Supreme Court case could shape the future of trans rights

On Dec. 4, the U.S. Supreme Court heard oral arguments in L.W. v. Skrmetti /United States v. Skrmetti, a critical case regarding transgender people's rights to bodily autonomy and equal protection under the law.

Samantha and Brian Williams of Nashville and their 16-year-old trans daughter "L.W." are challenging a Tennessee statute that bans gender-affirming hormonal therapies for transgender people under 18. The National ACLU, ACLU of Tennessee, Lambda Legal, and Akin Gump Strauss Hauer & Feld LLP represent the plaintiffs, who also include Memphis-based physician Dr. Susan Lacy and two other families of transgender youth needing hormones who chose to remain anonymous. The young plaintiffs and their parents have spoken and written movingly about the "dark place" they were in prior to starting treatment, and the joy, hope and confidence that ensued when they were able to access evidence-backed and age-appropriate medical care.

The statute challenged here is part of the wave of anti-transgender laws that has swept the nation since 2021, seeking to eradicate trans people from all walks of civic and public life. All told, 24 states have enacted categorical bans on gender-affirming health care for transgender adolescents, despite mainstream medical authorities' consensus view that puberty-suppressing treatments and gender-affirming hormonal therapy are safe and beneficial for many youth. Experts have estimated that 3,000 transgender adolescents live in Tennessee, while a total of about 100,000 live in states that have barred these treatments. Numerous lawsuits have been filed alleging that politicians' intrusion into a private medical decision better left to families and doctors is unconstitutional.

Tennessee's legislature explicitly noted that its ban sought to encourage young people to "appreciate their sex" and to prohibit medical interventions "that might encourage minors to become disdainful of their sex." Belying claims that its purpose was protecting health and safety, Tennessee's statute continues to permit prescribing the very same medications to minors for other medical reasons, such as if they are experiencing early puberty. Tennessee's law specifically authorizes providing the same treatments to young people diagnosed with "disorders of sex development," more respectfully known as intersex conditions - even if they are too young to consent to treatment.

Shortly after the plaintiffs filed their complaint in the spring of 2023, the U. S. government intervened on the plaintiffs' side. The U.S. District Court for the Middle District of Tennessee granted a preliminary injunction on Equal Protection grounds, temporarily blocking the law from taking effect. However, the Sixth Circuit stayed the injunction, and subsequently reversed it, finding that "plenty of rational bases exist" for both Tennessee's ban and a similar Kentucky law. The individual plaintiffs as well as the United States as intervenor then petitioned the U.S. Supreme Court for certiorari. The federal petition was granted.

Solicitor General Elizabeth Prelogar argued first, followed by Chase Strangio as co-director of the national ACLU's LGBTQ & HIV Project. Strangio made history as the first openly transgender lawyer to argue before the Supreme Court. Both advocates urged applying heightened scrutiny to Tennessee's law, since it regulates medication access based on sex assigned on birth. During the argument, Justice Kagan noted her agreement that this is clearly a sex classification warranting heightened scrutiny when she characterized the challenged statutory framework as "imbued with sex." In the alternative, Prelogar and Strangio noted that the transgender community is a discrete and insular minority that should be entitled to heightened scrutiny even when viewing the statute's sorting mechanism as rooted in "transgender status" rather than sex. They asked the Court to clarify that heightened scrutiny applies here and remand the case for further proceedings, rather than attempting to reach a merits ruling on the present limited record.

Focusing on the "transgender status" argument, Justice Amy Coney Barrett asked: Is there a documented history of de jure discrimination against transgender Americans? Strangio and Prelogar cited several examples, including explicit bans on military service by transgender people and criminal bans on "cross-dressing." Additional historical examples they might have elected to reference include the exclusionary definition of disability in the Americans with Disabilities Act or various eras' prohibitions on providing gender-affirming medical care or paying for it with public funds. Moreover, variations on de jure discrimination also happened through government institutions' longstanding silence about name and identity document changes and other state actions necessary for transgender people to fully participate in society as their authentic selves.

Some observers have drawn parallels between this litigation and Bostock v. Clayton County, the 2020 employment discrimination case in which the Court found that firing a worker based on either sexual orientation or transgender status violates a federal statute's bar on discrimination "because of sex." However, the author of the textualist Bostock majority opinion, Justice Gorsuch, offered no questions or comments during more than two hours of Skrmetti arguments.

Although court watchers normally expect silence on the docket of a major case between the day of oral argument and the final weeks of the Court's term in June, the impending change of federal administration and President Trump's recent vocal opposition to transgender rights mean that the government is likely to inform the Court of a change in its position in this case shortly after Jan. 20. However, this will not automatically resolve the matter since the individual plaintiffs will retain standing and motivation to pursue the case even if the United States drops out of it.

Transgender people and their advocates and allies will anxiously await resolution in Skrmetti, which, in turn, could determine the viability of pending and future legal challenges to other state- and federal-level attacks on this embattled community. But the impacts are not cabined to transgender people. The legal and political arguments used to justify Tennessee's ban on gender-affirming hormone therapies closely resemble the ones used to overturn Roe v. Wade and attack reproductive rights in statehouses across the country, and that underpin many of the Project 2025 threats to other freedoms, all part of a coordinated effort to control Americans' families, bodies and lives.