‘This is a make or break moment’: Tennessee families ask Supreme Court to take on gender-affirming care

This story was originally published by The 19th

For the first time, attorneys working for LGBTQ+ rights have asked the Supreme Court to rule on a gender-affirming care ban for transgender youth. Lawyers with Lambda Legal and the ACLU, alongside other legal partners, are asking the court to block Tennessee’s law preventing trans youth from accessing gender-affirming care. 

Tennessee’s ban on puberty blockers and hormone treatments for trans youth first took effect this summer, when a panel of judges on the U.S. Court of Appeals for the 6th Circuit blocked the statewide injunction that had kept the law from taking hold. A full decision came in September, when the 6th Circuit found that gender-affirming care bans for trans youth must stay in place in Kentucky and Tennessee as lawsuits continue.

Tennessee law allows patients already receiving care to continue until March 2024, but physicians have already begun weaning trans adolescents off their hormone treatments to avoid a sudden cut-off of treatment next spring, Sruti Swaminathan, a Lambda Legal staff attorney, previously told The 19th. 

Attorneys representing transgender youth and their families in Tennessee are asking the Supreme Court to determine whether the state’s law violates the 14th Amendment’s equal protection and due process clauses. These questions are at the core of recent conflicting decisions between federal appeals courts and lower courts that some LGBTQ+ experts have previously seen as the groundwork for a Supreme Court case on gender-affirming care. 

“This next step is both uncertain and necessary. We must fight back with every tool that we have,” Chase Strangio, one of the most prominent transgender attorneys in the country, said on Instagram while announcing the high court petition. Strangio is the deputy director for transgender justice at the ACLU’s LGBTQ & HIV Project. 

In a written post on the ACLU’s website, Strangio alluded to the risk inherent in asking a conservative-majority Supreme Court to take up the case — while maintaining that advocates must exhaust every available option to protect gender-affirming care. 

“We have witnessed this court disregard and infringe people’s bodily autonomy repeatedly, most recently with its devastating decision in Dobbs, which overturned Roe v. Wade,” he wrote. “We take this step with full knowledge that, no matter what happens, we will have to fight for each other and use every tool in our toolbox to defend all our rights to bodily autonomy.” 

Four attorneys who have worked directly in other lawsuits on gender-affirming care bans or LGBTQ+ cases said that this marks the first time that a gender-affirming care ban for transgender youth has been appealed to the Supreme Court. 

Shannon Minter, legal director of the National Center for Lesbian Rights — who has been representing LGBTQ+ rights cases for decades — said that given the sheer number of states enacting gender-affirming care bans and other anti-LGBTQ+ laws, advocates have no choice but to fight them in court. After the 6th Circuit ruled in late September that gender-affirming care bans for trans youth must remain in place in Kentucky and Tennessee, taking the fight to the Supreme Court became necessary, he said. 

“The stakes of a Supreme Court case are extremely high,” he said. “This is a make or break moment.” 

If the court agrees to take up the case, it will either give transgender youth and their families relief and alleviate some of the hostile political pressure against trans people in the United States — or it will greenlight Tennessee’s law and pave the way for more attacks, Minter said. 

The Supreme Court has recently declined to get involved with several trans rights cases, and in doing so, granted wins to advocates through inaction. The high court declined to intervene in a case on whether transgender student Gavin Grimm could use the bathroom that matched his gender identity, and whether a trans girl in West Virginia could play in school sports. 

The Supreme Court has also declined to take up cases, most recently in 2021, in which attorneys representing incarcerated transgender women sought review of decisions denying gender-affirming care to their clients, said Omar Gonzalez-Pagan, counsel and health care strategist at Lambda Legal.

The case of Aimee Stephens — which led to the high court’s landmark 2020 ruling in Bostock v. Clayton County — is the only recent example of the Supreme Court agreeing to review a case involving trans rights being threatened, said Chris Erchull, an attorney at GLBTQ Legal Advocates & Defenders. In that ruling, the Supreme Court found that LGBTQ+ people are protected against workplace discrimination. 

“As far as the very recent and unprecedented slate of attacks that include bans on access to bathrooms, bans on access to participation in sports, bans on drag shows, and most alarmingly, the bans on access to health care, this is the first case that has been appealed to the Supreme Court,” Erchull said. 

In light of the unprecedented scope of these legislative attacks, it is crucial that transgender Americans do not give in to fear, Minter said. These laws are meant to silence and repress trans people, and to scare the community into inaction and hiding.  

“We all have to do everything we can, within our power, to resist that,” he said. 

The 19th is an independent, nonprofit newsroom reporting at the intersection of gender, politics and policy.