase Strangio, co-director of the ACLU’s LGBTQ & HIV Project, said in a briefing. “By the same token, I think it's important to point out some of the ways that this opinion is much narrower than it could have been.”
Transgender minors, their families, and a doctor argued that Tennessee’s ban discriminated based on sex and transgender status. They relied on the equal protection clause of the Constitution and a 2020 ruling from the Supreme Court known as Bostock v. Clayton County, which held that an employer unlawfully discriminated against an employee for their transgender status.
The majority opinion avoided ruling on most of those key arguments, however. Chief Justice John Roberts, a George H.W. Bush appointee, rejected the notion that bans on transgender health care are based on sex, instead viewing the statute as a regulation based on age and a specific medical procedure.
This framing lets the court off the hook on Bostock as well.
“The Sixth Circuit had gone out of its way to limit Bostock's reasoning to Title VII, which was inconsistent with the text of that opinion,” Strangio, who was the first openly transgender attorney to argue at the Supreme Court on behalf of those plaintiffs, said. “The court here does not opine on whether it is a decision that applies outside the context of Title VII.”
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. The Sixth Circuit’s ruling would have limited Bostock’s protections against transgender discrimination to workplaces, but all six justices in the majority reversed that holding.
Court watchers saw some tension on the conservative wing over Bostock’s holding. Justice Neil Gorsuch, a Donald Trump appointee, authored the surprise win for transgender rights, breaking from the ranks of his other conservative colleagues.
“We're talking about a case that most of the members of today's majority did not agree with Justice Gorsuch’s result in Bostock,” Carrie Severino, president of the Judicial Crisis Network, said. “I think in order to maintain a united opinion, it was necessary not to get into details about whether Bostock was rightly decided or not.”
In a series of concurring opinions from Justices Amy Coney Barrett, Clarence Thomas and Samuel Alito, divisions within the conservative majority were laid bare. Thomas, a George H.W. Bush appointee, noted that he still thinks Bostock was incorrectly decided.
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