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    Transgender Rights at the Supreme Court

    By John Lewis and Stuart Gaffney–

    Two weeks ago, we reported on brave trans youth, their parents, and a physician who are asking the U.S. Supreme Court to hear their challenges to Tennessee and Kentucky’s bans on trans teens receiving lifesaving gender affirming medical care. Similar laws are on the books in 19 other conservative Republican-controlled states, and the U.S. Supreme Court could decide soon whether or not to hear the Tennessee and Kentucky cases.

    We consider these cases to be of utmost importance because of the sheer cruelty of these laws that intentionally target and exploit vulnerable trans youth for partisan political gain. Moreover, the cases could also have enormous impact on the constitutional rights not only of transgender people, but also of all LGBTIQ people. That’s because the cases could decide more broadly the legal standard courts apply to determine whether a law that discriminates against transgender people violates the U.S. Constitution. And that decision could, in turn, greatly affect the standard that applies to laws that discriminate in myriad other possible ways against LGBTIQ people.

    For this issue of the Bay Times, we discuss one of a number of powerful arguments our community is making before the Court—that discrimination against transgender people is a form of unlawful sex discrimination that the Constitution proscribes. Well-established Supreme Court precedent holds that a government’s differential treatment of a person based on sex is unconstitutional unless the government can provide an “exceedingly persuasive justification” for it. The same standard should apply to discrimination against LGBTIQ people because discrimination based on gender identity and sexual orientation are indeed forms of sex discrimination.

    Tennessee and Kentucky’s bans on trans youth receiving gender affirming medical care are textbook cases of sex discrimination. Under Tennessee and Kentucky law, a cisgender teenager who was identified as female at birth, but has delayed onset puberty, may receive hormone treatments to assist her in the process of developing into her gender identity as female. However, a transgender teenager who was identified as male at birth but has gender dysphoria and whose true gender is female is prohibited from receiving hormone treatments that would enable her to develop according to her gender identity as female. This is sex discrimination, pure and simple. The person identified as female at birth is entitled to medical treatment, but the person identified as male at birth is not.

    The Supreme Court applied parallel logic in its landmark Bostock decision, holding that employment discrimination based on gender identity or sexual orientation is unlawful sex discrimination in violation of Title VII of the federal Civil Rights Act of 1964. The Court considered “an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female.” The Court reasoned that “[i]f the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”

    The Court made clear that “the individual employee’s sex plays an unmistakable and impermissible role” in the employer’s decision. A teenager’s sex plays an equally unmistakable and impermissible role in Tennessee and Kentucky’s laws that permit teens who identify as female at birth to receive gender affirming medical treatments to develop as females, but deny trans teens who identify as male at birth to receive gender affirming care to develop according to their gender identity as female. Indeed, the Supreme Court in Bostock went so far as to say that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” This standard should apply not just to Title VII, which is a federal statute, but to equal protection under the U.S. Constitution as well.

    Further, there’s no credible justification for this differential treatment, much less an “exceedingly persuasive” one. Consider how leading medical institutions advise teens and parents about medical treatment for cisgendered teens with delayed puberty. A Massachusetts General Hospital webpage informing parents about delayed puberty for cisgender boys states that the hospital provides treatment “if your son is bothered by his lack of pubertal signs.” Vanderbilt University children’s hospital, located in Nashville, Tennessee, recognizes that “[d]elayed puberty can cause embarrassment and stress for adolescents” and that some adolescents “will need treatment with hormones.” 

    As we described in detail two weeks ago, countless trans teens who do not receive gender affirming medical care suffer severe depression and anxiety, and are at high risk for self-harm or suicidal ideation. If being bothered or embarrassed is a basis for cisgender teens to receive medical care, which we do not question, there should be no question that trans teens whose very lives are at risk should be entitled to receive the lifesaving care they, their parents, and their medical providers all agree they need.

    Last week, the Supreme Court declined to consider a federal appeals court order blocking an Indiana law that prohibits trans students from using the bathroom that corresponds to their gender identity. Although that decision is good news, we cannot infer from it whether the Court will take the Tennessee and Kentucky cases. In future weeks, we’ll continue to report on these cases and the critical issues at stake in them for trans youth and the entire LGBTIQ community.  

    John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.

    6/26 and Beyond
    Published on January 25, 2024