Ground is set for Dec. 4 arguments in SCOTUS case over trans care ban
Chase Strangio will argue for the trans kids whose treatment Tennessee has banned. Also: The latest with Robert Roberson in Texas and the Virginia voter-purge lawsuit.
Over the past few days, the U.S. Supreme Court has issued a set of orders that solidify the landscape for what will almost certainly be one of the most important cases the court decides this term: U.S. v. Skrmetti.
The case over Tennessee’s law banning gender-affirming medical care — specifically, puberty blockers and hormone therapy — for transgender minors has been on the court’s docket for this term since June. At that point, the court granted review of the Justice Department’s case for the Biden administration, an argument that the law violates the constitutional guarantee of equal protection of the laws and, as such, a 2023 decision of the U.S. Court of Appeals for the Sixth Circuit upholding Tennessee’s law should be overturned.
Under a Monday order from the justices, both the Justice Department and the private plaintiffs who originally challenged the law will have lawyers arguing against it in court, as they requested. Just a few days earlier, the court announced its December argument calendar, which included the news that it will be hearing Skrmetti on Wednesday, December 4.
The case is the only argument on December 4.
The solicitor general’s office will argue first that day — a 15-minute argument (with a few minutes reserved for rebuttal) that likely will go at least double that. Solicitor General Elizabeth Prelogar would be expected to argue such a high-profile case, but the Justice Department has not yet confirmed who will be arguing. Next will be Chase Strangio, arguing for the ACLU, Lambda Legal, and Akin Gump on behalf of the private plaintiffs — trans kids, their parents, and a medical provider — who challenged Tennessee’s law. The ACLU confirmed on Monday afternoon that Strangio will be arguing for the private plaintiffs’ 15-minute argument, which will be expected to go over.
Tennessee — likely Solicitor General Matthew Rice — will then have 30 minutes to defend the law, an argument that could wind up going an hour or more. Finally, DOJ will conclude with a brief rebuttal.
Strangio, as other media highlighted on Monday, will be the first out transgender attorney to argue before the justices. The co-director of the ACLU’s LGBTQ and HIV Project, Strangio has challenged the anti-trans bans at the trial court level and on appeal around the country in recent years — and has been a lawyer with the ACLU for more than a decade. I talked with Strangio about the Tennessee case nearly a year ago, when the private plaintiffs first asked the justices to take up an appeal of the Sixth Circuit’s decision.
Chase Strangio on asking SCOTUS to review Tennessee's trans care ban, a Law Dork Q&A
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.
The justices, however, did not take up their petition — or a similar request out of Kentucky. Instead, the court took up the Justice Department’s appeal.
The primary difference is that the private plaintiffs raised the equal protection argument brought by the Justice Department and, additionally, a parental rights due process claim. The Justice Department has not backed that argument, and it is not raised in the DOJ petition.
As such, only the equal protection question is before the justices in U.S. v. Skrmetti. That argument, however, has two main parts. Both DOJ and the private plaintiffs argue that Tennessee’s law violates equal protection for discriminating based on sex and on the basis of transgender status.
Both DOJ and the private plaintiffs filed their brief opposing the law and the Sixth Circuit’s decision back in late August. Tennessee filed its brief in support of the law and the Sixth Circuit’s decision earlier this month.
There also have been dozens of amicus curiae — friend of the court — briefs filed by groups and individuals who are not a party to the case but believe they have something to add the consideration of the case.
Here at Law Dork, I’ll have much more on the case and legal arguments advanced in the run-up to the oral arguments. I’ll also be covering the oral arguments and will have extensive coverage of the decision.
For more from Chase Strangio — along with journalists Orion Rummler and Nico Lang — be sure to check out our Law Dork video discussion from September.
Law Dork Video: Reporting on and fighting for trans kids in 2024
I normally do an introduction up top here for the video discussions, but — beyond thanking Nico Lang, Orion Rummler, and Chase Strangio again for their time and talents — I realized that my introduction on the video works as well as anything I’d write here, so I’m going to let the video take it away.
Robert Roberson doesn’t speak — yet
On Monday, Strict Scrutiny highlighted Law Dork’s coverage of Robert Roberson, so check out Monday’s episode for that — and a lot about the Supreme Court’s efforts to go after the Environmental Protection Agency.
As for Roberson himself, he did not testify before the Texas House committee on Monday as he had been subpoenaed to do, as questions about the logistics of the testimony were still being worked out.
The Texas Tribune reported:
State Rep. Joe Moody, D-El Paso and chair of the Criminal Jurisprudence Committee, said that the panel is working to ensure the death row inmate’s testimony could be taken soon, such as via the lawmakers visiting with Roberson on death row.
Law Dork will have more on this as circumstances warrant.
Virginia voter-purge lawsuit moves forward
On Monday, U.S. District Judge Patricia Tolliver Giles rejected the request from Virginia officials to transfer the now-consolidated lawsuits from nonprofit groups and the Biden administration challenging Virginia’s late voter-purge program — covered last week at Law Dork — from the Alexandria Division to the Richmond Division.
On the case itself, meanwhile, Giles has ordered that, if needed, a hearing on the plaintiffs’ preliminary injunction request (along with DOJ’s request) will be held Thursday morning. Virginia is yet to file its response, but it appears likely to be filed in short order based on Virginia’s Monday request to file a 45-page brief, which was granted on Tuesday.
[Update, 4:50 p.m.: Virginia filed its opposition to all parties’ requests for a preliminary injunction late Tuesday afternoon.
Notably, Charles Cooper and other attorneys from Cooper & Kirk have now joined Virginia’s defense of its late voter-purge program.]
THE argument in the case is the fact that states still allow cis kids to get hormonal treatment, but not trans kids. I have to think this is too blatantly unequal for a majority of the judges. Not Alito, Thomas, and Gorsuch, but hopefully for the rest.
Laws aside...I'm so tired of this state-by-state crap. Every American should have fundamental rights to healthcare not undermined by political actors who are using vulnerable communities in order to gain power.
The right wing SCOTUS supermajority of six were all born and raised Catholic: When they all consider homosexuality a sin and a woman’s right to choose “egregious”—what chance of trans rights success?