The Supreme Court Intervened On Gender-Affirming Care Ban For The First Time — And There’s Reason For Alarm

The Supreme Court on Monday allowed Idaho to begin enforcing a state law barring to figure out how to help their children continue their care.

Nowlin-Sohl said advocates are currently looking into what options are available to ensure that trans Idahoans are able to access care, which most major American medical associations deem medically necessary.

Since 2019, there has been a coordinated effort from a coalition of right-wing organizations, legislators and Alliance Defending Freedom attorneys to push anti-LGBTQ laws aimed at curtailing the rights of transgender people. Idaho in particular has been a fruitful test site for conservative movement.

Idaho is now the 24th state to adopt a ban on gender-affirming care. Most of these bans face legal challenges.

On Tuesday however, an appeals court stopped West Virginia from enforcing its ban on transgender athletes in girls’ sports, and an Ohio court temporarily blocked its ban on gender-affirming care.

While several U.S. district courts have blocked bans from taking effect amid the deluge of anti-LGBTQ legislation, three U.S. courts of appeals have still allowed bans to take place in Alabama, Georgia, Tennessee and Kentucky.

In many of these cases, the central question is around whether these bans on gender-affirming care for minors violate the Constitution.

But the Idaho attorney general’s request for emergency relief skirted around this question and instead tried to stop the lower court’s universal injunction of the ban.

Shannon Minter, the legal director of the National Center for Lesbian Rights, said some conservative justices have recently changed the historical usage of the so-called “shadow docket,” where parties ask for emergency relief, as Idaho did in this case.

“Historically, when civil rights plaintiffs challenge discriminatory laws, and allege that they are unconstitutional, courts enjoin enforcement of the laws against anyone, not just against the individual plaintiffs,” Minter said. “If a law is unconstitutional as applied to a class of people, there’s no legal reason to restrict a ruling to that effect to the individual plaintiffs. That’s a very ordinary application of law in a civil rights lawsuit.”

But the opinions issued Monday revealed a heated debate among the justices over if and when they have the authority to block broad enforcement of a law — with little mention about the constitutionality of the ban itself.

The courts have disagreed on this issue before — and the question of the scope of a law has come up numerous times in cases involving anti-LGBTQ legislation. After a lawsuit filed by Florida restaurant and drag bar Hamburger Mary’s temporarily blocked a statewide drag ban, state lawyers tried to make the argument that the injunction should be limited to Hamburger Mary’s alone and nowhere else.

In the Idaho case, Justice Neil Gorsuch wrote in his concurring opinion that the scope of the ban “poses a question about the propriety of universal injunctive relief — a question of great significance that has been in need of the Court’s attention for some time.”

Gorsuch, a conservative judge appointed by Donald Trump, said the court should exercise more caution with the use of universal injunctions going forward, noting the rise of lower courts issuing that kind of ruling, especially during Donald Trump’s presidency and through the pandemic.

“In recent years, certain courts across the country have not contented themselves with issuing equitable orders that redress the injuries of the plaintiffs before them, but have sought instead to govern an entire State or even the whole Nation from their courtrooms,” Gorsuch wrote.

Justice Brett Kavanaugh, along with Amy Coney Barrett, argued that the court’s willingness to grant emergency relief will generally hinge on whether or not the justices think the party asking for relief will be successful when the court reaches its final decision.

Though Kavanaugh does not explicitly discuss the constitutionality of Idaho’s law, Vox’s Ian Millhiser wrote that his concurring opinion suggests that Kavanaugh believes Idaho will have a “likelihood of success on the merits” when the question of the legality of the bans eventually reaches the Supreme Court.

Justice Kentanji Brown Jackson, in her dissenting opinion, wrote that she found Idaho’s request to the court to intervene on the scope of the ban’s enforcement while a lower court proceeded to be “troubling.” She wrote that the question of a child’s access to gender-affirming care is “a serious and consequential matter.”

In November, the ACLU, Lambda Legal and other groups petitioned the Supreme Court to review the 6th Circuit’s decision to allow Tennessee and Kentucky’s own bans on gender-affirming care for minors to take effect.

The court hasn’t signaled whether or not it will take up these cases this year, and has already rescheduled their reviews five times this year.