Activists protest outside the U.S. Supreme Court on Dec. 5, 2024, when the justices heard oral arguments in the Skrmetti case. (Washington Blade photo by Michael Key)
In a devastating loss for transgender youth and their families, the U.S. Supreme Court’s conservative supermajority on June 18 voted to uphold Tennessee’s law banning access to gender-affirming health care for minors in a 6-3 ruling that effectively shields similar restrictions in more than 20 other states.
Chase Strangio, a lead attorney for the plaintiffs in U.S. v. Skrmetti and the first trans lawyer to argue before the nation’s highest court, acknowledged the “setback” during a press call with reporters while stressing the need to “continue onward in the fight” because the avenues open to challenge laws like Tennessee’s Senate Bill 1 had not been fully extinguished.
Speaking with the Washington Blade on Monday, Professor Holning Lau of the University of North Carolina School of Law outlined the ramifications of the justices’ majority opinion and mapped out three ways in which cases aimed at striking down healthcare bans or other anti-trans policies and practices could play out in its wake.
An internationally recognized expert on equality rights, particularly in the contexts of sexuality, gender, and family life, Lau previously served as president of the ACLU of North Carolina’s board of directors and as a teaching fellow at UCLA’s Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy.
He is also the co-author of a recent paper that examines the exceptions to laws prohibiting medical interventions for gender transitions in minors that permit “so-called gender-normalizing surgeries, which are performed on intersex infants to conform their bodies to socially constructed expectations about the male/female binary.”
These carveouts, Lau and his colleague UNC Law School Associate Professor Barbara Fedders argue, cut against the reasoning cited by the lawmakers behind legislative restrictions targeting healthcare for trans youth like SB 1 and by the lawyers defending them in court.
Specifically, Lau told the Blade courts could interpret such “intersex exceptions” as evidence that gender affirming care bans were written with or are undergirded by sex stereotypes, unwarranted fears, and disgust — possible grounds to argue they should be struck down under the animus doctrine, which holds that government action motivated by hostility or prejudice towards a particular group is unconstitutional.
While there was some discussion of animus in the context of U.S. v. Skrmetti, notably in the concurring opinion by conservative Justice Amy Coney Barrett, the plaintiffs’ case focused primarily on “the sex discrimination argument because of Bostock v. Clayton County,” Lau said, referring to the 2020 Supreme Court case that determined sex-based discrimination in the context of employment, as defined by federal civil rights law, includes discriminatory conduct that is motivated by the victim’s sexual orientation or gender identity.
‘A huge, huge setback’
Five years after LGBTQ rights advocates were toasting their victory in the landmark case, which saw three of the conservatives on the High Court joining their liberal counterparts in a majority opinion written by Justice Neil Gorsuch, “a lot of folks may have reasonably thought that the logic of Bostock points towards this very straightforward sex discrimination argument,” Lau said, adding that liberal Justice Sonia Sotomayor “adopts that avenue of reasoning in her dissent” in Skrmetti.
“The way that the majority rejects the sex discrimination arguments in in the majority opinion of Skrmetti is not persuasive in my view,” he said. “I struggle for words to capture the reasoning of the majority opinion.”
Echoing Strangio’s remarks, Lau noted that Skrmetti “doesn’t completely close the door” to legal challenges but is nevertheless “a huge, huge setback.”
On the one hand, he said “lower courts might say that this was very much about the context of medical treatment and minors,” which means “there may still be cases that prevail having to do with transgender discrimination in other contexts, like the military ban or the restrictions on passports.”
At the same time, however, Lau cautioned that “you could also read this case as signaling more obstacles ahead, especially if a case gets back to the Supreme Court” since “three of the justices have already signaled in Skrmetti that they do not view gender identity discrimination as warranting heightened scrutiny.”
Litigation aside, young people and their families who will suffer the most direct and harmful consequences, namely the loss of access to medically necessary gender-affirming care, will have to navigate “a patchwork of state laws,” he said, which in many cases will mean relocating or traveling out of state for treatments that have been criminalized in the places where they live.
The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned the nationwide right to abortion, led to many of these same outcomes, he said. In an email following Monday’s phone interview, Lau further explained that “Dobbs unleashed conflicts between states, and there are signs that similar conflicts will arise with respect to gender-affirming care for trans youth.”
For example, he said “A growing number of states might seek to penalize interstate travel for gender-affirming care — targeting families who travel across state lines and/or medical providers who provide care to such families.”
“There is ongoing litigation concerning the constitutionality of interstate bans and shield laws in the abortion context, and those cases will bear significance on interstate bans and shield laws regarding gender-affirming care,” Lau said.
Counsel for the plaintiffs in Skrmetti probably turned to Bostock because the case was “the most recent victory, and the most on point when it comes to gender identity,” Lau said.
The animus doctrine was an important element of cases that expanded equal rights and protections for LGBTQ people, he said, pointing to U.S. v. Windsor (2013), which struck down portions of the Defense of Marriage Act, a law that prohibited the federal government from recognizing same-sex marriages, and Romer v. Evans (1996) which struck down a Colorado statute prohibiting the state from enacting any LGBTQ inclusive nondiscrimination rules.
Lau said those cases are examples of where the Supreme Court has found indirect evidence of impermissible animus in the laws under consideration by the way they were designed or structured, as opposed to more direct evidence like overt expressions of sex stereotypes, fear, and disgust toward a particular group that might arise during the legislative process.
These cases and the animus doctrine, Lau added, are closely associated with the late former Justice Anthony Kennedy, an appointee of President Ronald Reagan who was the “swing vote” responsible for ultimately deciding many of cases considered by the Roberts court where the justices were split 5-4.
Following his retirement in 2018 and the emergence of a 6-3 conservative majority, there is less certainty about how the justices might evaluate animus related arguments in the context of disputes over issues of gay or transgender rights, Lau said, especially relative to how they were expected to look at the reasoning central to the Bostock decision just five years ago.
“I would have liked to see more” engagement with animus in the Skrmetti opinions, Lau said. Barrett in her concurrence did address the question, writing that there was a rational basis for Tennessee legislators’ SB 1, in contrast with the court’s findings in Romer, where the “sheer breadth” of law was “so discontinuous with the reasons offered for it that the [law] seem[ed] inexplicable by anything but animus toward the class it affect[ed]”.)
“To be sure, an individual law ‘inexplicable by anything but animus’ is unconstitutional,” Barrett said. “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.”
Lau said that notwithstanding her position on Skrmetti, the fact that Barrett “did make reference to the animus jurisprudence suggests that there is potentially a future for animus doctrine, even in the post-Kennedy Supreme Court.”
Rather than the animus doctrine or Bostock’s reasoning that gender identity discrimination constitutes sex based discrimination, the court relied on Geduldig v. Aiello (1974), Lau said, which found that pregnancy discrimination “is not a type of sex discrimination” and remains a case that “strikes so many people as being incorrectly decided.”
“Whenever I teach Geduldig v. Aiello, my students are shocked by the court’s reasoning,” he said, “and it’s so formalistic in its reasoning that it’s so divorced from people’s lived experiences.”
The same can be said for the majority opinion and concurrences in Skrmetti, Lau said, where the justices said “that even if transgender kids are the only ones seeking treatment for gender dysphoria, not all transgender kids are seeking this treatment, and kids can still get the treatment if they have a different type of diagnosis” such as any of the conditions delineated in the exceptions that were written into SB 1 and similar laws in other states.
“One day, I imagine teaching [Skrmetti] and my students will be, likewise, shocked at the Court’s exceedingly formalistic reasoning,” he added.
Legal challenges to anti-trans healthcare bans in a post-Skrmetti world
After Skrmetti, Lau said he expects to see cases challenging bans and restrictions on healthcare for trans youth that are based on state constitutional claims, noting “a case where there was a recent victory in Montana based on Montana’s constitution,” a win that came despite the fact that it was decided in a place that “might not strike you as particularly hospitable to transgender rights.”
“The state constitutional law claims are particularly promising,” he said, “but it’ll be very context specific,” with the cases ultimately turning on the language contained in these different constitutions and “what sort of jurisprudence we have in each particular state.”
Per Lambda Legal, “On Dec. 11, 2024, the Montana Supreme Court upheld a preliminary injunction that (Senate Bill) 99 was likely unconstitutional under the Montana state constitution’s privacy clause, which prohibits government intrusion on private medical decisions. The ruling rested entirely on state constitutional grounds, insulating transgender adolescents, their families and health care providers from any potential negative outcome at the U.S. Supreme Court.”
Lau said the remaining two primary avenues for challenging anti-trans healthcare restrictions are likely to be animus based claims and cases grounded in arguments about parental rights, a phrase that often crops up in the context of efforts to undermine rather than strengthen freedoms and protections for LGBTQ people.
The reasoning was cited in a 2023 decision by a federal judge in Idaho who temporarily struck down the state’s ban on gender affirming care for kids, writing: “Transgender children should receive equal treatment under the law … Parents should have the right to make the most fundamental decisions about how to care for their children.”
Asked whether he believes jurists will consider parental rights or animus the more persuasive argument, Lau demurred, telling the Blade “I would be hesitant to say which one is more promising,” noting that animus claims often turn on very specific evidence that might show for example that the lawmakers behind a ban or restriction on transgender medicine were driven by sex stereotypes, irrational fear, or disgust toward a particular group.
Animus and the intersex exceptions
Asked whether anti-trans legislators are being counseled to avoid overt expressions of anti-trans sentiment or prejudice for fear that they might provide grounds for a successful legal challenge against their gender affirming care bans, he said “I think that’s very possible,” adding that “legislators are savvier now in terms of concealing their motives and their biases.”
“Philosopher Martha Nussbaum was monumental and unpacking disgust as an element of animus,” Lau said. “And so in my article, I try to unpack it to help readers connect the dots that there is this visceral disgust towards both intersex children and transgender minors, and that that can be connected to the doctrine of animus.”
In their paper, Lau and Fedders focused on the potential for courts to find inferred animus in laws like Tennessee’s SB 1 based on how they are structured, with sweeping restrictions on the one hand coupled with exceptions on the other that would allow families to pursue medical interventions for their children only when they have certain conditions or diagnoses.
“If we couple that with evidence from the legislative record” pointing to animus “there may be a case to be made,” Lau said.
Both the opinions in Skrmetti and the language of the SB 1 statute address how the law allows otherwise prohibited treatments or interventions to be administered to minors when they are indicated for diagnoses other than gender dysphoria or used for purposes other than gender transitions.
“They don’t call them intersex exceptions,” Lau said, but rather “exceptions for congenital defects,” defined as “including DSDs, disorders in sexual development — or what many intersex advocates would now refer to as ‘differences’ in sexual development.”
Interact, an intersex rights organization, “filed an amicus brief in Skrmetti that dovetailed with my article in that they argued the intersex exceptions support the idea that there are sex stereotypes that undergird the gender affirming care bans,” he said.
“I would like to see more discussion of the interplay between transgender rights and intersex rights,” Lau added, noting how questions about intersex vis-a-vis trans identities are relevant beyond the context of healthcare restrictions. For instance, he pointed to the Trump-Vance administration’s directive for the State Department to not allow passport holders to have the gender markers on their documents changed to align with their gender identity, also removing the option to select ‘X’ rather than the male/female binary category.
The restrictions on passports not only affect trans folks, but also nonbinary and intersex folks as well. And with respect to the bans on gender affirming care, not only do they restrict trans youth’s access gender affirming care, but they reflect and reinforce this understanding of intersex conditions that is very harmful and damaging to intersex youth.
“The restrictions on passports not only affect transgender folks, but also non-binary and intersex folks as well,” Lau said. “And with respect to the bans on gender affirming care, not only do they restrict transgender youth’s access to gender affirming care, but they reflect and reinforce this understanding of intersex conditions that is very harmful and damaging to intersex youth.”
The National LGBT Media Association represents 13 legacy publications in major markets across the country with a collective readership of more than 400K in print and more than 1 million + online. Learn more here: NationalLGBTMediaAssociation.com.
