FFRF preparing for Supreme Court gender affirming care case

A photo of the transgender flag

The Freedom From Religion Foundation cautions that an upcoming U.S. Supreme Court case will likely be a major turning point in the rapidly escalating battle over transgender rights.

The Supreme Court announced on Monday that it will be taking up the question of whether Tennessee’s ban on gender affirming care for minors violates the Equal Protection clause of the U.S. Constitution. In United States v. Skermetti, the court will tackle Tennessee SB 1, which prohibits any medical treatment to help “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” The petitioners include three transgender adolescents, their families and a Tennessee physician who treats adolescents with gender dysphoria for whom the ban presents significant health, safety, and personal risks. SB 1 closely mirrors the bans in 24 other states, which were pushed by Christian nationalist organizations such as the Alliance Defending Freedom and the American College of Pediatricians (not to be confused with the American Academy of Pediatrics).

Treatments banned under SB 1 include puberty blockers, which allow minors experiencing gender dysphoria to temporarily delay the onset of puberty while they figure out their gender identity. The purpose of such treatment, which is rare, is to prevent psychological harm and trauma associated with going through puberty as the wrong gender, as well as lessen the need for more extreme medical interventions later in life. The ban also includes treatments for older teens such as hormone replacement therapy, which are administered by providers only after a teenager has identified and lived as their named gender identity for a significant amount of time, and after all medical providers, the patient and their family agree on a course of action.

Notably, SB 1 explicitly permits the exact same banned treatments for intersex youth and children experiencing precocious puberty, making access to treatment conditioned purely on the patient’s assigned sex at birth, rather than being related to the safety of the treatments or informed consent laws.

The district court granted a preliminary injunction, which blocked the law from going into effect until its constitutionality could be determined in order to prevent irreversible harm to the plaintiffs. However, the 6th U.S. Circuit Court of Appeals ruled that the law could go into effect pending appeal, citing the same “history and tradition” test used by the Supreme Court to overturn the right to access abortion.

“It was only a matter of time before the court was going to have to take on the issue of gender affirming care,” says Freedom From Religion Foundation Equal Justice Works Fellow Kat Grant, whose fellowship projects tackles the intersection of LGBTQIA+ rights and state/church separation. “Transgender rights are serving as a proxy war for Christian nationalist ideals surrounding gender roles and bodily autonomy, and courts across the country have taken different stances on the constitutionality of banning gender affirming health care.”

Although we should be wary of the extremist conservative wing of the court, Grant notes that this is not necessarily a death knell for gender affirming care: “Several conservative judges, including Trump appointees, have ruled gender affirming care bans to be unconstitutional due to the animus behind their passage. The Supreme Court has also ruled in favor of transgender people in the recent past, so it is not out of the realm of possibility that it will allow the preliminary injunction to go into effect.”

Says FFRF Co-President Annie Laurie Gaylor: “Almost half our states have passed anti-LGBTQIA-plus legislation explicitly motivated by the religious beliefs of individual politicians.”  Noting that the gender affirming model has been the standard transgender health care for both minors and adults for decades, Gaylor adds: “Health care policy must be made based on the same scientific basis, not theological understandings of gender.”

FFRF anticipates filing a friend-of-the-court brief with the Supreme Court in the case.

The Freedom From Religion Foundation is a national nonprofit organization with over 40,000 members across the country. Our purposes are to protect the constitutional principle of separation between state and church, and to educate the public on matters relating to nontheism.

Freedom From Religion Foundation

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