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LGBTQ cases are coming to the Supreme Court. A Law Dork guide on what to watch.
Idaho's bathroom ban will remain on hold for now — but bathroom bans, gender-affirming care bans, sports bans, and anti-drag laws are all headed toward SCOTUS.
Idaho’s bathroom ban law, which bars transgender students from using the restroom that matches their gender identity, will remain blocked for the time being — the result of a Thursday order from the U.S. Court of Appeals for the Ninth Circuit.
Although U.S. District Judge David Nye had initially blocked the law temporarily just before the start of the school year, he later issued a decision that would have let it go into effect in early November.
The challengers have appealed that ruling to the Ninth Circuit and also asked the appeals court to keep the law blocked during their appeal. On a 2-1 vote, the appeals court agreed to the injunction pending appeal on Thursday in a brief order. Judges William Fletcher, a Clinton appointee, and Mark Bennett, a Trump appointee, granted the request, citing to the circuit’s standards for such requests and writing, “Enforcement of Idaho’s Senate Bill 1100 is stayed pending resolution of this appeal.” They gave no further reasoning for their decision.
Judge Consuelo Callahan, a George W. Bush appointee, wrote, in a one-sentence dissent, that she would deny the request because, in her view, the challengers “have not demonstrated a sufficient likelihood of success on the merits of their appeal.”
Absent a further move from the state, the decision means that the law, S.B. 1100, likely will be blocked at least throughout the remainder of this school year given the normal timing of Ninth Circuit cases.
The case is one of seemingly countless challenges percolating throughout the courts affecting LGBTQ people’s lives — particularly transgender people’s lives — and the back and forth surrounding the Idaho law is emblematic of the instability that these laws have created for queer people.
Almost all of these LGBTQ issues, though, are quickly making their way to the 6-3 conservative majority U.S. Supreme Court — with four major issues already at the high court or likely to be there soon: bathroom bans, gender-affirming care bans, sports bans, and anti-drag laws. (And there are others — like birth certificate laws, book bans, and other laws — that could quickly find their way up to the court as well.)
Here’s a roundup of some of the key laws and litigation that will figure into those Supreme Court questions in the coming months.
In addition to the Idaho case at the Ninth Circuit, however, a case out of the U.S. Court of Appeals for the Seventh Circuit could actually make bigger headlines. The Martinsville school district in Indiana, in a petition filed by Paul Clement, has asked the U.S. Supreme Court to take up the matter in a case challenging the district’s ban. Law Dork reported on this request previously.
The response to Martinsville’s petition, which lost at the Seventh Circuit, is now due Dec. 13 after lawyers for the student challenging the policy sought and received a 30-day extension. Even with that delay, however, briefing would be complete in time for the justices to take up the case this term. The court is more likely to take up the case than it otherwise might, given the fact that there already is a “circuit split” over such bans, with the U.S. Court of Appeals for the Eleventh Circuit upholding a school’s ban and the Seventh Circuit and U.S. Court of Appeals for the Fourth Circuit rejecting them.
Gender-affirming care bans
Litigation over bans on gender-affirming medical care for transgender minors has generated the most headlines in recent months, and that is likely to continue with a Supreme Court filing likely in the near future.
In late September, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit upheld, on a 2-1 vote, both Kentucky and Tennessee’s bans. No party has, thus far, sought review from the full Sixth Circuit, called en banc review. Due to a procedural rule because the federal government intervened in the Tennessee case, there is still time remaining in that case for the parties challenging the law to seek en banc review. However, because the government did not intervene in the Kentucky case, the time for en banc review in that case has passed.
Given all of that and given that it’s almost impossible to imagine the challengers to these laws dropping their appeals, it is most likely that the parties are planning to ask the U.S. Supreme Court to hear an appeal of the cases.
This filing would come as the Eleventh Circuit is still considering whether to re-hear the challenge to Alabama’s ban en banc; the Eighth Circuit is considering, en banc, Arkansas’s appeal of its loss in a challenge to its ban; the Seventh Circuit is considering Indiana’s appeal of a preliminary injunction of their ban; and challengers appeal a district court’s denial of a preliminary injunction against Oklahoma’s ban to the U.S. Court of Appeals to the Tenth Circuit. There are other cases pending in district courts and state courts as well.
In short, whether it comes quickly or slightly less quickly, state bans on gender-affirming medical care for minors will be headed to the Supreme Court within the coming year. (Note also that Florida’s ban — and litigation — also includes restrictions on adult care, as detailed in the recent class certification in a challenge to the ban there.)
The final major area of transgender-related litigation making its way through the courts are sports bans. And, on Friday, the U.S. Court of Appeals for the Fourth Circuit held oral arguments over West Virginia’s law banning trans girls and women from girls and women’s school sports teams.
"I don't know how we can possibly say that a law that is overtly designed to discriminate based on gender identity doesn't discriminate based on gender identity,” Judge Toby Heytens — a Biden appointee — said at the arguments, per Courthouse News’s report.
Referencing Judge Steven Agee, the one Republican appointee (George W. Bush) on Friday’s panel, Joe Dodson’s Courthouse News report concluded, “Agee described the Fourth Circuit as a way station with this case that he believes will likely find its way to the Supreme Court.” The final judge on the panel is Judge Pamela Harris, an Obama appointee, who did ask some skeptical questions of the challengers, per the Courthouse News report.
Although the Fourth Circuit doesn’t have a timeline to release its decision, the case has already prompted one preliminary ruling from the Supreme Court. The high court previously rejected West Virginia’s request to enforce the ban during their appeal. At the same time, the procedural peculiarity of that request — the state had allowed an injunction against the law’s enforcement to remain in place for more than a year before going to the Supreme Court for “emergency” relief — diminishes how much should be read into the high court’s ruling on that request.
Earlier this year, the Ninth Circuit upheld a preliminary injunction blocking a similar ban out of Idaho — the ban that was the first of its kind when passed in 2021.
As I’ve reported at Law Dork previously, Florida is desperately seeking to enforce its new anti-drag law during its appeal of a district court’s injunction issued earlier this year blocking all enforcement of the law. After the injunction was issued, the district court — unsurprisingly — declined to stay the statewide effect of his ruling pending appeal. (In short, the state is appealing the full order, but not seeking a stay pending appeal as to the challenger, Hamburger Mary’s of Orlando.) The Eleventh Circuit also denied the partial stay request, on a 2-1 vote.
On Nov. 19, Florida Attorney General Ashley Moody went to the Supreme Court, asking the high court to issue a partial stay of the district court’s injunction. A response to that request is due by Nov. 2.
At the same time, the case over Tennessee’s anti-drag law is on appeal before the Sixth Circuit and Texas has appealed the injunction issued against its law to the U.S. Court of Appeals for the Fifth Circuit.
In short, while anti-drag laws are unlikely to make their way to the Supreme Court’s docket this term, there will be a ruling on the scope of Florida’s injunction pending appeal sometime in November. Depending on how that’s resolved, moreover, it could tell us some information about how the court is looking at these efforts.
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.