CNN
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Just days after the Supreme Court’s conservative supermajority upheld Tennessee’s ban on gender-affirming care for transgender minors in one of its most important cases of the year, the justices must now decide the fate of other anti-trans policies.
As soon as Monday, the nine are set to confront six separate cases that have languished on their docket — some for over a year and a half — including several appeals that deal with whether transgender athletes can play on sports teams that align with their gender identity.
The high court’s 6-3 ruling this month in US v. Skrmetti delivered a significant legal setback for trans youth and their advocates, who have spent years litigating against health care bans that have been enacted in more than half the country. But the decision was ultimately limited to questions about health care and left other key legal issues for the trans community unresolved.
“The whole gamut of discrimination against trans folks really is at the place where it was before Skrmetti,” said Josh Block, an attorney for the American Civil Liberties Union who represents plaintiffs in some of the pending appeals. “Skrmetti resolves a hugely important issue, but they resolve it in a way that is narrow and doesn’t have an immediate fallout for other types of discrimination.”
The court could agree this week to hear arguments in the backlog of cases dealing with trans issues — putting transgender rights front and center for a second year in a row. It could also dispose of the cases summarily, which would mean requiring lower courts to review their decisions in light of Skrmetti.
In addition to the sports issue, the justices are juggling appeals that deal with health insurance plans that deny coverage for gender-affirming care and an executive order signed by the governor of Oklahoma that bars the state health department from allowing anyone to alter the sex or gender on their birth certificate.
If the Supreme Court summarily sends those cases back to a lower court, it would likely wipe out decisions that were favorable to transgender advocates.
Whether the justices take up any of the cases for their next session is no small thing: The court has been reluctant in recent years to consider the extent to which the Constitution or other federal laws provide protection to transgender Americans. Before the Tennessee case, the last time the high court decided a major dispute dealing specifically with trans rights was 2020, when the justices said that federal civil rights law protects transgender workers.
But that decision was limited to the workplace, and the court declined in Skrmetti to decide whether the rationale in that case can be applied elsewhere.
Attorneys for the states of Idaho and West Virginia, which both enacted anti-trans sports bans in recent years, wasted no time responding to the Skrmetti decision, filing rush briefs at the Supreme Court arguing that the justices should not close the door on the other pending cases. The lower courts had concluded the laws at issue in those cases violated the Constitution’s Equal Protection Clause and Title IX, a federal law that prohibits discrimination on the basis of sex at schools that receive federal aid.
Because the court decided the Skrmetti case on the ground that Tennessee’s gender-affirming care ban classified based on age and medical use, the states’ lawyers argued, it doesn’t help resolve challenges to the sports bans, which turn more directly on sex.
“While Skrmetti is a landmark decision, our specific question remains,” West Virginia Attorney General JB McCuskey said last week.
Attorneys for Idaho also urged the justices to hear their case, arguing that simply sending it back down for a lower court to reconsider the challenge in light of the Skrmetti decision “is unlikely to accomplish anything but more harm to women and girls.”
“Whether designating sports teams based on biological sex violates the Equal Protection Clause is a critically important issue that has been roiling the lower courts, frustrating female student athletes, and confounding every level of government for years,” they wrote in court papers.
Research on trans people’s athletic performance is scarce, and there have been no large-scale scientific studies on the topic or on how hormone therapies may affect their performance in specific sport categories.
Chief Justice John Roberts’ opinion in Skrmetti made no mention of sports bans, which have been enacted in more than two dozen Republican-led states. But conservative Justice Amy Coney Barrett made clear in a concurring opinion that she’s against adding transgender status to the short list of personal identities like race and sex that receive special protection under the 14th Amendment. And she pointed to sports bans to argue that courts shouldn’t be over-policing decisions made by elected lawmakers.
“Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy — ranging from access to restrooms to eligibility for boys’ and girls’ sports teams,” she wrote in an opinion joined by Justice Clarence Thomas. “But legislatures have many valid reasons to make policy in these areas, and so long as a statute is a rational means of pursuing a legitimate end, the equal protection clause is satisfied.”
While bans on gender-affirming care for minors have become a political lightning rod in recent years, other restrictions on access to health care for trans Americans have garnered less attention, including ones impacting adults.
Last year, North Carolina and West Virginia asked the high court to review an appeals court decision that deemed unlawful those states’ exclusion of coverage for gender-affirming care in insurance plans they sponsor. The Richmond, Virginia-based court held that the exclusions in both state plans violated the Equal Protection Clause.
When the states first asked the Supreme Court to step into the disputes, they pressed the court to take the cases up notwithstanding the justices’ announcement that they would hear the Tennessee case, which presented similar legal questions.
West Virginia, in particular, stressed the fact that the 4th US Circuit Court of Appeals also decided that its plan violated various federal laws, making the need for further review more necessary because the Skrmetti case dealt only with an alleged constitutional violation.
“Skrmetti did not address the statutory questions that the Fourth Circuit resolved against West Virginia. As for the equal-protection analysis, the level of scrutiny, the importance of a state’s interest, and the relative ‘fit’ between that interest and the state’s solution are different in the Medicaid context. So lower courts and States will still need more help after Skrmetti,” they wrote.
The court is also considering hearing an appeal over a challenge to a Kentucky law similar to the Tennessee ban.
There’s significant overlap between the two cases, but a key distinction lies in the fact that the challengers in the Kentucky case are asking the court to decide whether that state’s ban also violates a parent’s right to make medical decisions for their children.
During oral arguments in the Tennessee case last December, Barrett appeared interested in whether a ruling in the state’s favor would foreclose courts from considering any future challenge to the law based on the parental rights issue — signaling that there may be support on the bench for addressing that piece of the debate at a later time.
Karen Loewy, an attorney with the LGBTQ rights group Lambda Legal, said that while the court’s Skrmetti decision makes it harder for litigants to fight back against laws like Tennessee’s, the conservative majority was careful to “leave the door open” for other arguments to be considered by the justices in the remaining cases.
She cited both the parental rights issue and the court’s decision to not address whether the 2020 ruling had any application outside of the employment space.
“Those are all still tools and legal arguments that are very viable in challenging other kinds of discrimination,” Loewy said.
