When the Supreme Court hears the appeal from transgender youths challenging a Tennessee ban on their medical care, fundamental principles forbidding sex discrimination will be on the line. The justices’ view of whether landmark decisions tracing back a half-century apply to transgender rights will affect more than the access of young people to puberty blockers and hormone treatments.
At the case’s core is the crucial question of how much judicial scrutiny laws regarding transgender individuals demand. The legal standards invoked by black-robed jurists may seem dry and arcane. But in a case testing the reach of the Constitution’s equal protection guarantee, those standards set the terms of the debate and determine which side has the greater burden to prove its case.
Should regulations on transgender issues be regarded as a type of sex discrimination warranting “heightened scrutiny” and an important governmental interest to justify them, as the Biden administration and transgender advocates argue? That’s how some federal judges have seen it as they’ve struck down anti-trans policies, including those preventing minors from obtaining gender-affirming care.
Or should a ban on transgender care be subject only to “rational basis” review, which requires a state to show that it is rationally related to a legitimate governmental interest? This method usually applies to commonplace business rules and requires judges to defer to state legislators.
The answer to this threshold issue in Wednesday’s case will go a long way to determine the protections afforded transgender Americans in the future.
