The Courts

Place your bets and spin the wheel where it lands nobody knows! With Trump and the Republicans packing it is a roulette wheel on how the courts will rule.

The Groundwork For a Supreme Court Case on Gender-Affirming Care Is Being Laid Now The legal battle around transgender rights has shifted dramatically. Here's why — and what could come next.
The Advocate
By Orion Rummler in the 19^th
October 12 2023

For much of 2023, federal judges were consistently blocking bans on gender-affirming care from taking effect. Siding with LGBTQ+ and civil rights groups, those judges repeatedly found that banning gender-affirming care is likely unconstitutional on the grounds of the equal protection and due process clauses of the 14th Amendment.

Now, the legal battle around transgender rights has shifted dramatically after two federal appeals courts rebuked those lower-court decisions by finding that gender-affirming care is not protected by the Constitution.

It was the Trump judges ruling against us while all the other judges ruled in our favor.

The conflicting decisions, and the questions they raise over the 14th Amendment and sex discrimination protections, may eventually propel a transgender rights case to the Supreme Court. Here’s how the groundwork is being laid out in the courts now.

The $64,000 question is… will it be enough?

The 6th U.S. Circuit Court of Appeals ruled in late September that gender-affirming care bans for trans youth must remain in place in Kentucky and Tennessee as lawsuits in those states continue. The 11th Circuit ruled in August via a three-judge panel that Alabama can enforce its gender-affirming care ban.

These decisions extend to all the states in their jurisdiction. The 6th Circuit decision directly impacts Ohio and Michigan alongside Kentucky and Tennessee, while Florida and Georgia are also bound by the 11th Circuit decision.

These two rulings both cite the Supreme Court case that ended the federal right to an abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization argued that abortion access is not “deeply rooted” in the nation’s history, and therefore not protected under 14th Amendment. Now, this same view is being applied to gender-affirming care.

And that is where the nail bitter comes in. Will the justices narrowly focus in on “States Rights” or will they also look at the Fourteenth Amendment?

The argument that banning gender-affirming care is not sex discrimination piggy-backs off of Dobbs’ reference to the pregnancy discrimination case Geduldig v. Aiello, said Ezra Ishmael Young, a civil rights lawyer and scholar. In Geduldig, the high court asserted that excluding pregnant women from a state insurance program was not actually an exclusion based on gender, but based on physical condition.

You can see how nitpicky by the courts can be, can selectively ignore other parts of the Constitution.

In August, the 9th U.S. Circuit Court of Appeals upheld an injunction that prevents Idaho from policing how trans students join school sports. A three-judge panel on the 9th Circuit found that because the sports ban likely violated the 14th Amendment, a district court did not abuse its discretion when it first blocked the ban from taking effect.

Separately, the 4th Circuit found last year that the Americans with Disabilities Act extends protections to people with gender dysphoria — arguing that a law excluding gender dysphoria and gender identity disorders would discriminate against transgender people as a class. This implicates 14th Amendment protections under the equal protection clause, Judge Diana Gribbon Motz wrote in the majority opinion.

In addition, the 8th Circuit sided last year with a federal district court to block Arkansas’ gender-affirming care ban. In that case, families of transgender youth sued on the grounds that Arkansas’ ban violated the 14th Amendment by discriminating on the basis of sex and transgender status, as well as the right to freedom of speech in the First Amendment.

Our rights shouldn't have to depend upon a bunch of judges. So place your bets how do you think the Supreme Court will rule?

 

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