A Tennessee state law could determine the future of gender affirming care nationally now that the U.S. Supreme Court has agreed to take up a case over a constitutional battle concerning transgender people's rights.
Since 2022, the number of states banning gender-affirming care for minors has skyrocketed from four to 25, and the justices will be asked whether this is about a state's right to regulate health care access or whether these bans violate the civil rights of transgender people "on the basis of sex."
Witnessing the evolution of Tennessee's law, I believe these laws came about in response to anti-trans fervor fueled by far-right politicians who saw limiting trans people’s rights as a winning issue for their base.
If the Supreme Court is true to precedent, justices must side with the vast majority of district court judges who have decided that the bans are blatantly unconstitutional and at least in one ruling "based on bigotry."
Tennessee's attorney general wants to win the fight at the Supreme Court
However, Tennessee Attorney General Jonathan Skrmetti clearly disagrees.
The lawsuit bears his name − L.W. v. Skrmetti −and he said he plans on “finishing up the fight” over whether state bans on gender-affirming care for minors are constitutional.
At issue:
Are Tennessee’s ban and others like it across the country about a state’s interest in protecting transgender minors from “irreversible” medical treatments?
Or do these prohibitions trample on transgender people’s civil rights and freedom to self-determination, and parental rights to access medical care for their children who live with gender dysphoria?
Skrmetti’s position clearly falls in the first camp. After all, it is his role is to defend the laws of the state of Tennessee, in this case, the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity Act of 2023.
However, multiple federal district judges have ruled against or agreed to halt enforcement of laws in different states because they raise questions over whether lawmakers infringed upon the constitutional rights of transgender minors and their parents.
Court of Appeals punted on the constitutional issue
On Monday, Skrmetti wrote in a public statement:
"We fought hard to defend Tennessee's law protecting kids from irreversible gender treatments and secured a thoughtful and well-reasoned opinion from the Sixth Circuit. I look forward to finishing the fight in the United States Supreme Court. This case will bring much-needed clarity to whether the Constitution contains special protections for gender identity.”
Except that the U.S. Sixth Circuit Court of Appeals’ 2-1 majority did not really answer the key question and they presumed the plaintiffs would lose.
Chief Judge Jeffrey S. Sutton and Judge Amul R. Thapar reversed a lower court injunction on enforcing Tennessee and Kentucky’s bans and allowed the case to proceed in the legal system.
They acknowledged the existence of gender dysphoria, but they said that the relative newness of certain treatments, including puberty blockers, made it difficult to determine the long-term consequences of the treatment.
“Prohibiting citizens and legislatures from offering their perspectives on high-stakes medical policies, in which compassion for the child points in both directions, is not something life-tenured federal judges should do without a clear warrant in the Constitution,” they wrote.
In other words, they punted on the constitutional question.
In her dissent, however, Judge Helene N. White did not mince words:
“Tennessee’s and Kentucky’s laws tell minors and their parents that the minors cannot undergo medical care because of the accidents of their births and their failure to conform to how society believes boys and girls should look and live. The laws further deprive the parents — those whom we otherwise recognize as best suited to further their minor children’s interests — of their right to make medical decisions affecting their children in conjunction with their children and medical practitioners. For these reasons, I dissent.”
Dahron Johnson, Nashville co-chair of the Tennessee Equality Project, said in a statement about the high court taking up the case that Tennessee "has abused its power in a brazen overreach seeking to gain access to the medical records of transgender and gender-diverse Tennesseans."
"As the Supreme Court takes up (the case), we trust that the Court will recognize the ways Tennessee, in banning such care, has sought to undermine that trust and communication, blocking access to life-saving health services for our state’s gender-diverse children," she added.
Federal judge calls out state bans as 'based on bigotry'
In June, a federal judge blocked Florida’s ban on gender affirming care for minors, ruling it unconstitutional
However, Judge Robert Hinkle went further in his ruling and called the law out as legislation “based on bigotry.”
“This is a politically fraught area. There has long been, and still is, substantial bigotry directed at transgender individuals,” Hinkle wrote. “Common experience confirms this, as do some of the comments of legislators recounted above. And even when not based on bigotry, there are those who incorrectly but sincerely believe that gender identity is not real but instead just a choice. This is, as noted above, the elephant in the room.”
Prior to Tennessee’s enactment of its ban, state and federal lawmakers embraced a 2022 claim from The Daily Wire right-wing outlet claiming Vanderbilt University Medical Center was “butchering, mutilating and sterilizing” children – something that still has yet to be proven.
But Republican politicians, including U.S. Sen. Marsha Blackburn, held a Rally to End Genital Mutilation in front of the state Capitol just weeks before the start of the legislative session.
In a 2023 guest opinion, trans activist Jace Wilder offered three reasons why the state should not ban care.
"How is it that a ban, that only last year was seen astoo extreme in this state by its leaders, is being pushed through now? The factor that may come to mind is what we keep hearing: 'It's to protect the kids from mutilation.' This isn’t the case," he said.
State lawmakers also wrote guest essays in The Tennessean explaining why they were introducing the ban on gender-affirming care for minors.
“Cultural forces from the leftwould like us to accept an alarming new myth; that gender is not a biological reality,” wrote House Majority Leader William Lamberth in one column 2022 shortly before the rally. Senate Majority Leader Jack Johnson wrote a defense of the bill in early 2023 during the session. They co-wrote an essay in August 2023 defending the law.
Civil Rights Act should extend to all minors' access to health care
Over the last several years, the Tennessee General Assembly has made national headlines for targeting LGBTQ+ rights in athletics participation, bathroom use and the community’s inclusion in curriculum students learn.
The Supreme Court ruled in the 2020 Bostock v. Clayton County decision that employment discrimination against people based on gender identity was unconstitutional under the Civil Rights Act. Hopefully, they will use similar logic to protect the rights of transgender children and their parents to access medical care.
There is political gain in enacting these bans, but it doesn’t mean lawmakers are right.
David Plazas is the director of opinion and engagement for the USA TODAY Network Tennessee. He isan editorial board member of The Tennessean. He hosts theTennessee Voices videocastand curates theTennessee VoicesandLatino Tennessee Voicesnewsletters. Call him at (615) 259-8063, email him atdplazas@tennessean.comor tweet to him at@davidplazas.
This article originally appeared on Nashville Tennessean: Supreme Court must protect trans healthcare, gender-affirming care
