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Chase Strangio on asking SCOTUS to review Tennessee's trans care ban, a Law Dork Q&A
"We are going to the Supreme Court because the Sixth Circuit opinion was catastrophically wrong as a doctrinal matter and as moral matter."
On Nov. 1, lawyers for Tennessee families and medical providers asked the justices of the U.S. Supreme Court to hear their case challenging the state’s ban on gender-affirming care for minors, as reported at Law Dork.
It was a dramatic move in a quickly developing story about how transgender people are treated in America and how their lives and medical care are respected — or not.
“Ultimately, the calculus for us was to fight with everything we have to tell this court that the lower courts have gotten it wrong,” Chase Strangio, the deputy director for transgender justice within the ACLU's LGBT & HIV Project, told me the next day. “Is that scary? Of course it is.”
Strangio is the counsel of record on that certiorari petition before the high court. At the forefront of LGBTQ litigation throughout the past decade, Strangio is transgender, an incredibly smart lawyer who also regularly highlights the limits of the law, and and a key voice in the fight for transgender rights both within the law and more broadly.
We’ve known each other throughout that time, first meeting in person outside of the U.S. Court of Appeals for the Sixth Circuit courthouse in Cincinnati, Ohio, in 2014, when the federal appeals court was hearing cases over marriage bans in Kentucky, Michigan, Ohio, and Tennessee. Judge Jeffrey Sutton’s later decision for the court upholding the states’ bans was appealed to the Supreme Court, which reversed his decision in Obergefell v. Hodges — resulting in nationwide marriage equality.
Nearly a decade later, Strangio and I were on the phone talking about Sutton — now the court’s chief judge — yet again. This time we were talking about the 21 states that have passed bans on gender-affirming medical care for minors — 18 of them this year — and the many lawsuits challenging those bans.
“I remember it was it was Friday, July 7,” Strangio told me. “I actually was on Chris Hayes's show that night talking about the consensus among the courts” that bans on gender-affirming care for minors are unconstitutional. At that point, federal judges in Alabama, Arkansas, Florida, Indiana, Kentucky, and Tennessee had all found that the bans are likely unconstitutional. “But I knew this stay briefing was up at the Sixth Circuit, and I was like ‘I know that I'm just tempting fate here.’ And at 11:38 p.m. on Friday night, July 7 … the Sixth Circuit’s stays the injunction.”
Sutton wrote the 2-1 opinion, and he was joined by Judge Amul Thapar. The pair ended the consensus that Strangio had been discussing by allowing Tennessee to enforce its ban during the state’s appeal of its loss at the district court. And though Sutton insisted that the July 7 ruling might be “wrong” and that the issues would be reviewed in more depth when the court considered the appeal, it was a substantive, published decision that changed the landscape.
“They basically go out of their way to find every reason why rational basis should apply to this law,” Strangio explained — a difference from the heightened scrutiny that all of the other courts had applied because they found that the bans discriminate on the basis of sex and/or transgender status. That, in turn, more or less decided the matter because the Sixth Circuit only subjected the Tennessee law to the most deferential level of review.
After that night, the Tennessee ban was allowed to go into effect. Kentucky — as another state in the Sixth Circuit — followed quickly thereafter. It wasn’t just the Sixth Circuit, either.
“I think it is important to note that Sutton is a powerful and influential judge on the federal bench,” Strangio said. “It shifted the dynamic nationally.”
The U.S. Court of Appeals for the Eleventh Circuit reversed a district court’s injunction the next month, upholding Alabama’s ban as likely constitutional. That has had fallout effect on Florida and Georgia, also in the Eleventh Circuit. The Sixth Circuit held arguments on the Tennessee and Kentucky cases in early September and issued its decision — again authored by Sutton — on the night of Sept. 28.
“Subsequent to that, our case in Oklahoma is decided against us,” Strangio said of an Oct. 5 decision by a district court judge in Oklahoma. “The judge applies rational basis and upholds Oklahoma’s criminal ban on health care for trans adolescents.” And in the U.S. Court of Appeals for the Eighth Circuit, where a three-judge panel previously upheld a preliminary injunction against Arkansas’s ban, the court announced that it would be hearing the state’s appeal of the permanent injunction against the Arkansas ban en banc, meaning by the whole court — and meaning they could reach a different decision than the earlier panel.
Over four months, the legal landscape was upended.
All of which brings us back to Nov. 1, when the Tennessee plaintiffs — backed by Strangio and other ACLU lawyers, as well as lawyers from the ACLU of Tennessee, Lambda Legal, and Akin Gump — filed their petition for a writ of certiorari at the Supreme Court.
The move immediately raised questions. I heard from many people who voiced their fears about going to this Supreme Court with this case. And I, of course, had had questions of my own.
So, on Thursday, I talked with Strangio — about the filing, those fears, fighting back, and our future.
This following interview has been condensed and edited for readability.
LAW DORK: So, as you said, the dynamic had shifted — and you had this Sixth Circuit decision that you need to deal with. It was a lot to take in — and the clock was ticking.
CHASE STRANGIO: We're looking at this map where care is so catastrophically constrained across the country and so many families are calling us saying, “I called the clinic in Colorado or I called the clinic in Minneapolis and they have a wait list of over a year.” And this is not care that you can wait over a year to receive. So this is a crisis facing the trans community.
When we got the decision from the Sixth Circuit, it was it was not a surprise. It mirrored, as I said, the stay opinion. We had three options, in essence. We could seek rehearing en banc [by the full Sixth Circuit], we could give up altogether, or we could petition for review at the at the Supreme Court.
There's a lot of strategic decisions that go into all of this. There’s a calculation of what's already headed to the court, what’s the future likely to look like, but I would say — and, you know, obviously I can’t divulge all of our strategic considerations, but — the two main things that I would say which are publicly available and should be relatively obvious to anyone who’s paying attention is: One, this is a crisis, and it’s getting worse, not better. And two, this is an issue that is going to reach the court multiple times in the near future, whether they take our case or not.
In addition to the pending cases at the Eleventh and the Sixth, and the Eighth, there are cases at the Seventh and the Tenth already. There will be cases at the Fourth and the Ninth. This is moving incredibly quickly, in part because the state legislatures moved incredibly quickly in banning the care. And so when it comes to us as advocates, looking at conservative appellate courts, looking toward the Supreme Court, we’re using every tool in our toolbox to defend the survival and autonomy and legal rights of our clients and our communities.
So, we are going to the Supreme Court because the Sixth Circuit opinion was catastrophically wrong as a doctrinal matter and as moral matter. And we think that the court should review it and reverse, and that the district court's decision — which has dozens of pages of factual findings and goes far into the record — should be deferred to, as is the role of appellate courts, and that heightened scrutiny should be applied.
LAW DORK: After I published the news the that you were going to the Supreme Court with this case, at least one person's response on every platform was, essentially, “This makes me really nervous because of this Supreme Court.” What do you say to those people who say, “I’m afraid. This Supreme Court’s bad. Look at what they did with Dobbs, look at what they've done with other things. Why would we volunteer to go into the arms of the current Supreme Court?”
STRANGIO: I would say, “Of course, you're afraid. It's scary right now.” It's going to be scary if it gets to the Supreme Court, although there's no guarantee of what they'll do. But it’s also really scary to allow losses to pile up and let them stand.
The question isn't, “Must states ban the care?” The question is, “Can they ban the care?” If every state can ban the care because we lose and lose and lose and in federal courts of appeals, that is the same outcome as losing at the Supreme Court — with obvious different implications, including doctrinally, because it depends, of course, how you lose. But the way we've lost in Eknes-Tucker [the Eleventh Circuit Alabama case] and L.W. [the Sixth Circuit Tennessee case] is an untenable set of opinions to leave in place, both for trans people but also for everyone who needs legal protections — legal sex discrimination protections, equal protection protections.
From my perspective, every single thing we do in the federal courts is always scary. This is not and will never be our path to liberation. And there will always be ways that we can fight, regardless of what any court does. But when we look at what the courts have started to do, sitting by and allowing care to be shut off to this degree without trying to convince the Supreme Court just how wrong those lower court decisions are wasn’t tenable. Ultimately, the calculus for us was to fight with everything we have to tell this court that the lower courts have gotten it wrong.
“From my perspective, every single thing we do in the federal courts is always scary. This is not and will never be our path to liberation.”
LAW DORK: It’s a lot to take on — and at a very unstable time.
STRANGIO: Is that scary? Of course it is. Is it scary to bring these cases in the first instance? Of course it is. Is the future so uncertain and scary — separate and apart from the Supreme Court? I would say yes. So no matter what happens, we have to be developing ways to take care of each other. We have to be developing the ability to access care and help people move across state lines, just as we have to in the abortion context. We had our landscape changed so dramatically in such a short period of time that no matter what we're doing in the courts, we have a lot of work to do on the ground.
But allowing a decision to stand that fundamentally expanded Dobbs in dangerous ways, that misapplied equal protection doctrine, and that diminished the ways in which laws are targeting trans people — leaving that decision in place as it was did not feel like the proper or strategic choice in this instance. And as advocates, we have to make calls within incredibly constrained and violent systems, and we do our best.
It was scary to have Bostock up at the Supreme Court. It was scary when they took Grimm up to the Supreme Court. And, admittedly, we didn't file those petitions. But sometimes we do. There are many petitions that have come out of the Fifth Circuit to try to correct egregious errors of law. And that is something we need to do, or else we've already sort of accepted defeat.
LAW DORK: You talk a lot about the fact that the legal system isn't always the solution. And that we do need to be looking outside of it. And yet now you're the counsel of record on this this petition at the Supreme Court. When you're talking about those larger picture questions, what does it matter that it is a trans lawyer who is bringing this case to the Supreme Court?
STRANGIO: I think it matters that trans people are centrally involved in these decisions. One thing that can't be said is that there are no trans people at the center of this. There are trans people that are leading these cases. And that is important, because we have a singular and visceral understanding of how critical this healthcare is. I will speak for myself, and not other trans lawyers involved, but there's no universe in which my career would be what it was without this healthcare. And I would give anything to have had access to it earlier.
And so for those of us — I'm 41 years old — of my generation, who are seeing a younger generation have access to care earlier, only to have it ripped away by misinformation and horrible untruths spoken about trans life and trans bodies, it propels me to fight back and to fight with everything we have.
This isn't the only thing that we're doing. This is one thing that we're doing. And it's something that I feel as a trans lawyer, as a trans advocate, I can stand behind. And that doesn't mean I think it's unambiguously correct, because I don't think there is any unambiguous correctness in a system so very flawed. But we will continue to fight with everything that we have. And that doesn't mean that we're automatically going to win. Of course it doesn't. But it means that we're going to ensure that our stories are told, that our care is defended, and that the connection of this fight to other fights is understood broadly. When we go to the to the polls next week, when we go to the polls in a year, that our lives, our autonomy, our ability to self-determine our futures and our identities is on the line — and not just for trans people.
This is my fourth case at the Supreme Court in some capacity in my 11 years at the ACLU. And it's the first time that I've been counsel of record in in one of those cases. I think it is important to continue to build up the leadership of trans litigators because so much of what's being debated is who we are, whether we deserve legal protections, and whether our health care is legitimate. And so, in trial and depositions and oral argument, I think it does matter when the decision-makers or the witness or whoever has to look us in the eye.
LAW DORK: Is there is there anything else that you think people should be thinking about as we go into what's going to be a period with a lot of these cases? There's already this bathroom case cert petition that Paul Clement filed in the Indiana case, Martinsville, and there are certainly going to be many more coming over the next year or two. How do you think people should be looking at this period and should be living in a period where these cases are going to be coming to the Supreme Court — to a very conservative Supreme Court — over the course of the next two years?
STRANGIO: What I hope — and this is what I hoped when Bostock was at the court — is that people see their own rights implicated in these attacks on our rights. That what is under assault are generalizations about sex, what is under attack are legal protections more broadly, and trans people are going to be at the center for the next two years, whether we had filed this petition or not.
What we need is for people to really show up alongside us, because ultimately how the court rules in any of these cases is going to have far-reaching implications for everyone who experiences sex-based discrimination, but also for anyone who experiences legal discrimination, full stop. And so I hope that people are ready to join us in this fight. And this fight isn't just playing out in the courts. It's perhaps more powerfully playing out in the public discourse. I hope that we continue to have people do the work of educating themselves and working alongside us in solidarity.
I just think it’s just really important that people understand the many fights ahead and — I personally feel prepared to show up for all of them — and I hope that others do, too.
Law Dork with Chris Geidner brings you independent, reader-supported legal and political journalism that seeks to hold government and other public officials accountable. Support this reporting by becoming a paid or free subscriber today.