Supreme Court Showdown, Transgender Rights Crisis, and the Battle for Gender-Affirming Care

Uncover the potential future of transgender rights in the United States as we tackle the landmark Supreme Court case, United States v. Scrimetti. 

Join Jessie McGrath in this episode, which promises to equip you with a comprehensive understanding of the ways this significant legal battle over gender-affirming care for minors in Tennessee might reshape the landscape of transgender healthcare rights.

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Chapters

• 0:00 Supreme Court Case on Transgender Rights
• 17:01 Transgender Rights and Supreme Court

Transcript

Speaker 1: 0:00

This is the Transparency Podcast Show. Hi and welcome to the Transparency Podcast Show. I'm your host for today, jesse McGrath. We have a little bit different vision for today because I don't have a guest. Instead, what I want to do is talk to you today about an upcoming United States Supreme Court case, and that is the case of the United States v Scrimetti. And this is a case that comes out of the state of Tennessee and it involves gender-affirming care for minors, and this is going to be argued and this is going to be argued.

Speaker 1: 0:43

The US Supreme Court term started the first Monday of October, so today is the day of the start of the US Supreme Court term, where they're going to hear cases, and they have granted what is called certiorari for this case, which means they've agreed to hear it, and so I wanted to take a little bit of time to discuss the importance of this case and why we're here and how we got here. So to do that, we kind of have to go back a little bit in time and, if you recall, back in 2015, there was the HERO amendment in Houston, and in 2016, there was HB2 in North Carolina, which sought to ban trans people from using bathrooms. Now, the HERO Amendment in Houston was overturned, but the North Carolina one was actually voted out because there was a large uproar, there were boycotts of North Carolina and they eventually had to back down and, in fact, that bill costs the governor his governorship and he was defeated in the subsequent election. So what happened was is the groups that oppose trans people and that includes groups like the Family Research Council, the American Principles Project, the Alliance Defending Freedom all right-wing religious organizations started out from Dobson and focus on the family. So they have gotten together and have decided that attacking the adults who are trans was not something that was very effective because it cost them politically, so they decided to come after kids, and so, if you look at what has transpired over the last few years, it's gone from going after everyone to focusing on trans kids because they think that's what they can do.

Speaker 1: 2:53

I started my transition in 2015, and right at the same time, the Family Research Council came out with guidelines. That was understanding and responding to the transgender movement, and in that they discussed how they could politically come after trans people to make us not be able to exist in society, and so they have been working with all of these other groups and if you've been paying attention at all to transgender issues in this country, you've seen us go from having basically 10, 15 laws introduced to states to this year having over 500 cases. Now this case out of Tennessee, and what they're going to be deciding on is whether Tennessee's Senate Bill 1, they're going to be deciding on is whether Tennessee's Senate Bill 1, which prohibits medical treatments intended to allow 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 a minor's sex and asserted identity, violates the Equal Protection Clause of the 14th Amendment. And so that is what has been done. In a lot of other states Statutes very similar to this, and so this case is coming up and it's very important because over the last six years we've seen a deluge of cases involving trans health care and involving trans minors health care. It's mostly affected them, but there are states like Florida which directly attack adults' right to transgender health care. So this is a very important case that's coming up here because what they're going to do in this case is determine what is the appropriate standard of review that they will undertake to review these restrictions on trans rights and there are three types of review that the Supreme Court can do on an equal protection case.

Speaker 1: 5:04

Now, I did take con law in law school and I did do a little bit of work in relationship to constitutional law and I am admitted to practice before the Supreme Court. But I am no constitutional scholar and so this is not going to be an in-depth look at everything, but I just want to let people know these are the three areas that they can put to review these cases and which one they put trans health care under is going to have a big effect on whether or not trans health care can be blocked or whether it's a right that we as trans individuals have. So let me talk a little bit about, just give you the basics. There's a rational basis test, which is the least restrictive one of those. There's an intermediate review, which is there has to be more proof by the state, and then there is strict, which means that it has to be narrowly tailored and it has to be specific to that. There has to be much more than some type of idea by it. It must be a compelling state interest and it has to be very narrowly tailored. Now for me as a trans person. I am really hoping that we get strict scrutiny review on this, because that is the highest level of review.

Speaker 1: 6:32

But let's start with rational basis, and we have a slide that describes what this is, and it's basically a rational relationship between the disparity of treatment and some legitimate government purpose. And what's important about the rational basis is there's a presumption of constitutionality, and so we, as people challenging this particular law, we have to be able to show that the legislative arrangement that they have, we have to negate every conceivable basis under which it could possibly apply. And that is a very difficult standard to come under. And so we have had some cases at the district court level and, just so everyone knows, the courts are broken up into different levels, especially in the federal court system. There is the district court, which is the local jurisdiction. There is the court of appeals, which is a number of states grouped together, and the district court decisions that are decided in that If those are appealed, they go to those circuit court of appeals. And then there is the US Supreme Court, and so we have had a number of cases where they have found, even under the rational basis standard, that there is not a basis to be able to do that, and so those have been good cases.

Speaker 1: 8:03

But there have been other cases where and generally on the district court level they have gone with an intermediate scrutiny analysis on this and most of the time on the district court level these laws are found to be unconstitutional and injunctions are done against them. But then it goes to the next level, which is the court of appeals, and so that is where the decision is made. That binds all of those states. Here in California we're in the Ninth Circuit. Where I live also in Nebraska is the Eighth Circuit, and I believe that Scrimeti is coming out of the Sixth Circuit, and when there is division between the different circuits or it's a really compelling constitutional issue, the Supreme Court will take that up. So we have the rational basis standard and then we have an intermediate scrutiny. Now on the Scrimetti case, when that was reviewed by the Sixth Circuit, they held it was strictly rational basis and they found it's perfectly fine to be able to discriminate against trans kids in gender-affirming care, and so that was taken up. Now in other jurisdictions there are cases pending also. Now Scrimeti was an appeal from the preliminary injunction that was granted by the district court. In the Eighth Circuit. There is actually a case that is pending before them which went all the way through trial, had a very excellent decision by the trial court judge, has been argued to the Eighth Circuit and we have not yet gotten the appeal out of that, so we don't know what. I think they may be waiting until the Supreme Court comes down for the standard of review, but I think we're going to get a decision out of them before that and we'll see if there's more of a division between the different jurisdictions.

Speaker 1: 10:00

The next level is intermediate scrutiny, and intermediate scrutiny is a statutory classification that must be substantially related to an important governmental interest and it has to be more than a merely non-arbitrary or rational. It must be substantial and it must be more than merely valid or permissible. It must be important. So if we go under this standard, the facts of gender-affirming care the purported interest is protection of children is what has been used in all of that and that it has to be more than something that is arbitrary or rational. And in this case they just argue that there's not enough evidence, there haven't been random clinical trials, there's a whole slew of issues that they tend to just use as justification for these, but when most of the appellate courts have reviewed it, they found that these are not substantial. For example, one of the things that the gender affirming care bans do is prohibit the use of puberty blockers, but they only prohibit the use of those puberty blockers for trans kids. For other kids, it's perfectly permissible to do that, and so the rational basis is if it's okay for one group of kids and it's not okay for another group, it's what is that basis? And it's simply they don't like trans people and so that's not going to be. Hopefully, if it's applied correctly, will not be used to uphold those laws.

Speaker 1: 11:44

And the third level is strict scrutiny, and this is the one that is the most important for us as trans folks if we could get them to apply this and that is that there has to be something much more important than a regular basis. It must be something that is very compelling and it must be necessary in order to achieve the objective, and they have to decide whether there's any less discriminatory means of achieving that goal or the law will be struck down. So this is the type of situation where it really has to be incredibly important. Now, in the past, this has been mostly used for laws on the basis of color and sometimes in sex. So whether we're going to be found to be what they call a suspect class, that is, a class of individuals who are targeted for laws on a basis of discriminatory intent which is entirely possible to make that argument for trans people because we have been the targets of specified legislation by particular groups who are coming after us solely for the purpose of ensuring that we do not have fair and free participation in society. So there is a very good argument that we would get strict scrutiny.

Speaker 1: 13:30

So I have been in the process of reviewing what are called amicus briefs. Those are also called friend of the court briefs. These are briefs that are put together by various organizations and groups to give guidance to the Supreme Court and their law clerks, who are the ones who have to read all of these about the case and what their views are. Now I'm privileged to be a part of two of the amicus briefs that have been submitted before the court, and so I am familiar with the contents of those. One is for the plaintiffs. There was a similar law that was passed in a neighboring state and it's the parents of those kids, glaad and various organizations and me as part of the National Trans Bar Association. We signed on to that amicus brief and contributed to that, and I'm also on a brief that is spearheaded by the former National Transgender Legal Defense and Education Fund, tdlf, and it put together a group of individuals including Lana Wachowski and Elliot Page, nicole Mains, ms Major, chris Moser, the triathlete, jenny Boylan, the author, sarah McBride, a woman who's going to become the first trans congresswoman, and I'm one of the people included on that brief, so I'm familiar with that, and in that we talk about the benefits that we received in life from gender-affirming care.

Speaker 1: 15:06

But there is a whole, whole list of a whole bunch of other ones and I have been in the process, and so this is just. There's three or four pages of these briefs and they are very lengthy and long, but I am going through the process of reviewing all those and I hope to be able to, before the argument date is announced, be able to come back and describe what I think the Supreme Court might do on this case based on these briefs. One that I found particularly interesting that I brought with me was one that was written by conservative officials and advisors, and these are a group of Republicans, former justice officials and such, and they make a very good argument that we should be getting strict scrutiny in relationship to this a very good argument that we should be getting strict scrutiny in relationship to this. So it is going to be interesting to see how this case comes together. I've looked at the opening briefs and I'm going to read the reply briefs and all of these amicus briefs to get a really good idea on what it's going to look like, and so I will hopefully come back and do that. I'm also planning on going to attend the oral argument. As a member of the US Supreme Court bar, I can get admittance in to watch the hearing and I fully intend to go back to DC once that date is announced.

Speaker 1: 16:34

So we've got a lot of things coming up and there's going to be a lot of angst in the community and there already is because this is probably, as a trans person, the most important US Supreme Court case that we've had since the case involving Title VII, where they struck down laws prohibiting employment discrimination on the basis of trans status.

Speaker 1: 17:01

So I found online there's a handy-dandy little chart that you can use here what level is needed, what the state interest has to be and the relationship to that so you can get a little bird's eye kind of overview of what the strategy or what the scrutiny levels are for each of these levels and hopefully we're going to get the one that will give us the most protections, because this truly is the most important Supreme Court case for our existence, because if they come down with a rational basis decision on the 14th Amendment and equal protection, we lose and the states will be able to do things like take away our identity documents that have previously been issued. There are states that are in the process of doing that now. So if you have lawfully changed your gender marker on your state driver's license, they want to reverse that. I believe the state of Texas is in the process of looking and they're going to send out new IDs so that individuals who have changed it and, like me, have female on their driver's license, they will send it back with the incorrect gender marker on there.

Speaker 1: 18:26

So that's why this case is so important is because it's going to determine, you know, what is the legitimate state interest in doing that. If they just say, well, we just like to, we want to have accurate historical documents, they're not going to look into that to see whether that's based on a discriminatory basis or whether that's just, you know, truly a record-keeping issue, because we all know it's not truly a record-keeping issue. It's a control issue. It's a way to out trans people and subject them to public ridicule and hatred, and so this is extremely important that we get the correct level of review, and I'm going to look at this very closely and I hope to get back to you. So, if you like what you hear on the Transparency Podcast Show and you want to see more stories like this and the other stories that we do, hit the like and subscribe button and join us as part of the Transparency Podcast Show family.