The Supreme Court’s Next Attack on Medical Decision-Making
In the two years since the Supreme Court’s Dobbs decision overturning Roe v. Wade, there have been huge health care consequences in the states that have banned abortion. Many pregnant patients are facing permanent harm and even death because of the care they are denied as a result of abortion bans. This upcoming term, the Supreme Court is poised in the name of conservative extremism to do even more damage to our ability to make decisions with our own doctors — and like in Dobbs, the Court might gut one of its own precedents in the process.
The case to watch is U.S. v. Skrmetti, which involves a challenge to a Tennessee law known as Senate Bill 1. S.B. 1 imposes an outright ban on gender affirming care for transgender youth. This ban has no exceptions, violates the guidance of every major medical organization in the country and creates hopeless situations for families seeking such care. Nevertheless, two Republican-appointed judges on the 6th U.S. Circuit Court of Appeals held that such bans do not intrude on anyone’s rights, citing Dobbs in their justification.
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One might be inclined to hope that this Supreme Court, even with its conservative supermajority, might protect transgender people from discrimination. After all, it did just that in 2020’s Bostock v. Clayton County, ruling that discriminating against trans workers requires discriminating on the basis of “sex” and thus violates Title VII’s employment protections. But that was when Justice Ruth Bader Ginsburg was still on the bench to join Justice Neil Gorsuch and the remaining liberals to create a majority.
This summer, we saw the difference a single justice can make. In the wake of Bostock, the Biden administration developed new guidance to update Title IX to make sure that its protections on the basis of “sex” in education matched what Bostock required of Title VII. Unsurprisingly, conservative states challenged these LGBTQ+-inclusive protections, and when faced with the decision of whether to let the guidance take effect, the Supreme Court blocked it. As expected, Gorsuch joined the liberals in objecting, but they no longer had a majority.
Tennessee’s S.B.1 and laws like it obviously target transgender people based on sex. As a group of doctors who provide gender affirming care note in an amicus brief, many cisgender (nontransgender) youth also receive gender-affirming care for conditions like Gynecomastia (increased breast tissue) in cis boys and Hirsutism (growth of coarse male-pattern body hair) in cis girls. The law bans similar treatments only for trans youth and thus targets them based on their biological sex. The 6th Circuit denied this in its illogical ruling, and there’s no reason to believe Bostock would stop the Supreme Court from doing the same.
No one should be denied the opportunity to live as their authentic selves or to access the health care required to do so.
The consequences of this would be devastating for the transgender youth — and increasingly adults — facing such bans on medically necessary care in dozens of states. Essentially, these laws force transgender youth to endure the distress of dysphoria while allowing cisgender youth who experience similar distress to access the same gender affirming treatments. But such an intrusion into the health care decision-making process would have implications far beyond transgender people and their families.
Post-Dobbs, we have already seen doctors across the country being put in the impossible position of having to decide whether to provide the best care for their patients or follow the law. Faced with this question in regards to Idaho’s abortion ban, the Court punted. Skrmetti once again invites the Court to rule on whether your doctor can or cannot provide you with the care you both agree you need and deserve. As the American Psychological Association and other mental health organizations note, such laws force doctors to consider even violating their own ethical codes.
Laws like S.B.1 are also one of the most extreme intrusions on medical care. In an amicus brief from a collection of states (and Washington, D.C.) that are opposed to such bans, they point out that banning forms of care — as opposed to just regulating certain forms of care — is “extremely rare” among state policies. Opioids, they note, pose major known risks to patients (unlike trans-affirming care), but states still don’t go so far as to ban them because of benefits they can still provide. If the Court says it’s okay to target transgender people by banning such care even when it’s what medical professionals recommend, what could possibly stop any other arbitrary medical bans a legislature might be inclined to pass?
Bans on transgender care clearly target the trans community with discriminatory intent. No one should be denied the opportunity to live as their authentic selves or to access the health care required to do so. Like abortion, gender affirming care can quite literally save lives. But we need to recognize these bans have implications for everyone, just as abortion bans have impacted far more people than those seeking abortions. If this Supreme Court once again prioritizes a conservative agenda over the health of this nation, there’s no telling how many lives might be on the line.
Keith Thirion is the interim co-president and vice president of strategy at Alliance for Justice. As a contributor to Democracy Docket, Thirion writes about the U.S. Supreme Court, judicial reform and the importance of state courts.