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    Will the Supreme Court Consider Trans Cases in 2024?

    By John Lewis and Stuart Gaffney–

    “Constant anxiety” as if she were “trapped” and “drowning”—those are the words that describe how a young transgender teenager known as L.W. felt a few years ago as her body began to undergo puberty contrary to her true gender. Another trans teen known as Ryan suffered such anxiety and distress under similar circumstances that he vomited every morning before going to school. A trans boy known as John, who was assigned female at birth, started to identify publicly as a boy at age four and began supportive psychotherapy even before he entered the second grade. He too felt extreme anxiety about the possibility of going through adolescence counter to his true gender.

    Fortunately, L.W., Ryan, and John all received life-saving gender affirming medical care with the support of their loving parents and under the care of experienced medical professionals, who are experts in the field of gender dysphoria. This care enabled the three of them to become happy and healthy teens.

    Dr. Susan Lacy

    But last year, the lives of these wonderful queer youth and those of their parents were thrown into utter disarray because they have the misfortune of living in the state of Tennessee, one of 21 conservative, Republican-controlled states that have banned gender-affirming medical care for transgender teens. L.W. described how she is now “terrified” about what could happen if she is prevented from obtaining this much-needed care. Ryan cannot imagine his life without it, and John explained how he “desperately hope[s] that doesn’t all get taken away.” 

    Late last year, L.W., Ryan, and John, along with their parents and Dr. Susan N. Lacy, a Tennessee physician who treats hundreds of transgender patients, asked the U.S. Supreme Court to stop the Tennessee law, known as SB1, from taking effect and to protect their constitutional right to health care in their home state. These extraordinarily brave queer youth, their parents, and Dr. Lacy challenged SB1 in federal court within weeks after its passage last spring. The district court ruled in their favor, but a divided panel of the Sixth Circuit Federal Court of Appeals reversed the decision and permitted the ban to go into effect, thus leading to the petition to the U.S. Supreme Court.

    In neighboring Kentucky, trans youth face similarly horrific circumstances because Kentucky passed a comparable blanket ban on gender-affirming medical care for trans teens last year as well. As in Tennessee, a group of courageous trans teens, known only as John or Jane Minor Doe, and their parents stood up and challenged the Kentucky ban in federal court. They too described the extraordinary emotional distress the teens experienced when their bodies began to change at the onset of puberty in ways that conflicted with their true gender, resulting in at least one of the plaintiffs becoming suicidal. Gender-affirming care was “lifesaving and life changing,” with the parents of one of the teens explaining that, with treatment, they had “never seen [their child] … as happy as he is now” and how the teen “cannot imagine his life without this medical treatment.”

    As in Tennessee, the Kentucky federal district court ruled in favor of the teens, but the Sixth Circuit appeals court consolidated the Tennessee and Kentucky cases and reversed the Kentucky decision along with the Tennessee one. The Kentucky plaintiffs have also asked the Supreme Court to hear their case.

    We do not know whether the U.S. Supreme Court will choose to hear the case. The decision whether or not to do so is up to the Court’s discretion; out of nine Justices, four votes are needed to take the case, although five votes are needed to win. Federal appellate and district courts that have heard other challenges to state bans on gender-affirming medical care have diverged in their rulings.

    Significantly, the Sixth Circuit panel decision is in conflict with an Eighth Circuit panel decision preventing Arkansas’ ban from taking effect, although the entire Eighth Circuit court has initially agreed to review the Arkansas law en banc. The Fourth Circuit upheld Alabama’s ban and an Oklahoma federal court upheld that state’s ban. However, district courts in Georgia, Indiana, and Florida have all enjoined those states’ bans.

    All of these conflicting court decisions may increase the likelihood that the U.S. Supreme Court will hear the Tennessee and Kentucky cases, but the Court could also want more federal appellate courts to weigh in before they issue a nationwide decision. Critical issues regarding trans teens’ right to life-saving medical care, parents’ rights to obtain medical care for their children, the protection of the parent-child relationship from baseless state interference, and the fundamental constitutional rights to equality for transgender and LGBTIQ people more broadly could all be at stake in these cases.

    The Supreme Court may announce early this year whether they will hear the Tennessee and Kentucky cases. Meanwhile, we stand as one community united in support and solidarity with the countless trans teens such as L.W., Ryan, John, and the Kentucky plaintiffs and their parents who simply seek fulfillment of the promise engraved atop the edifice of the Supreme Court: “Equal Justice Under Law.”

    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 11, 2024