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The U.S. Supreme Court today upheld laws in roughly half the states that ban gender-affirming care for transgender minors. The vote was 6-3 along ideological lines. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The case was brought by transgender children and their parents in Tennessee, who claimed that the state's ban on hormone treatments and puberty blockers for trans minors discriminated on the basis of sex. They contended they were being denied equal protection of the law because the same medications that are banned for minors with gender dysphoria are permitted for other minors with conditions such as early- or late-onset puberty.
But today, Chief Justice John Roberts, writing for the conservative court's supermajority, rejected that argument entirely. He said that laws like Tennessee's that turn on age or medical use are not subject to the kind of heightened legal scrutiny that courts use to look at workplace sex discrimination, for instance. Instead, the court in this case applied the lowest level of legal scrutiny - called rational basis - meaning that if there's any rational justification for the law, it passes constitutional muster.
Acknowledging what he called the fierce scientific and policy debates about the safety, efficacy and propriety of medical treatments in an evolving field, Roberts said that it is not the court's job to judge the wisdom or fairness of Tennessee's law. The court's job, he said, is only to determine whether the law violates the constitution's guarantee to equal protection of the law. Having concluded that it does not unconstitutionally discriminate, he said, we leave these policy questions to the people, their elected representatives and the democratic process. Reaction to the decision was swift.
JENNIFER LEVI: It's a devastating decision.
TOTENBERG: Jennifer Levi is a senior director at GLAD Law, an advocacy organization for LGBTQ rights.
LEVI: There's no sugarcoating this opinion. It means that in the more than half the states where the care is banned, families won't be able to get the care that their children need. The court really abdicated its responsibility to protect a vulnerable group.
TOTENBERG: In a rare dissent from the bench today, Justice Sonia Sotomayor echoed that sentiment. Because the Tennessee law explicitly classifies its ban on the basis of sex and transgender status, she said, the court is required to use a higher level of scrutiny. Instead, she said the majority contorts logic and precedent to say otherwise, retreating from meaningful judicial review exactly when it matters most. Because the court abandons children and their families to political whims, she said, in sadness, I dissent.
Joining her in full was Justice Ketanji Brown Jackson, with Justice Elena Kagan partially joining, too. Kagan would have required a higher level of scrutiny, but she would have stopped there. Given the extensive and disputed evidence presented in the lower courts, she said, the court should have sent the case back to the lower courts to determine whether the state law was based on stereotypes and prejudices or legitimate state interests.
While the court's majority opinion gave states broad powers to ban or regulate transgender medical care for minors, it left unresolved a number of related questions that very likely will reach the Supreme Court next term. Among them is a challenge to the Trump administration's ban on transgender people in the military and a challenge to the Trump administration's policy denying passports for transgender individuals unless they list their sex at birth.
Also not resolved by today's ruling are state bans on transgender athletes participating in school sports. Federal law bars discrimination based on sex in any educational program or activity that receives federal funding. Here's John Bursch, who argued and won today's case on behalf of the conservative Alliance Defending Freedom.
JOHN BURSCH: About half the states have adopted the save women's sports laws, and they prohibit boys who identify as girls from being on the girls' sports team.
TOTENBERG: As he notes, challenges to two of those state laws are now pending before the Supreme Court. Farther down the road, he says, is another question - whether states can ban medical care for transitioning adults.
BURSCH: I think there would be a rational basis to also prohibit it for adults, and that would be up to the states to decide.
TOTENBERG: The court will be back Friday with more opinions. Nina Totenberg, NPR News, Washington.
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