The US Supreme Court ruled yesterday that Idaho can go ahead and enforce its ban on gender-affirming care for transgender minors. It’s the first time the Court has addressed the many, many bans states have passed to bar treatment that is recommended by the vast majority of American medical, psychological, and pediatric associations, although why would that matter to the six rightwing ideologues on the Court majority? They don’t worry about what medical experts today say; they’re far more interested in the thoughts of 17th-century jurists who presided over witch trials.
The ruling only addresses the question of whether the ban could go into place while the case is litigated, not the merits of the case, so the witch-finders’ opinions didn’t come into play this time. The order exempted the two trans Idaho teens who sued Idaho (Washington Post guest link), but all other trans youth in Idaho will now be barred from gender-affirming care including puberty blockers, hormone therapy, and surgical procedures, although in reality most trans folks don’t seek surgery until after the age of 18 anyway.
The adjoining free states of Oregon and Washington both have trans healthcare “shield” laws that protect the rights of patients to get gender-affirming care, so that should be of help to families who are able to travel for treatment. Idaho hasn’t yet tried to ban residents from leaving the state for gender-affirming care; the state notoriously passed a law criminalizing helping minors leave the state for abortion care, but a federal court put that travel ban on hold in November.
Idaho’s trans healthcare ban was blocked by a federal judge in December, and the Ninth Circuit Court of Appeals upheld that ruling. But then Idaho appealed to the Supremes, asking that the ban be allowed to go forward statewide except for the two plaintiffs in the case, since it’s not a class action. Idaho Attorney General Raul Labrador argued in a court filing that the plaintiffs wouldn’t be harmed even if all the other trans teens in Idaho were, so why not let the state do what it wants?
As the Post explains, that was good enough for the Supremes:
“The plaintiffs face no harm from the partial stay the State requests,” wrote Justice Neil M. Gorsuch, who was joined by Justices Clarence Thomas and Samuel A. Alito Jr. “Even with it, the district court’s preliminary injunction will operate to prevent state authorities from taking any action to interfere with their ability to access the particular drug treatments they seek.”
Brett Kavanaugh and Amy Coney Barrett wrote a separate opinion allowing the law to go forward while it’s argued in court.
The attorneys for the plaintiffs had argue that the two trans girls would be outed by exempting them from the decision. Since the law sends anyone providing gender affirming care to prison for up to 10 years, the girls would only be able to get care if they explained they have that exemption every time they see a doctor or pick up a prescription.
Incidentally, that 10-year prison sentence suggests Idaho’s Legislature somehow hates providers of gender-affirming care even more than it hates abortion providers. The penalty for providing abortion care is only two to five years.
Writing in dissent, Justice Ketanji Brown Jackson said the Supremes should stop “micromanaging” lower court decisions, as if that would be any fun. That dissent was joined by the Court’s other two sane justices, Elena Kagan and Sonia Sotomayor.
Jackson also cautioned that the Court should for once give some thought to the people whose lives will be affected by its decisions, noting that gender-affirming care for trans minors is “a serious and consequential matter, which, indeed, raises the profile of this case and the stakes of our intervention, for the law at issue here will have a significant practical impact on everyone it affects.”
The Post explains that, unlike other federal cases that have focused on the constitutionality of banning care for trans patients that is available to cisgender patients, the arguments in this case focused much more narrowly on whether the two plaintiffs should be able to seek an injunction blocking Idaho’s ban from affecting all trans youth in Idaho. The state argued that nah, the plaintiffs are only affected by part of the law because they’re only taking estrogen, not puberty blockers or testosterone, and they aren’t seeking surgery either. After all, Idaho’s argument went, the law bans more than 20 other medications and procedures, so why are you people so selfish and trying to stop us from enforcing it just because you’re using one?
So far, the Court hasn’t agreed to hear any of the challenges against the more than 20 state bans on gender-affirming care. That’s mostly because so far, the only two cases that have made it all the way through federal appeals courts, in Kentucky and Tennessee, have both upheld the bans, although the ACLU and Lambda Legal have both asked the Court to hear appeals in those cases.
But the Ninth Circuit is more liberal, so it might well overturn Idaho’s law, which would create a conflict with the other appeals courts that the Supremes would have to resolve. Maybe by the time it gets to that level, God Almighty will have grown sick and tired of Sam Alito and Clarence Thomas, or a surprisingly huge blue wave in this fall’s election will have given Congress the numbers needed to add more members to the Court; we are just spitballing here.
In the meantime, Oregon and Washington remain safe havens for trans and abortion rights, and the freeways are open.
PREVIOUSLY.
[WaPo (gift link)]
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