In a potential sea change on how the U.S. addresses the rights of transgender people, the Supreme Court on Monday directed a number of federal courts to review their prior decisions related to several central issues of transgender rights in the wake of the Court ruling on Tennessee last week, which upended the state prohibition on gender-affirming care of minors.
The latest turn of the fast-developing and emotionally loaded national discussion about the extent to which the Constitution grants equal protection to transgender people against discrimination, especially in the case of access to medical care and legal identity determinations, is the Supreme Court directive of June 30.
The Rulings under consideration are those on health care and birth certificates.
The Court actually mandated fresh reviews on cases of state-sponsored insurance plans and Medicaids programs that do not cover gender-affirming therapies.
These cases involve a lawsuit by North Carolina and another one by West Virginia, on which the appeals courts had earlier ruled that they were discriminatory to exclude such coverage.
An Oklahoma case, in which a federal appeals court had permitted transgender people to sue the state over its refusal to change gender markers on birth certificates, is also impacted.
The justices stated that these cases need to be reassessed following the recent 6-3 decision of the Supreme Court that affirmed Tennessee ban on puberty blockers and hormone therapy in a minor.
In that decision, the states were determined to have broad discretion to regulate such treatments without infringing on constitutional proposal of equal protection under the law.
However, although the Tennessee decision of the high court has introduced new legal precedents, many questions remain unanswered, such as what the decision means to adult care of transgender individuals, bans on sports participation, rights to legal paperwork, such as birth certificates and driver licenses.
What the Lower Courts Used to Say
In the 4 th U.S. Circuit Court of Appeals, there had been a ruling by the judges that West Virginia and North Carolina denied the rights of transgender people by failing to fund some of their treatments in the public health insurance programs in the two states.
The Medicaid program in West Virginia was prohibited to cover so-called transsexual surgery, with the argument that it was costly and its effectiveness was uncertain in the long run.
The state employee health plan of North Carolina did not cover any treatment that resulted or was related to sex change or alteration on the grounds that the state had to make hard decisions in managing healthcare costs.
The appeals court did not concur. A divided panel ruled that said exclusions are discriminatory based on sex and gender identity which is unconstitutional. The panel also declared that the ban by West Virginia was a violation of the federal laws such as Medicaid Act and the Affordable Care Act.
The 9th Circuit Court of Appeals also enabled a transgendered woman in Idaho to bring an action against the state Medicaid office over its refusal to provide sex-reassignment surgery. That decision has to be reviewed.
Birth Certificates—Oklahoma Case Also Returned
In an independent case in Oklahoma, the 10 th U.S. Circuit Court of Appeals had decided that three transgender residents should be allowed to change the gender marks on their birth certificates.
The court overturned the executive order of Governor Kevin Stitt in 2021, which prohibited such changes. According to the panel, the policy was probably unconstitutional under the equal protection clause of the Constitution and lacked a legitimate state interest.
Oklahoma officials stated that keeping the original gender marker was the best option of retaining the accuracy of birth statistics. The appeals court ruled, however, that was not a strong argument since the original certificates remained on file and could be used in statistical purposes.
The court also added that the issue of the state being concerned about transgender athletes in women sports would still be solved through the unaltered birth certificates when the need be.
Transgender Advocates React to Court Decision as a Regressive Step
Advocates of LGBTQ+ rights termed the act of the Supreme Court of sending the cases back to the lower court as a matter of concern, particularly after the Court decided against the ban on the treatment of transgender minors in Tennessee.
“This is the preference of cruelty over care,” said one advocate in steps of the Supreme Court. This Court even had the opportunity to say that transgender people are equal under the law. Rather they opted to cause more chaos and protract.
The recent move by the Supreme Court also leaves lower courts confused as to how they are to interpret the Constitution regarding the issue of transgender rights.
Law professor Kelsey Hartwell of Georgetown University said, “The Court has now stated that states possess some power to regulate gender-affirming care, yet we remain unsure just how far that power extends.” Is it just a case of minors? Or may states prohibit coverage even of adults?
What Follows
The circuit courts of North Carolina, West Virginia, Idaho, and Oklahoma are now forced to reconsider their previous rulings.
They will have to balance the Tennessee decision of the Supreme Court and decide how, or to what extent, it makes their earlier conclusions regarding equality and discrimination different.
The implications of the outcomes can be extensive because more than two dozen states already have laws or policies that restrict gender-affirming care, limit access to legal recognition, or fail to cover transgender health care in public insurance plans.
The resulting appeals may organize new reviews and possibly another set of hearings by the Supreme Court on the issue of transgender rights in case conflicting decisions are made by the different courts.
Final Thoughts
Transgender Americans are in a limbo after the legal validity of gender-affirming treatment and identity recognition became more tenuous than ever before.
The ruling of the Supreme Court this term has empowered the states to ban transgender related policies but has also provided the option that further litigation may transform the situation once again.
The question is whether transgender Americans should have equal protection as the nation struggles to answer an essential question: What is the actual meaning of equal protection?
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