Gender affirming care bans continue, for now

Justice Sotomayor's dissent topples the reasoning of the majority

On June 2nd I kicked off a countdown to my books publication (TOMORROW) with an explanation of U.S. v Skrmetti, a Supreme Court case that considered the fate of gender affirming care for minors living in Tennessee. SCOTUS handed down that decision today. In a vote of 6-3 the justices upheld the Tennessee law that prevents trans minors from accessing healthcare considered best practice by:

The American Medical Association

The American Academy of Pediatrics

The American Psychiatric Association

The American Psychological Association

The American Child and Adolescent Psychology Association

to name a few.

While this is a setback, it is also a time to be grateful for the states, like California, where this care is still available, and double down on efforts to support these laws and the the transgender community generally.

It is worth noting that according to James Essex, spokesperson for the ACLU, this decision is a narrow one and only applies to the state of Tennessee (in future posts I will confirm this, as I do believe this decision will impact other states, I’m just not sure how yet). In addition, it is not a mandate for states that support gender affirming care for minors to deny that care.

At issue in this case was whether or not the law required heightened scrutiny in judicial review based on the fact that gender affirming care bans are by de facto sex discrimination.

A quote from her dissent:

“Consider a mother who contacts a Tennessee doctor, concerned that her adolescent child has begun growing unwanted facial hair. This hair growth, the mother reports, has spurred significant distress because it makes her child look unduly masculine [as can happen in teenage girls with PCOS]. The doctor’s next step depends on the adolescent’s sex. If the patient was identified as female at birth SB1 [the Tennessee law in question] allows the physician to alleviate her distress with testosterone suppressants. What if the adolescent was identified male at birth, however? SB1 precludes the patient from receiving the same medicine.”

The majority however, made the argument that the law did NOT command heightened scrutiny in judicial review, because in their logic, no child of any sex would have access to gender affirming care. The same logic has been used to make the case that IVF, for example, is not gender based health care and so does not rise to the level of heightened judicial scrutiny.

If you were in my ConLaw class at Andover and your heart belongs to Tom Lyons, you can read the decision and the dissent for yourself here (Sotomayor’s dissent is toward the end).

At the same time, and I will be writing about this more soon, a Federal Judge in Massachusetts has blocked the Trump policy of refusing to issue passports that align with people’s affirmed gender. Needless to say, I’m planning a trip to the passport office STAT.

Well, tomorrow is my book’s Birthday, and while the news is mixed, I feel more certain than ever that our family’s story will help others. To the families who live in states with gender affirming care bans, we see you, we support you, we’re here to help and will be in conversation with you over the next few months about how to get you the help you need.

*****

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See you tomorrow! XOXO