In 2023, the American Civil Liberties Union joined forces with two families to challenge an Idaho law criminalizing gender-affirming medical care for transgender youth.[1] The two transgender teenagers in the lawsuit, identified as Pam Poe and Jane Doe because of their minor status, are both Idaho natives currently receiving the gender-affirming medical care which Idaho has criminalized.[2] Instead of preparing for college and spending time playing video games, listening to music, and going on walks, Jane is now fighting her state in federal court.[3] Jane’s own words on her journey as a transgender teenager:
It’s hard to overstate how impactful gender-affirming medical care has been for me. Before treatment, I was isolating myself, depressed, anxious, and I regularly felt trapped and scared. I could not see a future for myself. I am so grateful that when I told my parents about what I was experiencing, they listened to me, trusted me, and took me to providers who could give me the gender-affirming health care that I needed to be who I am.[4]
There are countless transgender teenagers and adults across the United States with similar experiences to Jane Doe, and the threat to their lives is very real.[5]
In the past few years, hundreds of bills have been introduced across the United States that target gender-affirming care for transgender youth, with twenty-six states passing bans that either fully or partially block access to this care.[6] Bans are currently blocked in Arkansas and Montana,[7] and there is pending litigation in thirteen states regarding healthcare bans for transgender youth.[8] As of August 2024, there are 118,300 transgender youth between the ages of thirteen and seventeen living in the twenty-six states that ban gender-affirming care.[9] The World Professional Association for Transgender Health notes that gender-affirming hormone therapy is a medically necessary intervention for transgender and gender diverse persons.[10] However, opponents of gender-affirming healthcare contend that children should be protected from societal pressure to undergo treatments that may have long-term negative side effects, which could be prevented if the use of these medications is put off until adulthood.[11] As the debate surrounding gender-affirming care accelerates, it is essential to understand the legal pathways to challenging these bans.
The Supreme Court’s decision in Dobbs fundamentally changed how courts analyze the Due Process Clause of the Fourteenth Amendment. Prior to Dobbs, the Court recognized the fundamental “right to privacy” through the “liberty” language of the Fourteenth Amendment.[12] The right to privacy extended to the right to marry, the right to use contraception, and, until Dobbs, the right to abortion.[13] In Dobbs, the Court emphasized that the decision “concerns the constitutional right to abortion and no other right,” and should not “be understood to cast doubt on precedents that do not concern abortion.”[14] Even with this promise from the Court, the Dobbs decision makes it nearly impossible to develop new fundamental rights to reflect societal changes. The Court’s new test for substantive due process only protects rights which are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”[15] The new “history and tradition” standard inherently eviscerates the development of new rights under substantive due process.[16]
For transgender youth in America, this means there are fewer ways to challenge bans on gender-affirming care. While the court has the barrier of precedent in overturning existing rights, no such limitation exists on new issues brought before the court. There is no precedent allowing transgender youth to prevail on claims for gender-affirming care through hormone therapy under a substantive due process right to privacy claim.[17] Prior to Dobbs, these claims could follow a similar framework as the reasoning in Roe v. Wade regarding liberty and bodily autonomy.[18] Both abortion bans and bans on gender-affirming care “seek to control . . . bodily autonomy,” and this kind of substantive due process challenge no longer fits neatly into a right to privacy claim after Dobbs’ new “history and tradition” test.[19] Before Dobbs, a right to privacy argument for gender-affirming care may have been successful,[20] but it will not be successful under a history and tradition test.[21]
Notwithstanding the door Dobbs closed, some relief might be found through another fundamental right under the Due Process Clause – the right of “parents and guardians to direct the upbringing and education of children under their control.”[22] Lower courts disagree as to whether the ability to allow hormone therapy for a child falls under this fundamental right. The Eleventh Circuit in Eknes-Tucker v. Governor rejected the argument that an Alabama ban on hormone therapy to treat gender dysphoria interfered with parental rights to control the healthcare of their child.[23] Relying on the history and tradition test from Dobbs, the Court concluded that there is no history of the use of puberty blocking medication to treat gender dysphoria.[24] Since the court found that no fundamental right existed, the restriction needed only to pass rational basis review, which the court concluded that it did.[25] Conversely, the U.S. District Court for the District of Idaho in Poe v. Labrador, also relying on the history and tradition test from Dobbs, found that “parents’ fundamental right to care for their children includes the right to choose a particular medical treatment, in consultation with their healthcare provider, that is generally available and accepted in the medical community.”[26] Although the argument against banning hormone therapy under this fundamental right is stronger than that under the right to privacy, there is still little hope that parental rights will be a widely successful argument. The question is – where does that leave these bans now?
One such ban from Tennessee has made its way to the Supreme Court, with oral argument scheduled for December.[27] The question in this case, United States v. Skrmetti, is whether Tennessee’s prohibition on gender-affirming medical treatment for minors violates the Equal Protection Clause of the Fourteenth Amendment.[28] With little hope of success under the Due Process Clause, the Equal Protection Clause seems to be the way forward for challenging these bans. The Tennessee law prohibits all medical treatments which allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”[29] The treatments banned by the Tennessee law are only banned when treating gender dysphoria but are permissible for other medical purposes.[30] The Department of Justice argued the law specifically classifies people on the basis of “sex and transgender status,” and therefore must satisfy heightened scrutiny.[31] The State of Tennessee countered, arguing that the law does not classify based on sex, but rather “draws lines based on age and the nature of the medical intervention.”[32] They also focus specifically on the differences between transgender and cisgender children, stating that “the law does not treat differently persons who are in all relevant respects alike based on their sex.”[33]
The Supreme Court’s decision in United States v. Skrmetti will largely shape the future of gender-affirming care for transgender minors, like Jane Doe in Idaho, for the foreseeable future. With more than half of states enacting some form of ban on gender-affirming care, a decision from the Supreme Court upholding the Tennessee law and finding no violation of the Equal Protection Clause would shut another door in the fight for transgender rights. The question then becomes, not whether these bans will harm transgender minors, but what will be the extent of that harm?
[1] Poe ex rel. Poe v. Labrador, 709 F. Supp. 3d 1169, 1194 (D. Idaho 2023).
[2] Poe v. Labrador, Am. C.L. Union, https://www.aclu.org/cases/poe-v-labrador (last updated Oct. 18, 2024).
[3] Id.
[4] A Teenager’s Fight Against Idaho’s Harmful Ban on Gender-Affirming Health Care, Am. C.L. Union (February 29, 2024), https://www.aclu.org/news/lgbtq-rights/a-teenagers-fight-against-idahos-harmful-ban-on-gender-affirming-healthcare#:~:text=All%20I%20Want%20is%20to%20Just%20Be%20a%20Teen&text=Despite%20my%20governor%20signing%20a,I%20am%20now%20living%20possible.
[5] See, e.g., Sean P. Madden, I’m the parent of a trans daughter. There’s nothing conservative about blocking her care, USA Today (June 24, 2024, 5:07 AM), https://www.usatoday.com/story/opinion/voices/2024/06/24/trans-kids-gender-affirming-care-parents-rights/74090131007/; Gender-Affirming Care Saved my Life. Everyone Should Have Access to It, Am. C.L. Union Indiana (Mar. 28, 2023, 4:30 PM), https://www.aclu-in.org/en/news/gender-affirming-care-saved-my-life-everyone-should-have-access-it#:~:text=The%20hormones%20didn’t%20change,attack%2C%20and%20start%20saving%20lives; Lacey Jennen, Gender-Affirming Care Gave My Daughter a Future. Lawmakers Want to Take it Away, Am. C.L. Union (Oct. 28, 2022), https://www.aclu.org/news/lgbtq-rights/gender-affirming-care-gave-my-daughter-a-future-lawmakers-want-to-take-it-away#:~:text=My%20oldest%20daughter%2C%20Sabrina%2C%20is,the%20life%20she%20has%20today; Gender affirmation services help patients live the lives they were seeking, UCLA Health (June 30, 2021),https://www.uclahealth.org/news/article/gender-affirmation-services-help-patients-live-the-lives-they-were-seeking.
[6] Map: Attacks on Gender Affirming Care by State, Hum. Rts. Campaign, https://www.hrc.org/resources/attacks-on-gender-affirming-care-by-state-map (last visited Oct. 27, 2024).
[7] See Federal Judge Overturns Arkansas’ Ban on Gender-Affirming Care for Transgender Youth, Am. C.L. Union (June 20, 2023, 4:33 PM), https://www.aclu.org/press-releases/federal-judge-overturns-arkansas-ban-on-gender-affirming-care-for-transgender-youth (“A federal district court judge has struck down and permanently enjoined an Arkansas law that aimed to ban gender-affirming care for transgender youth.”); Amy Beth Hanson, Montana judge temporarily blocks enforcement of law to ban gender-affirming medical care for minors, Associated Press (September 27, 2023, 2:53 PM), https://apnews.com/article/montana-youth-gender-affirming-care-ban-blocked-b042bea74b3f8e6be27e81572a771a8f.
[8] Map: Attacks on Gender Affirming Care by State, supra note 6.
[9] Id.
[10] The World Professional Association for Transgender Health, Standards of Care for the Health of Transgender and Gender Diverse People S110 (8th ed. 2022).
[11] See Taylor Penley, Florida families sue state alleging gender-affirming care ban for minors violates ‘equal protection’, Fox News (April 5, 2023, 11:00 AM), https://www.foxnews.com/media/florida-families-state-alleging-gender-affirming-care-ban-minors-violates-equal-protection.
[12] Thomas H. Burrell, Dobbs v. Jackson Women’s Health Organization: Revisiting the Fourteenth Amendment, Due Process of Law, and American Citizenship, 49 Ohio N. Univ. L. Rev. 259, 263-64 (2023).
[13] The Fourteenth Amendment Due Process Clause, Nat’l. Const. Ctr., https://constitutioncenter.org/the-constitution/amendments/amendment-xiv/clauses/701 (last visited Oct. 27, 2024).
[14] Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 290 (2022).
[15] Id. at 298.
[16] Emily Kaufman, On Liberty: From Due Process to Equal Protection—Dobbs’ Impact on the Transgender, 14 Univ. Miami Race & Social Justice L. Rev. 82, 110 (2024).
[17] See Paisley Currah, Inside the Legal Fight for Trans Rights, Bos. Rev., (Mar. 6, 2024), https://www.bostonreview.net/articles/inside-the-legal-fight-for-trans-rights/. There is a history of successful sex discrimination claims regarding transgender rights in the workplace, but even seemingly clear legal arguments present an uphill battle due to continued bias against transgender individuals and a lack of visibility around transgender rights.
[18] Id. at 92.
[19] Id. See also Arit John, How GOP efforts to restrict trans rights take a page from the antiabortion playbook,L.A. Times (June 7, 2023, 4:00 AM), https://www.latimes.com/politics/story/2023-06-07/wave-of-anti-trans-laws-reminds-advocates-of-another-struggle-abortion-rights (“Attacks on LGBTQIA+ people and attacks on abortion care are really inextricably linked . . . They’re both attacks on bodily autonomy and the right to take care of our own health, families and future.”).
[20] See, e.g., D.T. v. Christ, 522 F. Supp. 3d 888, 898 (D. Ariz. 2021) (denying defendant’s motion to dismiss and holding that plaintiffs have stated a proper claim in alleging that the fundamental right to privacy and autonomy through the Due Process Clause is violated when requiring a transgender individual to undergo a “sex change operation” in order to amend the person’s birth certificate).
[21] See Alejandra Caraballo, To protect gender-affirming care, we must learn from trans history, Harv. Pub. Health (June 21, 2023), https://harvardpublichealth.org/equity/to-protect-gender-affirming-care-we-must-learn-from-trans-history/ (explaining that the first clinic in the United States addressing treatment for transgender individuals did not open until 1966 and was closed in 1979 after societal backlash, with criticism of transgender healthcare increasing for the next several decades).
[22] Pierce v. Soc’y of Sisters, 28 U.S. 510, 534-535 (1925).
[23] Eknes-Tucker v. Governor, 80 F.4th 1205, 1225-26 (11th Cir. 2023).
[24] Id. at 1226.
[25] Id. at 1224.
[26] Poe ex rel. Poe v. Labrador, 709 F. Supp. 3d 1169, 1194 (D. Idaho 2023).
[27] United States v. Skrmetti, SCOTUSblog, https://www.scotusblog.com/case-files/cases/united-states-v-skrmetti/ (last visited Oct. 27, 2024).
[28] Id.
[29] Tenn. Code Ann. § 68-33-103(a)(1) (2023).
[30] Reply Brief for the Petitioner at 2, United States v. Skrmetti, No. 23-477 (filed Feb. 20, 2024).
[31] Id. at 1.
[32] Respondents’ Brief in Opposition at 21, United States v. Skrmetti, No. 23-477 (filed Feb. 2, 2024).
[33] Id. at 22.