“While Skrmetti is a landmark decision, our specific question remains,” West Virginia Attorney General JB McCuskey said last week.
Attorneys for Idaho also urged the justices to hear their case, arguing that simply sending it back down for a lower court to reconsider the challenge in light of the Skrmetti decision “is unlikely to accomplish anything but more harm to women and girls.”
“Whether designating sports teams based on biological sex violates the Equal Protection Clause is a critically important issue that has been roiling the lower courts, frustrating female student athletes, and confounding every level of government for years,” they wrote in court papers.
Research on trans people’s athletic performance is scarce, and there have been no large-scale scientific studies on the topic or on how hormone therapies may affect their performance in specific sport categories.
Chief Justice John Roberts’ opinion in Skrmetti made no mention of sports bans, which have been enacted in more than two dozen Republican-led states. But conservative Justice Amy Coney Barrett made clear in a concurring opinion that she’s against adding transgender status to the short list of personal identities like race and sex that receive special protection under the 14th Amendment. And she pointed to sports bans to argue that courts shouldn’t be over-policing decisions made by elected lawmakers.
“Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy — ranging from access to restrooms to eligibility for boys’ and girls’ sports teams,” she wrote in an opinion joined by Justice Clarence Thomas. “But legislatures have many valid reasons to make policy in these areas, and so long as a statute is a rational means of pursuing a legitimate end, the equal protection clause is satisfied.”
Justices could review other health care cases
While bans on gender-affirming care for minors have become a political lightning rod in recent years, other restrictions on access to health care for trans Americans have garnered less attention, including ones impacting adults.
Last year, North Carolina and West Virginia asked the high court to review an appeals court decision that deemed unlawful those states’ exclusion of coverage for gender-affirming care in insurance plans they sponsor. The Richmond, Virginia-based court held that the exclusions in both state plans violated the Equal Protection Clause.
When the states first asked the Supreme Court to step into the disputes, they pressed the court to take the cases up notwithstanding the justices’ announcement that they would hear the Tennessee case, which presented similar legal questions.
West Virginia, in particular, stressed the fact that the 4th US Circuit Court of Appeals also decided that its plan violated various federal laws, making the need for further review more necessary because the Skrmetti case dealt only with an alleged constitutional violation.
“Skrmetti did not address the statutory questions that the Fourth Circuit resolved against West Virginia. As for the equal-protection analysis, the level of scrutiny, the importance of a state’s interest, and the relative ‘fit’ between that interest and the state’s solution are different in the Medicaid context. So lower courts and States will still need more help after Skrmetti,” they wrote.
The court is also considering hearing an appeal over a challenge to a Kentucky law similar to the Tennessee ban.
There’s significant overlap between the two cases, but a key distinction lies in the fact that the challengers in the Kentucky case are asking the court to decide whether that state’s ban also violates a parent’s right to make medical decisions for their children.
During oral arguments in the Tennessee case last December, Barrett appeared interested in whether a ruling in the state’s favor would foreclose courts from considering any future challenge to the law based on the parental rights issue — signaling that there may be support on the bench for addressing that piece of the debate at a later time.
Karen Loewy, an attorney with the LGBTQ rights group Lambda Legal, said that while the court’s Skrmetti decision makes it harder for litigants to fight back against laws like Tennessee’s, the conservative majority was careful to “leave the door open” for other arguments to be considered by the justices in the remaining cases.
She cited both the parental rights issue and the court’s decision to not address whether the 2020 ruling had any application outside of the employment space.
“Those are all still tools and legal arguments that are very viable in challenging other kinds of discrimination,” Loewy said.
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