By Andrew Chung
(Reuters) -Transgender minors. Transgender soldiers. Transgender characters in books.
The U.S. Supreme Court’s latest term was bursting with fodder for America’s culture wars, few more so than three cases touching on transgender rights. The court, powered by its 6-3 conservative majority, in each case ruled against transgender plaintiffs or their interests more broadly.
The court on June 18 upheld Tennessee’s ban on medical treatments for minors with gender dysphoria. The court on May 6 granted Republican President Donald Trump’s emergency request to let his ban on transgender people in the military take effect. And on June 27 it permitted parents to keep their children out of classes when storybooks with LGBT characters are read.
The three liberal justices dissented in all three cases.
“If you were gay or transgender,” said John Malcolm, a legal scholar at the conservative-leaning Heritage Foundation think tank, the rulings represented “clear losses.”
These outcomes – along with other decisions that split along ideological lines to back restrictions on abortion provider Planned Parenthood and limits on access to online pornography – showed the majority’s willingness to rule on polarizing matters as the court continues to steadily push U.S. law to the right.
These cases, according to Malcolm, also showed that, at least in litigation involving governmental policies toward transgender people and minors more generally, the court will “cut a lot more slack” to judgments made by legislators. The Tennessee case, for instance, involved a measure passed by the Republican-controlled state legislature that challengers said violated the U.S. Constitution’s 14th Amendment promise of equal protection.
The court, which issued the final rulings of its nine-month term last Friday, could as soon as Thursday take up for its next term beginning in October another major transgender rights issue involving challenges to state laws banning transgender athletes from female sports teams in public schools.
‘CULTURE WARRIORS’
The court often has been a battleground for culture war issues. The addition in 2020 of conservative Justice Amy Coney Barrett, the last of three Trump appointees from his first term as president, gave the court its current ideological makeup.
Since then, conservative priorities have won big in rulings rolling back abortion rights, widening gun rights, expanding religious rights and rejecting race-conscious university admissions policies.
“They are not … umpires in this war, they are culture warriors,” University of Chicago constitutional law professor Mary Anne Case said of the court’s conservatives.
To liberals, the court has become a place to “cut our losses there rather than make progress,” said Case, who specializes in the law of rights and equality.
This term’s rulings suggest that the target is not just transgender rights, Case added, but “the whole network of rights of liberty and equality when it comes to sex, gender and sexuality.”
One exception to the recent trend was a 6-3 ruling in 2020, written by conservative Justice Neil Gorsuch 4-1/2 months before Barrett joined the court, in which it decided that U.S. law protects gay and transgender employees from workplace discrimination.
TENNESSEE LAW
The Tennessee law upheld by the court bans gender-affirming medical treatments such as puberty blockers and hormones for people under age 18 experiencing gender dysphoria. The court’s conservatives rejected an argument that the measure unlawfully discriminated against these adolescents based on their sex or transgender status.
Gender dysphoria is the clinical diagnosis for significant distress that can result from an incongruence between a person’s gender identity and sex assigned at birth.
That ruling “will undoubtedly encourage opponents of LGBTQ equality to continue enacting laws that deny transgender individuals equal opportunities,” Rutgers Law School Professor Carlos Ball said.
“For LGBTQ rights supporters,” Ball added, “the ruling is a reminder that most of the hard work on behalf of protecting the rights of transgender people is social and political rather than legal.”
The court also sided with Christian and Muslim parents seeking to shield their elementary school children from exposure to storybooks with LGBT characters and themes that a Maryland county public school board approved to reflect the diversity of local families.
The use of these storybooks in classes, conservative Justice Samuel Alito wrote in the ruling, “poses ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill.” Alito highlighted characters from some of the storybooks including a transgender boy, a non-binary child and an uncle marrying his same-sex partner.
In allowing the transgender military ban to take effect, the court gave Trump a victory but did not resolve the policy’s legality while litigation challenging it plays out in lower courts. The transgender troops who challenged the ban contend that it violates their equal protection rights.
The conservative justices powered some other key rulings in contentious cases.
They cleared the way for South Carolina to strip reproductive healthcare and abortion provider Planned Parenthood of funds through the Medicaid government insurance program. They also backed a Texas law that requires pornographic websites to verify the age of users in an effort to protect minors, a measure challenged by the adult entertainment industry as a violation of the free speech rights of adults.
Conservative Chief Justice John Roberts has guided the court since 2005.
“The Supreme Court is a very conservative court, and it’s way more conservative than it was six years ago,” Yale Law School Professor William Eskridge said.
“Within the parameters of what the Republican Party wants to do, the Roberts Court is going to go along,” Eskridge said.
The Heritage Foundation’s Malcolm said it would be inaccurate to believe that the rulings by the justices have been a pretext for their policy or social judgments.
“These opinions are manifestly correct,” Malcolm added.
RELIGIOUS RIGHTS
Two religious rights cases drew attention during the term.
The court issued a 4-4 ruling, with Barrett not taking part in the case, on a bid led by two Catholic dioceses to establish in Oklahoma the nation’s first taxpayer-funded religious charter school. The split left in place a lower court’s decision blocking the school. The issue is likely to return in a future case.
The court in another case ruled 9-0 to endorse a bid by an arm of a Catholic diocese in Wisconsin for a religious exemption from the state’s unemployment insurance tax.
That was not the only important case touching on culture war issues in which the court managed to bridge its ideological divide. It ruled 9-0 to make it easier for people from majority backgrounds such as white or straight individuals to pursue claims alleging workplace “reverse” discrimination.
In another 9-0 ruling, the court spared two American gun companies from a lawsuit by Mexico’s government accusing them of aiding illegal firearms trafficking to drug cartels.
And in a 7-2 ruling with four conservative justices and the three liberals in the majority, the court upheld a federal regulation cracking down on largely untraceable “ghost guns,” typically purchased online to be assembled at home.
(Reporting by Andrew Chung in New York; Editing by Will Dunham)
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