Supreme Court's big trans rights case could come down to Gorsuch
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Illustration: Maura Losch/Axios
President-elect Trump vowed to limit access to gender-affirming care, especially for children. But judges he appointed may have laid the groundwork to save it.
The big picture: The first major post-election referendum on trans health care is happening Wednesday at the Supreme Court — and the issue has transcended the court's usual ideological divisions before.
- The Court is hearing arguments this morning over a Tennessee law that bans puberty blockers, hormone therapy and surgery for transgender minors.
- The justices' decision will also affect the 20-plus states with similar laws on the books, and it'll inform how the courts handle future cases on trans rights.
What we're watching: Trans people won a surprising victory in 2020, when the court — in a decision by Justice Neil Gorsuch, a Trump appointee — ruled that employers cannot fire workers because they're trans.
- The big question today is whether the logic of that decision should also apply to Tennessee's ban on gender-affirming care.
How it works: In the 2020 case, Gorsuch wrote that firing someone after a gender transition is discrimination on the basis of sex.
- "It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex," he wrote.
- Chief Justice John Roberts joined that decision, along with the court's liberal members.
- The families challenging Tennessee's law say the same thing is happening here — that the state is singling people out based on their gender identity.
- The first judge to hear the case — also a Trump appointee — agreed, ruling that the law is probably unconstitutional.
The other side: Tennessee argues that it's simply regulating medicine, based on patients' age and what the treatment is for, which falls well within states' power.
- Both boys and girls can be denied these treatments, and both boys and girls can access them if it's for another use, the state says — so the regulation doesn't draw a line based on sex.
Why it matters: If the Supreme Court decides that Tennessee law counts as sex-based discrimination, the state will have to clear a much higher bar to defend it.
- If the justices say it's simply a medical regulation, it's much more likely to survive this legal challenge.
Between the lines: There are some key differences between the 2020 case and this one.
- The earlier case hinged on a line in federal law that explicitly bans employment discrimination on the basis of sex.
- Gorsuch cast his ruling as an exercise in textualism — the statute prevents sex discrimination, and if you fire someone just because they changed their sex, that's sex discrimination.
- The Tennessee case doesn't lend itself to the same kind of textual analysis, leaving plenty of room for the conservatives to carve out a new, more restrictive interpretation if they want to.
Even so, trans rights are 1-0 in major Supreme Court cases, and if there's a roadmap for another victory this time, it's one that Gorsuch drew up.
Go deeper: Trump win emboldens GOP's anti-trans blitz
