Supreme Court Justice Sonia Sotomayor wrote a blistering dissent Wednesday condemning a Supreme Court that “abandons” transgender children to “political whims.”
It came as the high court moved to uphold Tennesee’s ban on gender-affirming care for trans minors.
In a major blow to transgender rights, trans youth statewide are now entirely prevented from seeking out hormone therapy and puberty blockers, which some teens say are crucial for aligning their physical development with their gender identity.
The 6-3 decision will further boost efforts from other rightwing state lawmakers to pass laws targeting transgender individuals, part of President Donald Trump’s campaign to end what he calls “gender ideology extremism.”
Sotomayor, one of the court’s three liberals and an Obama-appointee, made the rare move to read her dissent from the bench during the opinion announcement, which typically signifies a justice’s serious disagreement with the decision.
She said that the court had stepped back from “meaningful judicial review exactly where it matters most,” and that her colleagues abandon “transgender children and their families to political whims.”
About half of the nation’s states have similar bans to Tennessee’s. Two other states ban only gender-affirming surgeries, and six states have made it a felony for medical providers to administer gender-affirming care.
Federal courts have long contradicted each other on the legality of such bans, and the Tennessee case was the first to reach the Supreme Court. Now, the nation’s top justices have ruled that they will no longer intervene on similar bans. From now on, federal judges scrutinizing similar measures will do so under the lowest standard of judicial review, making it easier for conservative states to implement and uphold anti-trans policies.
Sotomayor argued that it was the Supreme Court’s role to prevent lawmakers from imposing “upon individuals the state’s views about how people of a particular sex (or race) should live or look or act.”
Her dissent was joined wholly by Justice Ketanji Brown Jackson and in part by Justice Elena Kagan.
“[The Court] authorizes, without second thought, untold harm to transgender children and the parents and families who love them,” she wrote, later adding: “In sadness, I dissent.”
The high court’s five conservative justices approved the ban, with the majority opinion penned by Chief Justice John Roberts, who was appointed by former President George Bush.
The decision hinged on whether the ban discriminated based on sex, which is forbidden under the 14th Amendment. The Biden administration told the Supreme Court that if some children assigned female at birth can access hormone therapy or puberty blockers due to certain medical conditions, but children assigned male at birth cannot, then it is “sex discrimination.”
Roberts disagreed. “This case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field,” he wrote. “The voices in these debates raise sincere concerns; the implications for all are profound. The Equal Protection Clause does not resolve these disagreements.”
At least 110,000 transgender youth already live in states that restrict or limit gender-affirming care, forcing them to travel elsewhere in search of services. Early interventions aim to alleviate gender dysphoria for transgender youth and preserve their mental health, and they have been endorsed by major medical groups like the American Medical Association, American Psychological Association, and the American Academy of Pediatrics.
In states that allow such treatments, most young trans people work with their parents and doctors over the course of several months or years to ensure that medical intervention is appropriate for them and would ultimately protect their wellbeing.
Trump has long taken aim at “transgender lunacy” and has launched a number of attacks on the trans community since taking office. His series of executive orders have been a substantial reversal of former President Joe Biden’s approach and an attempt to demonize anyone that doesn’t align with the “two unchangeable sexes.” In one order, Trump asserted that “medical professionals are maiming and sterilizing a growing number of impressionable children under the radical and false claim that adults can change a child’s sex.”
Trump has also barred transgender Americans from the military, barred nonbinary markers on U.S. passports, and moved to prevent transgender women from playing on women’s sports teams.
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