FILE - The Supreme Court in Washington, Dec. 17, 2024. (AP Photo/J. Scott Applewhite, File)
By: Mary Steurer
WASHINGTON (North Dakota Monitor) – The U.S. Supreme Court this week upheld a Tennessee law that bans gender-affirming care for minors as a North Dakota court considers whether a similar policy violates the state constitution.
In a 6-3 vote on Wednesday, the court’s conservative majority found that Tennessee’s law does not violate the Fourteenth Amendment’s guarantee of equal protection under the law.
It remains to be seen whether the legal challenge against North Dakota’s law, which went to trial in January, will fare any differently. Similar to the Tennessee case, the North Dakota plaintiffs claim a violation of equal protection rights. But they’re also asking a state district court judge to decide whether the law infringes on families’ freedom to make their own health care decisions.
The U.S. Supreme Court’s majority opinion, authored by Chief Justice John Roberts, indicates states have broad authority to regulate transgender health care as they see fit.
Citing a previous opinion from 1993, Roberts wrote that the high court’s “role is not ‘to judge the wisdom, fairness, or logic’” of the Tennessee law but only whether it is constitutional.
Both the Tennessee and North Dakota policies forbid medical providers from administering gender-affirming care to anyone under age 18. Lawmakers who supported the bans argued that the science behind gender-affirming care is unsettled and that governments have an interest in protecting children from obtaining potentially irreversible or harmful medical procedures.
Transgender children, their families and medical providers filed lawsuits against both bans, arguing such policies unlawfully prevent transgender kids from obtaining the same medical treatments as non-transgender kids. For example, a transgender child would not be able to take puberty blockers to treat gender dysphoria, but another child could take puberty blockers to treat precocious puberty.
In its ruling on the Tennessee law, the U.S. Supreme Court rejected this argument. The justices wrote that bans on gender-affirming care for minors don’t discriminate based on transgender status or sex; they only consider someone’s age and whether they are seeking treatment for gender dysphoria.
Justice Sonia Sotomayor in a dissenting opinion said the ruling “abandons transgender children and their families to political whims.”
Gender Justice, a legal group representing the plaintiffs in the North Dakota case, said in a statement that the Supreme Court’s decision “puts politics over science” and could impact access not only to gender-affirming care, but also other procedures like abortion and fertility treatments.
“Families — not politicians — should be the ones making decisions about their children’s health care,” Brittany Stewart, an attorney for Gender Justice, said in the statement. “Our case in North Dakota is still moving forward, and we’re committed to defending the constitutional rights of parents, medical providers and young people against government overreach into personal medical decisions.”
The North Dakota lawsuit alleges that the state’s ban violates personal autonomy, which the Supreme Court’s decision does not speak to.
During the trial, attorneys for the plaintiffs argued that freedom over health care decisions was an important part of North Dakota’s history and culture. One expert witness testified that since North Dakota was a frontier state, it embraced a “live and let live” ethos that made it more tolerant of gender diversity compared to other parts of the country.
Attorneys for the state countered that there’s no evidence that the authors of the North Dakota Constitution were accepting of transgender people or thought they had a right to obtain gender-affirming care.
In some ways, Tennessee’s ban goes farther than North Dakota’s. Tennessee’s law says the state has a compelling interest in “encouraging minors to appreciate their sex, particularly as they undergo puberty,” and takes the position that gender-affirming care “might encourage minors to become disdainful of their sex.”
Tennessee’s law also establishes a blanket prohibition on any medical procedures that “enable 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.”
By comparison, North Dakota’s law specifically bans surgical procedures and the use of drugs like sex hormones and puberty blockers to treat gender dysphoria in minors. (Gender-affirming surgeries are not performed on minors in North Dakota, according to court filings in the lawsuit.)
A final ruling in the North Dakota case is likely still months away. The judge’s decision could be appealed to the North Dakota Supreme Court.
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