On its face, the U.S. Supreme Court’s decision to hear a challenge by the Biden administration to Tennessee’s ban on transition care for transgender minors looks like the kind of case that the high court is meant to resolve.
Different lower federal courts have reached differing conclusions about similar laws—sometimes allowing the bans and sometimes overturning them—and resolving a split among the circuit court of appeals is one reason why certiorari is granted. Indeed, to some legal experts it was all but pre-ordained: “The Supreme Court was always going to have resolve how state bans on gender-affirming medical care can be reconciled with its approach to sex-based discrimination,” Steve Vladeck, a professor at the University of Texas School of Law and CNN analyst, told the network Monday.
But appearances can be deceiving.
Until now the justices have steered clear of wading into the quagmire of transgender issues, refusing to take on how different states handle questions of what bathrooms can be used by transgender students and who can play sports on which teams. While they did allow an Idaho ban against transgender treatment to stand, that case was decided not on the merits but only about whether a federal trial court could enjoin the law from taking effect as the case continued to be litigated at the lower court level.
The Idaho case—on the court’s emergency docket—spewed forth an array of dissents and concurrences mostly focusing on to what extent lone federal courts can issue injunctions that affect more than just the parties before them, the so-called “universal injunction” issue. In this sense, the Idaho case was more of a side-show on a topic which is a pet-peeve for some justices like Justice Neil Gorsuch, who revealed his irritation at lowly trial court judges trying “to govern an entire state or even the whole nation from their courtrooms.”
Presumably, in Gorsuch’s view, only Supreme Court justices are allowed to govern the nation from their courtroom. But this only tangential interaction with the merits of the Idaho transition-care ban and the avoidance of previous transgender issues shows the justices know how to stay out when they wish to stay out.
According to the Human Rights Campaign, nearly half of the states have now enacted bans on this type of medical treatment, which means that some 39 percent of transgender youth live in states that ban their access to this type of health care. This trend is dangerous and unfair to these youth and reflects the success of the right’s efforts to attack LGBTQ+ Americans by any means possible.
But the Supreme Court is unlikely to offer any relief to these biased and hate-based efforts to return the United States to some Christian nationalist fantasy of a country where no LGBTQ+ issues or people exist.
The new ultra-conservative majority of the court—the bountiful harvest produced by decades of Federalist Society cultivation—now has the power to realize both the bitter-old-men dreams of Justice Samuel Alito and Clarence Thomas as well the Young Turk ambitions of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
The overturning of a half-century of protection for women’s health in the Dobbs case which overruled Roe exemplifies that power. At its heart, Dobbs is an attack on the constitutional right to privacy, which was the foundation for Roe v. Wade. And the destruction of Roe protections opened the floodgates for attacking an unlimited number of protections for women and LGBTQ+ people through the vehicle of medicine and health care.
After all, Roe v. Wade simply upheld a medical procedure and its overturning served notice that SCOTUS did not have to listen to doctors about health care issues.
Under the rationale of Dobbs (returning the question of abortion to the states), the justices could have let the same result happen for transgender health care.
Although such a hodge-podge of laws would hurt patient care, it would be consistent with a supposed conservative view that such issues should be left up to the states, not federal courts. But that is not really the truth of conservative views, or the views of the justices. Rather, the justices believe themselves to be qualified to second-guess the standards of medical care now given to transgender youth under the guise of deciding “constitutional” questions.
Moreover, the prissy sensibilities of the elitist justices are likely more comfortable with deciding “health care” issues than bathroom issues.
When the case is heard next term, there will likely be a veritable town hall of right-wing legal theories being argued, discussed, and ultimately expressed through what will be a dizzying array of concurrences and dissents. It will be an opportunity for the old-school justices like Clarence Thomas to reference the absence of the LGBQT+ issues in the Constitution and/or for Alito to speculate about what his 17th century witch-hunting idol Matthew Hale would have said about transgender medical care. And it will be an opportunity for the liberal justices to voice their likely futile concern over the protection of transgender youth.
It’s tempting to say that America and transgender youth would be better served if the case wasn’t heard at all, because that would at least avoid the outcome of anti-LGBQT+ hate becoming enshrined in constitutional precedent. But the seeds of this fight were planted decades ago and denying certiorari would be only a temporary panacea.
The real solution is a political one—both to push back against the deep hate and biases that underlie the policies espoused by the extreme right as well as a complete redo of the U.S. Supreme Court, involving both its size and its ethics.
Until that time comes, we are stuck with this court and having to listen to its fake machinations of constitutional interpretation hiding a powerful religious and social agenda.
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