Supreme Court allows Idaho ban on trans minors' medical care to go into effect

Although the opinions focused on the ongoing debate over "universal injunctions," it's trans kids who will face the consequences of Monday's high court order.

On Monday, the U.S. Supreme Court — over the dissent of the liberal justices — allowed Idaho to enforce its ban on gender-affirming care for minors for the first time against anyone other than the two transgender minors challenging the law.

Under the court’s order, the law remains blocked as to those two minors.

This was not a ruling on the constitutionality of such bans, but rather a shadow docket ruling about what has been criticized as “universal injunctions.” Despite that, it is transgender minors in Idaho, as well as their families and medical providers, who will face the consequences of Monday’s ruling.

At the same time, however, the same court has now put off — for months — the requests from Kentucky and Tennessee residents and the Biden administration to take up a case challenging the underlying constitutionality of similar bans. It is currently due to consider whether to take those case up on Friday at the justices’ private conference, but could, yet again, reschedule the cases before then to be considered at a later conference. [Update, April 19: The court, again, has rescheduled the consideration of those petitions, so the justices did not consider them at the April 19 conference.]

Back in December 2023, before Idaho’s ban was to go into effect on Jan. 1, U.S. District Judge B. Lynn Winmill blocked enforcement of the law, passed as H.B. 71, with a preliminary injunction that halted all enforcement of the entire law statewide as the lawsuit proceeded.

As Gorsuch wrote on Monday, “Ordinarily, injunctions like these may go no further than necessary to provide interim relief to the parties. In this case, however, the district court went much further, prohibiting a State from enforcing any aspect of its duly enacted law against anyone.”

It was this — with virtually no discussion of the underlying law at issue — that prompted Gorsuch’s 13-page concurrence. He was joined in that opinion by Justices Clarence Thomas and Sam Alito. Justice Brett Kavanaugh, joined by Justice Amy Coney Barrett, wrote a separate 13-page concurrence.

Monday’s decision was not even a ruling on the Idaho law’s likely constitutionality, a part of the standard for granting preliminary injunctions. Instead, as the concurring opinions made clear, this was a ruling about the scope of the relief issued by the district court in the Idaho case — a statewide injunction of the entire law — in light of the plaintiffs in the case — two minors suing to ensure their access to “puberty blockers and estrogen” would not be blocked under the law.

Justice Kentanji Brown Jackson dissented, joined by Justice Sonia Sotomayor, but even they agreed that the legal matter at issue on Monday was “the open and challenging questions that” universal injunction raise. The pair strongly disagreed with the court’s majority on how to address them in general and specifically here, and would have left the full injunction in place, but they agreed on what was at issue.

Justice Elena Kagan also would have denied the state’s stay request, but neither joined Jackson’s dissent nor wrote anything of her own explaining her reasoning.

Chief Justice John Roberts joined no opinions and did not state his vote in the case. Because five justices issued or joined opinions concurring in the result, we technically do not even know how Roberts voted in the matter.

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For opponents of these anti-transgender bans, it is certainly bad news that the Supreme Court majority was comfortable finally taking action on an issue several justices have been complaining about — universal injunctions — when it was transgender people’s rights to medically necessary care at stake.

After writing that some might say that “[r]etiring the universal injunction” is more “inefficient” and gives “less power” to judges and “less drama” for the parties and public, Gorsuch concluded, “[I]f any of that makes today’s decision wrong, it makes it wrong in the best possible ways” — showing a complete lack of regard for the actual lives of those affected by laws like Idaho’s ban.

That is horrifying, but for legal purposes — including for the message lower courts should take from this — this was not a ruling about transgender people’s rights. It was, rather, a ruling on the appropriate scope of injunctions and similar relief and whether the Supreme Court will issue shadow docket relief to address lower courts that issue such injunctions.

“[I]nstead of enjoining state officials from enforcing the law with respect to the plaintiffs and the drug treatments they sought, the district court entered a universal injunction,” Gorsuch wrote in his concurrence.

After the December ruling, Idaho had asked the U.S. Court of Appeals for the Ninth Circuit to block the statewide scope of that injunction — with support from far-right Christian legal advocacy organization Alliance Defending Freedom working for Attorney General Raúl Labrador “without charge,” as Law Dork previously reported.

When the Ninth Circuit denied that request, Idaho — again, with ADF’s support — went to the Supreme Court, filing a request that contained anti-transgender arguments and rhetoric but, legally, focused almost entirely on the question of the scope of the district court’s relief.

On Monday, Gorsuch, Kavanaugh, and a majority of the court rewarded that approach.

The court’s order, as is the norm for shadow docket requests, did not give any reasoning:

In his concurrence, though, Gorsuch discussed his ongoing dissatisfaction with such broad relief and highlighted other ways of obtaining broader relief, including class-action litigation — litigation that conservatives have long worked to limit. He then concluded that the injunction should be stayed except as to the plaintiffs — so, enforceable against all people in Idaho except the two minors in the lawsuit.

Then, he reiterated his broader focus here.

“[U]niversal injunctions circumvent normal judicial processes and tend to force judges into making rushed, high-stakes, low-information decisions at all levels,” he wrote. “Today, the Court takes a significant step toward addressing the problem.”

Although Jackson disagreed with Gorsuch on several points as to his approach to addressing universal injunctions, in addition to his conclusion as to Idaho’s request, she also questioned the premise that a universal injunction was even at issue here. As she explained:

[T]he District Court settled on issuing a statewide preliminary injunction for a party-centered, fact-specific reason: because it found that doing so was necessary to protect the particular plaintiffs before the court, including two minors proceeding under pseudonyms, against action by the State it deemed likely unconstitutional.

It is likely that there would still be elements of the injunction that, under Gorsuch’s reasoning, he would find to be unjustified — blocking enforcement of parts of the law not directly challenged by the plaintiffs — but it is notable that neither Gorsuch nor Kavanaugh even acknowledged this element of the district court’s justification for the injunction.

For his part, much of Kavanaugh’s concurrence addressed “various suggestions … made to eliminate or reduce the need for this Court to address likelihood of success on the merits when resolving emergency applications involving new laws.” The review of the “likelihood of success on the merits” is one of the steps Supreme Court precedent lays out for considering a request for a stay like Idaho sought here, and often it is the pivotal step.

After reviewing the suggestions for ending or diminishing that, Kavanaugh wrote that, while some of those ideas have “force” and others don’t, the court will still need to examine the likelihood of the success on the merits in addressing some shadow docket requests.

And, here, Kavanaugh noted, “[T]he State’s application seeks a stay primarily because of the scope of the injunction. That issue is itself certworthy, and I believe that the State has a likelihood of success on that issue.”

In sum, without ruling on the constitutionality of Idaho’s ban or even the likelihood of the state’s success in defending the ban, the Supreme Court majority allowed new restrictions on transgender minors’ medical care in Idaho to go into effect on Monday.