Cases involving transgender rights are piling up before the Supreme Court as it begins drafting its opinion on them States can ban gender-affirming care for minors.
The justices have heard petitions in their recent closed conferences to address disputes over which school sports teams transgender athletes can play on, what parents’ rights are and whether government-funded health plans cover transgender care must.
Two judges appointed by President-elect Trump made a point to bring up the battles ahead during oral arguments this month in the blockbuster gender-affirming care case.
“If you prevail on the evaluation standard here, what would that mean for women’s and girls’ sports in particular?” asked Judge Brett Kavanaugh.
Kavanaugh kept returning to the question — until Judge Amy Coney Barrett beat him to it as the last attorney took the podium.
“Could you address Judge Kavanaugh’s questions about what impact this case would have on the sports context or the bathroom context?” she pressed.
The lawyers insisted that these cases were legally different.
“We would have no objection to explicit language stating that this decision in no way affects individual state interests there or should be understood as having to be judged on their own terms,” said U.S. Attorney General Elizabeth Prelogar.
However, the court appears to have concluded that there is so much overlap that most petitions should be put on hold until the current dispute over whether Tennessee’s ban on gender-specific care of minors constitutes unconstitutional gender discrimination. The decision, expected this summer, will impact similar laws passed in half the country.
Last month, at two consecutive conferences, the justices considered whether to accept appeals from Idaho and West Virginia defend their prohibitions about transgender girls competing on women’s school sports teams.
Court records show the justices took no action and did not bring the petitions back up for discussion at any of their December conferences, effectively leaving the cases in limbo indefinitely. Although the court did not provide an explanation, this pattern typically occurs when the justices have decided to hold a petition pending the decision of a current case.
The American Civil Liberties Union (ACLU) did not object to the move. The group represents both the transgender youth currently challenging Tennessee’s gender-affirming childcare ban in the Supreme Court and the students who have sued over bans on transgender athletes in West Virginia and Idaho.
“In this case, there is no basis for a grant to answer the same question,” the ACLU wrote in court filings.
Both West Virginia and Idaho unsuccessfully warned the Supreme Court not to wait.
“A suspension would further delay the resolution of these important matters – for at least a year or, in the case of subsequent remand, for three years – and cause significant lasting harm to female athletes,” the West Virginia Attorney General’s Office wrote in court filings.
The Idaho Attorney General’s Office also wrote: “There is no better time than now to protect women and girls on the competition field and in the locker room.”
A similar animated has emerged in the dispute over West Virginia and North Carolina’s refusal to cover certain care for transgender people through government-sponsored health insurance.
The states asked the judges to consider their appeal after a defeat in a lower court.
Two days after the gender-affirming care argument, the Supreme Court considered the petitions at its weekly conference on December 6. The cases were then placed in abeyance.
The judges are now on vacation and will not return until January.
In the meantime, written briefing continues for other petitions related to transgender protections. They, too, will soon go to judges’ conferences to decide whether to accept the cases.
Opponents of Alabama’s ban on gender-affirming care filed a petition with the Supreme Court just before Thanksgiving.
In Arizona, state lawmakers have petitioned the Supreme Court to revive the ban on transgender athletes. The lawmakers are represented by D. John Sauer, President-elect Trump’s nominee for U.S. attorney general. Two transgender girls challenging the law have until Monday to answer why the justices shouldn’t take the case.
Meanwhile, Alliance Defending Freedom, a conservative Christian legal group, is representing a professional counselor challenging Colorado’s ban on treatments aimed at changing a person’s sexual orientation or gender identity. Twelve Republican-led states support the counsel’s appointment to the Supreme Court.
However, it remains unclear whether the judges have any desire to get involved in the sensitive cases.
The court earlier this year declined an opportunity to examine whether schools can ban transgender students from using restrooms that match their gender identity in an Indiana case.
And this month, justices declined to hear an appeal from a group of Wisconsin parents who had sued their children’s school district over a lawsuit Policies to Support Transgender Students. A lower court did not rule on the merits of the parents’ lawsuit after finding they lacked legal standing to proceed.
Three conservative justices — Samuel Alito, Clarence Thomas and Kavanaugh — said they had heard the case. But four votes are required for this.
“I am concerned that some federal courts are succumbing to the temptation to use the Article III doctrine to avoid some particularly contentious constitutional questions,” Alito wrote in his dissent.
