A federal referendum on the right to trans healthcare for minors? Yes, the U.S. judicial system is considering the case. In fact, it already has, technically speaking. And some are concerned we may be sleepwalking into a Supreme Court ruling that could set a legal precedent for the “right” for states to ban trans care for Americans under the age of 18.
Back in July, the U.S. Court of Appeals for the Sixth Circuit gave an emergency motion in L.W. v. Skrmetti, upholding a Tennessee law banning gender-affirming care for trans minors. The court is set to appeal its preliminary injunction by September 30 and declare a final ruling on the matter, as, according to the opinion of Sixth Circuit Chief Judge Jeffrey Sutton, the initial emergency motion may “not suffice to see our own mistakes.”
If the Sixth Circuit does not deviate from its initial ruling this week, trans Americans may face surmounting federal obstacles to affirming trans care as a constitutional right. The ACLU’s Gillian Branstetter tweeted that the decision is “likely setting up the first Supreme Court case concerning the right of trans people to access the care we need to be free.”
Branstetter went on to share a Vox analysis of L.W. that explains why this case could reach the highest court.
“In the fairly likely event that the Sixth Circuit hews to Sutton’s position, however, that will make it very likely that the Supreme Court will take up this issue, and soon. The justices pay special attention to legal questions that have divided lower federal appeals courts when deciding which cases to hear,” Vox‘s Ian Millhiser wrote in July. “And if they do, and Sutton’s opinion is embraced by a majority of the justices, that would be a devastating blow to LGBTQ rights.”
A ‘historic loss in the Supreme Court?’
Tennessee’s Senate Bill 0001 “generally prohibits” healthcare workers from offering any medical procedure that involves “enabling a minor to identify with, or live as, a purported identity inconsistent with the immutable characteristics of the reproductive system that define the minor as male or female”—which Tennessee defines “by anatomy and genetics existing at the time of birth.”
This kind of transphobic reasoning is, of course, widespread across many of the anti-trans bills we’ve seen over the past two years. According to Vox, the federal district courts generally held that “bans on gender-affirming care for minors should be blocked,” but L.W.’s initial ruling “destroys this consensus, and potentially sets up LGBTQ Americans for a historic loss in the Supreme Court.”
In other words, if L.W. makes its way to SCOTUS, a ruling could give discriminatory state legislatures a free pass to keep banning trans healthcare for minors. That would be a scary development, and a crushing blow for the ACLU and other organizations working to protect trans youth from anti-trans laws.
(featured image: Ted Eytan / Flickr, CC BY-SA 2.0)
