Republicans are preparing for a Supreme Court case that will determine whether state laws banning gender-affirming care for transgender youth are constitutional. Their main argument relies on one of the court’s most consequential precedents: the Dobbs decision.
The Tennessee attorney general’s office — the defendant in the case — is arguing that federal courts should not take the role of legislatures, an argument Republicans and conservatives backed when Roe v. Wade was being challenged.
“This is central to our argument on the right … asking the court to relegate this issue to the people and their legislators,” said Jon Schweppe, policy director for the American Principles Project, a conservative organization that works with lawmakers to introduce anti-trans measures. “So, similar to Dobbs in that the left is seeking an outcome where the court is weighing in and preventing the people from having a say.”
The case, U.S. v. Skrmetti, asks the justices to decide whether a Tennessee law prohibiting any in-person or telehealth “medical procedure” that allows “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” violates the 14th Amendment.
Rep. Kevin Hern, chair of the Republican Study Committee, told NOTUS that Dobbs “brought to the forefront the need for the voice of the people” and “it’s not a bad thing” that the precedent is being used in the Tennessee case.
Democrats say they saw this coming as soon as the Supreme Court justices overturned Roe v. Wade.
“This is one of the things that I warned about, and that we warned about early, that the Dobbs ruling was not just going to be used to attack abortion rights,” Rep. Alexandria Ocasio-Cortez told NOTUS. “It is now expanding out and having knock-on effects with IVF. It’s going to hurt gender-affirming care.”
“This has been the fear that we had, that they would use Dobbs to try to deny all kinds of health care to people,” said Rep. Diana DeGette, chair of the House Pro-Choice Caucus.
In its first brief at the district court level, Tennessee argues that the groups that brought the case are “ignoring the lessons of Dobbs” and asking the court to “conduct the sort of fact-finding that might be undertaken by a legislative committee.” It then adds that the case is “on a field that should be decidedly legislative and not judicial.”
But Dobbs is also being used to address a perhaps more complicated issue — that gender-affirming care bans should be evaluated under the same level of scrutiny as abortion bans, not under laws dealing with discrimination.
Laws restricting gender-affirming care “cannot be distinguished from a law that regulates abortion, which Dobbs holds is not sex discrimination at all,” the Tennessee attorney general’s office wrote to the district court.
Abortion-ban challenges are reviewed under what’s called a rational basis — a lower level of review than heightened scrutiny, which is reserved for race- and sex-discrimination cases — because these laws are legally seen as regulating a medical procedure that happens to impact women rather than preventing women from accessing medicine. The Supreme Court has never before answered the question on whether transgender status specifically should be evaluated under the same status as race.
“This is wholly distinguishable from Dobbs,” said Chase Strangio, deputy director for transgender justice at the American Civil Liberties Union and one of the lead attorneys on the case, opposing Tennessee’s argument in a press briefing. “This is not regulating medical treatment that happens to be limited to men as a group or women as a group.”
Strangio added that the issue around having this case be seen under heightened scrutiny instead of the minimum rational basis “really is a question of whether or not trans people are going to … have our rights actually reviewed by federal courts.”
“The entire purpose of heightened scrutiny is to ensure that the government is not enforcing overbroad generalizations about how men and women are or should be. That is the very work that heightened scrutiny should do, and we are asking the Supreme Court to make that clear,” he said.
Initially, a Trump-appointed district court judge blocked Tennessee’s ban, arguing that the case should be reviewed under heightened scrutiny and Tennessee “fails” to surpass that level of review because it “discriminates on the basis of sex” by targeting trans youth. But the 6th Circuit Court of Appeals ultimately reversed the district court ruling.
The appellate court sided with Tennessee, arguing that the district court “wrongly” decided to evaluate the case under heightened scrutiny, arguing that discrimination against transgender people does not reach that level.
“If a law restricting a medical procedure that applies only to women does not trigger heightened scrutiny, as in Dobbs … these laws, which restrict medical procedures unique to each sex, do not require such scrutiny either,” the appeals court wrote in its opinion.
Tennessee is required to file its first brief to the Supreme Court in early October. The justices are expected to issue a decision in June of next year, and the ruling will have sweeping impacts on how transgender people are viewed under the law, particularly if it upholds the Tennessee ban and decides that laws targeting trans people are not subject to a heightened review.
“It does not guarantee a win for state governments that want to discriminate against trans people in any other area of the law, but it would make it easier for them to argue that they’re justified in that discrimination,” said Sarah Warbelow, vice president of legal for the Human Rights Campaign.
Rep. Robert Garcia, co-chair of the Congressional Equality Caucus, told NOTUS that Democrats need to focus on “court reform” because if “we don’t make drastic change, this is the direction we’re going to go in. There’s going to be additional loss of rights for women, additional loss of rights for trans people, additional loss of rights for gay people, additional loss of rights for working people.”
Gender-affirming care is endorsed by leading medical organizations like the American Medical Association, the American Academy of Pediatrics and the Endocrine Society, which submitted an amicus brief to the Supreme Court arguing that this type of care “saves lives.”
But even so, Democrats are expecting the court to side with Tennessee.
“I think we can expect the Supreme Court to always do the worst,” Garcia told NOTUS. “I think that’s really shameful.”
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Oriana González is a reporter at NOTUS.