Analysis by Julia Stronks | FāVS News
On June 18 the U.S. Supreme Court ruled that a state law in Tennessee was constitutional because it met the appropriate test of scrutiny applied to laws that distinguish between and among people for different reasons. This case is being described as hostile to transgender rights because the law in play limited the kind of medical care transgender minors may access in Tennessee. But it’s important to understand exactly what the court did and did not do because that illuminates paths remaining for those committed to LGBTQ justice.
In 2023 the state of Tennessee passed a law that prohibits healthcare professionals from providing medical services that help minors identify with anything other than their biological sex. The Supreme Court said that the law was directed at people of a certain age and people who wanted a certain procedure. It was not directed at people because of their sex, and so it was not sex discrimination.
What the court did not do
The court did not say that it is legal to discriminate against the trans community. Rather, the court affirmed a system of “scrutiny” that is normally applied to laws that discriminate. For the last century the court’s analysis developing our understanding of the 14th Amendment’s equal protection clause has divided laws that discriminate into different categories. Those that discriminate on the basis of race receive the highest level of scrutiny and are often struck down as unconstitutional. Those that discriminate on the basis of sex receive an intermediate level of scrutiny, and those that discriminate in a wide variety of different ways receive a low level of scrutiny called “rational basis.”
The majority decision said that Tennessee’s law was not about sex or gender — rather it was about a patient’s age and medical procedures. Therefore, it should receive a low level of scrutiny as the appellate court had held. The majority affirmed the ruling of the lower appellate court.
The three justices who dissented, however, said that clearly the law focused on sex and gender, so it should receive the higher test of intermediate scrutiny. Justice Sonia Sotomayor suggested that the law fails the intermediate scrutiny test, but Justice Elena Kagan said that the case should be sent back to the lower courts to use the new test to determine an appropriate outcome.
We can argue about whether the majority was correct in finding that the statute did not target sex, but there are two things that emerge as particularly important in terms of jurisprudence.
First, since the court said the statute did not target people on the basis of sex, it did not determine an appropriate test for any statutes in future cases that do target trans people. This remains an open question.
Second, in a striking move Justice Amy Coney Barrett wrote a concurring opinion in which she went further than the court majority and found that trans people are not a protected class and that discrimination against them is not the same as sex discrimination. Thus, the low rational basis test should always be applied to statutes that target trans people. This is so unusual because as a conservative, Barrett prides herself on being “non-activist.” Going further than the court majority is a pretty standard activist move. It’s also surprising that only Justice Clarence Thomas agreed with her. This means that other conservative justices either did not agree or did not want to be activist in this sense. So, there are far more questions than answers about the future of any legislation that does, in fact, target the trans community in a specific way.
Now what?
This was a tough case for a lot of people. For those who seek justice for the LGBTQ community, the focus is now three-fold.
First, litigation against laws that target this community should continue. Equal protection is one aspect, but there are other parts of the Constitution that are also relevant. Medical decisions about children are parental rights and these emerge from the 14th Amendment’s due process clause. Interestingly, 100 years ago religious parents were some of the first to claim rights in this way. I think that there are also some religious freedom arguments to be made by parents who believe their faith requires that their trans children be aided in becoming who they were created to be. Certainly, the states that are talking about limiting medical care for adults will eventually face religious freedom claims.
Second, policy has to be addressed at the state and local levels. Many states have or are considering laws that limit trans rights in some way. Policy on sex and sexuality is usually driven by two things: it’s driven by fear, or it is driven by compassion after people learn the stories of those who are suffering. If you work on these issues, you know the power of story. When we consider the liberation movements of the last century and the backlashes that accompanied them, we see the power of fear and story interacting together. Trans rights will not be integrated into our culture until most people know someone who is trans. I did not meet someone I knew to be trans until I was 48. There is much to do in this area.
Third, we can consider where we put our money. This is not an academic exercise for children who suffer. There are organizations that specialize in helping children get legal medical care across state lines, but families impacted by these laws have significant costs attached to this support. People who live near a state that limits medical care can give money or open their homes to families who must travel for medical care.
Constitutional issues are never just academic. They impact real people in real time. But we also have to understand that the Supreme Court is never the last word on the issues of the day. Advocating and persuading are powerful and in the long run can have a stronger and more permanent impact than a Supreme Court case. My message in politics and law always has to be “do not give up hope.”
The views expressed in this opinion column are those of the author and do not necessarily reflect the views of FāVS News. FāVS News values diverse perspectives and thoughtful analysis on matters of faith and spirituality.
As someone who received legal medical care to alter my sex as a minor, I hope we protect the natural bodies of all children who are born to us. As people of faith, we should consider that altering the sexual systems of young bodies may be medical hubris.