Biden administration urges SCOTUS to hear trans care cases, strike down bans

"Absent this Court’s review, families in Tennessee and other States where laws like SB1 have taken effect will face the loss of essential medical care."

The Biden administration on Monday urged the U.S. Supreme Court to take up cases over transgender health care bans, arguing that Tennessee’s ban on gender-affirming medical care for minors violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Justice Department filed in that specific case because it earlier this year had intervened in the case.

“[T]he question whether the recent wave of bans on gender-affirming care are consistent with the Equal Protection Clause is a question of national importance that urgently requires a definitive resolution,” the Justice Department lawyers argued in the certiorari petition filed Monday. “Absent this Court’s review, families in Tennessee and other States where laws like SB1 have taken effect will face the loss of essential medical care.”

The filing is the third such request to reach the Supreme Court in the past week — following on cert petitions filed by transgender plaintiffs and their families in Tennessee and then Kentucky urging the justices to hear the cases over their states’ respective bans.

The Monday filing by the Justice Department asked the Supreme Court to resolve the question of whether the ban in Tennessee violates equal protection, arguing that it does so on the basis of it being a sex-based classification and because the law “discriminates against transgender individuals.” For both of those reasons, DOJ argued, the law should be subject to heightened scrutiny — and, the brief continued, it cannot pass that more stringent test.

The Biden administration’s brief argued that the U.S. Court of Appeals for the Sixth Circuit got it all wrong by holding the Tennessee and Kentucky bans to be likely constitutional in September.

The DOJ lawyers wrote:

The Sixth Circuit did not suggest that laws like SB1 could survive heightened scrutiny. Instead, it applied only the deferential rational-basis standard because it held that some laws that draw sex-based lines do not trigger heightened scrutiny—and that laws discriminating based on transgender status never warrant heightened review. Those holdings are wrong, and they create or deepen circuit conflicts on the proper application of the Equal Protection Clause to laws targeting transgender individuals, both in the specific context of bans on gender-affirming care and more broadly.

The ACLU’s Chase Strangio, counsel of record for the challengers in the Tennessee case, told Law Dork this past week that going to the Supreme Court — even as conservative as it is — is a necessary step because the Sixth Circuit decision and the opinion of the U.S. Court of Appeals for the Eleventh Circuit upholding Alabama’s similar ban as likely constitutional are “an untenable set of opinions to leave in place.“

In their conclusion on Monday, the Justice Department lawyers agreed that delay is no option.

“[D]elay would prolong the harm suffered by adolescents in the Sixth and Eleventh Circuits who are being or will soon be denied critical medical care. And delay would prolong the uncertainty for minors and their families across the country, who do not yet know whether the bans in their States will be upheld or enjoined,” the brief stated. ”This Court’s intervention is warranted now.”

Notably, the Justice Department veers off from the plaintiffs in the Tennessee and Kentucky cases in one significant aspect: While both of those petitions also ask the Supreme Court to take the cases to consider whether such bans violate the constitutional due process rights of parents to direct the upbringing of their children, the Justice Department specifically argues — in a footnote — against taking up that question:

At the same time, the Justice Department nonetheless also in the footnote urged the court to take up all three cases and hear them together on the equal protection question.

With Monday’s filing, then, three parties — including the U.S. government — are urging the Supreme Court to resolve this issue — and to do so in a way the will provide constitutional protections for transgender people.

This breaking-news story was updated and expanded after initial publication with the final update at 10:30 p.m. Check back at Law Dork for the latest information on this story.