Headed to the Supreme Court? Gender-Affirming Care for Transgender Youth

by Kate Brewer, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

A current compelling issue arising in courts around the nation is the constitutionality of legislative bans on gender-affirming care for transgender youth. The legislative bans on gender-affirming care that some states have implemented restrict the ability of transgender minors to receive lifesaving medical and mental health treatment. Due to a circuit split on this novel issue, the issue of the constitutionality of legislative bans on gender-affirming care for transgender you will likely wind up before the Supreme Court, leaving the justices to decide whether such bans are constitutional under the Fourteenth Amendment.

Part II of this article explores the Supreme Court’s application of the Fourteenth Amendment’s Equal Protection and Due Process Clauses, what constitutes “gender-affirming care,” and the recent judicial split regarding “gender-affirming care.” Part III of this article covers the most pertinent constitutional concerns that are raised by these legislative bans and discusses what course of action the Supreme Court should take when deciding such issues. Part IV concludes by summarizing the arguments against these legislative bans and urging the Supreme Court to hold them unconstitutional under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

II. Background

A. The Fourteenth Amendment and Levels of Scrutiny

The Fourteenth Amendment consists of two clauses, the Due Process and Equal Protection Clauses, which serve to protect individuals from various intrusions on their individual rights.¹ The Due Process Clause of the Fourteenth Amendment requires that government actors follow certain legal procedures before depriving an individual of their right to life, liberty, or property.² While some interpretations of this clause are particularly textualist and narrow, other interpretations follow the “substantive due process” approach. A substantive due process approach contends that a person’s constitutionally protected right to life, liberty, and property goes beyond the direct meaning of the text and includes much broader concepts³ Some people believe that fundamental rights which are “deeply rooted” in the history and tradition of our nation are protected under substantive due process; these have included the right to privacy, the right to abortion, and the right to marry individuals of the same sex or of a different race.⁴The ideology a court follows in terms of interpreting the Due Process Clause may be indicative of what decision they will come to when determining whether there is a due process violation. If a court follows the substantive due process doctrine, the court is more likely to recognize a wider range of fundamental rights to be protected.

The Equal Protection Clause restricts government actors’ abilities to discriminate against individuals.⁵ In other words, states must govern impartially and cannot treat individuals differently through the use of irrelevant classifications or distinctions.⁶ A law that discriminates on the basis of a protected category such as sex, race, or religion is subject to a more in-depth review.⁷ In general, a court may apply three levels of scrutiny in ascertaining whether a particular piece of legislation violates the Equal Protection Clause of the Fourteenth Amendment, which includes strict scrutiny, intermediate scrutiny, and rational basis review.⁸

Rational basis review is the lowest level of scrutiny that a court may apply in an Equal Protection Clause violation analysis.⁹ Rational basis requires that the means of the legislation have a rational connection to a legitimate state interest.¹⁰ Being that this level of scrutiny is the least stringent, it is relatively easy to pass.¹¹ This level of scrutiny is typically used for cases where there is no issue of fundamental rights or suspect classification.¹²

The next level of scrutiny is intermediate scrutiny, which is utilized when governments pass legislation that discriminate against a protected class such as gender.¹³ The challenged legislation must further an important government interest by means that are substantially related to that interest in order to be upheld as constitutional under the Fourteenth Amendment.¹⁴ Several of the landmark cases for intermediate scrutiny involved gender discrimination, such as Craig v. Boren where the intermediate scrutiny test originates from.¹⁵ In that case, Oklahoma passed a law prohibiting the sale of certain beers to males under twenty-one and females under eighteen, thereby differentiating drinking ages for the respective sexes in response to statistics that showed that men were more likely to be involved in traffic safety violations.¹⁶ The law was struck down and the Supreme Court found that the statistics relied upon for the legislation were insufficient to show a substantial relationship between the law and the interest of traffic safety, resulting in generalities based on sex.¹⁷ In U.S. v. Virginia, the Supreme Court specifically required, at a minimum, that the legislation serve a legitimate government interest, the justification be exceedingly persuasive, and the justification must not rely on an over-broad generalization about the sexes.¹⁸

The most stringent level of scrutiny is strict scrutiny.¹⁹ Strict scrutiny is triggered when legislation is challenged for discrimination based on a suspect classification such as race or religion, or if the legislation infringes upon a fundamental right; it requires that the legislation be narrowly tailored to achieve a compelling government interest.²⁰ Legislation rarely passes the strict scrutiny test because the “narrowly tailored” standard requires a very close fit between the legislative means and the targeted goal.

B. Defining Gender-Affirming Care

Gender-affirming care is described by medical authorities as life-saving healthcare for all age-groups of transgender individuals.²¹ Often, transgender individuals live with symptoms of gender dysphoria, which may result in mental distress.²² Gender-affirming care consists of a range of services including medical, mental health, and social assistance to help treat these symptoms and concerns.²³ According to the Human Rights Campaign, gender-affirming care is always delivered in “age-appropriate, evidence-based ways,” and is considered medically necessary to support the transgender population by every major medical and mental health organization.²⁴

The most important fact to consider is that no permanent medical interventions happen for transgender individuals until they are of age to give informed consent.²⁵ Select medical treatments only become available to minors after “significant consideration and consultation” between the minor, their guardians, and their health care provider.²⁶ One of these medical treatments is puberty blockers, which are safe, fully reversible, and lifesaving treatment options in terms of mental health.²⁷

Another option is gender-affirming hormones, which are synthetic versions of testosterone or estrogen prescribed to help an individual’s body develop in a way that coincides with their gender identity. However, these are typically not prescribed until a person is at least 18 years old, with some exceptions for individuals in their late teens after their informed consent is provided, their physician approves, and their parents’ consent.²⁸ Additionally, gender-affirming hormones are usually prescribed after being on puberty blockers and being “socially transitioned.”²⁹ These hormones are also considered safe and may be fully or partially reversible depending on the circumstances.³⁰

A more permanent option for transgender individuals is gender-affirming surgeries. However, this is typically not an option for transgender youth.³¹ In rare instances, late teenagers have had gender-affirming surgeries, but this is limited only to those who have been “consistent and persistent” in their gender identity for many years, have been taking gender affirming hormones for a while, and had informed consent discussions with approval from both their parents and doctors, or for those for whom the surgeries are deemed clinically necessary after consulting with parents and doctors.³² Once an individual transitions, it is unusual that they will “detransition” or seek to reverse the effects of their transitioning.³³

C. Recent Jurisprudence on Gender-Affirming Care

Recent decisions out of Alabama and Georgia courts present a split in judicial opinion on the constitutional right to gender-affirming care for transgender youth. The Eleventh Circuit Court of Appeals found that there is no constitutional right for parents to treat their children with “transitioning medications.” This holding thwarted a challenge to an Alabama law banning the use of puberty-blocking medication in transgender minors.³⁴ One of the judges on the fully Trump-appointed panel cited a “compelling interest in protecting children from drugs,” and concerns over “irreversible effects.”³⁵ The appellate court found that the district court erred in applying intermediate scrutiny to the due process claim and instead held that the issue should have been analyzed under rational basis review, which the state of Alabama satisfied by presenting evidence to support a legitimate state interest in protecting children.³⁶ The court found that there is no constitutional right to treat children medically with hormone blockers and other gender-affirming treatments under the fundamental right of parental care and control.³⁷

This decision came only a day after a U.S. district judge issued an injunction to block a similar law in Georgia.³⁸ The court in this case applied intermediate scrutiny under equal protection concerns based on the Eleventh Circuit’s precedent, finding that the law in question drew distinctions based on both sex and gender.³⁹ The court decided that the legislation banning gender-affirming care was not likely to serve the state interest in protecting children, nor was it substantially related to an important government interest.⁴⁰ The court gave weight to the fact that all medical treatments carry risk, and the decision to treat a patient is a result of a medical professional’s analysis and expertise.⁴¹ The state presented insufficient evidence that transgender individuals regretted their decision to undergo hormone treatment.⁴² The Georgia Attorney General plans to appeal the decision, which will be heard by the Eleventh Circuit Court.⁴³

Various states have enacted similar laws, with some being upheld and others being blocked by court rulings due to issues of sex discrimination and interference with parental rights to dictate medical treatment for their children. Recently, the Eighth Circuit refused to reinstate such a law in Arkansas,⁴⁴ but a similar ban was upheld in Tennessee.⁴⁵ Additionally, the Biden Administration has taken measures to explicitly prohibit discrimination on the basis of sex, gender identity, or orientation, even directly condemning such discrimination against transgender youth.⁴⁶ President Biden expressed his dissent on Texas’ statute banning gender-affirming care for minors, stating that he cannot support legislation that puts children’s lives at risk.⁴⁷

It is unclear how a predominantly conservative Supreme Court would respond to the issue of largely Republican-backed bans on gender-affirming care for minors, especially since they have taken steps away from following precedent like that of substantive due process in recent years.⁴⁸ However, one thing that is clear is that these conflicting decisions coming from various courts, and its current relevance in the political arena opens the door for the issue of gender-affirming care for transgender youth to be brought before the U.S. Supreme Court.

III. Discussion

With the predominant debate over the constitutionality of gender-affirming care for minors specifically regarding equal protection violations and the substantive due process right of parental control in their child’s medical care, it is likely that the Supreme Court would assess the matter under the Fourteenth Amendment. As a matter of medicine, gender-affirming care is widely regarded by professionals as safe, effective, and legitimate.⁴⁹ Therefore, statutes restricting a parents’ right to opt-into such treatment for their children seems unconstitutional on its face. However, some courts decided that that bans on such treatment do not unconstitutionally discriminate against transgender children. Lately, the U.S. Supreme Court has been modifying the traditional interpretation of the Fourteenth Amendment’s Equal Protection Clause, as seen in its recent ruling against affirmative action admission policies at universities.⁵⁰ As U.S. Circuit Courts reach different decisions about the constitutionality of these bans, the issue will likely end up at the Supreme Court. There is urgency in the eyes of transgender care organizations and parents of transgender children, as evidence has shown that gender-affirming care can be essential in the mental health and wellbeing of transgender youth.⁵¹

A. The Equal Protection Clause

The Department of Justice holds the opinion that restrictions on gender-affirming care for minors are discriminatory on the basis of gender-identity and violate the Fourteenth Amendment’s Equal Protection Clause.⁵² The Department of Justice argues that such bans discriminate on the basis of sex by prohibiting treatments only for one sex, such as prohibiting testosterone treatment for children assigned female at birth.⁵³ This article takes the same stance and asserts that there is a sex discrimination concern when it comes to bans on gender-affirming care for minors.

The Equal Protection Clause of the Fourteenth Amendment promises that individuals receive “equal protection of the law.” Over time, the Supreme Court has made it clear that this clause protects individuals from government discrimination on the basis of race, sex, and other “suspect classes” by analyzing these cases with heightened scrutiny. Given that legislation based on gender rather than sex is relatively recent, it is likely that classifications on the basis of gender would be treated with similar scrutiny to that of classifications on the basis of sex – intermediate scrutiny.

This would require state governments to show that their specific interest in protecting children is an important one, not hypothetical or unfounded.⁵⁴ They would need to show that gender-affirming care for minors poses a legitimate danger to that interest, and this argument would need to be exceedingly persuasive.⁵⁵ Upon engaging in a balancing test to determine whether these bans on gender-affirming care of minors serves the end of protecting children, and whether a less discriminatory one could also serve that interest, the Supreme Court should find that this level of legislative restriction is overbroad, extreme, and unnecessary.

As established above, it is widely asserted by medical authorities that gender-affirming care for minors, as it exists presently, is safe.⁵⁶[1] Not only is it considered safe, but it is also considered necessary and lifesaving for the minor transgender population. Without reliable expert testimony asserting that gender-affirming care is a danger to the safety of children, government arguments will fall short. Thus, crafting discriminatory legislation around this unfounded concern seems to certainly violate the Equal Protection Clause of the Fourteenth Amendment.

However, if the court does find there to be a legitimate and important interest in protecting children, it can still be argued that banning gender-affirming care, which is inclusive of many different aspects of healthcare, goes beyond what is reasonable to protect this interest. Less extreme restrictions on what medical treatments and surgeries can be performed on minors would be more palpable, such as total bans on irreversible gender-affirming surgeries for anyone under the age of eighteen, despite their current rarity. Seeing that less restrictive legislation could be passed to maintain the same legitimate interest in protecting children rather than total bans on gender-affirming care for minors, the bans should not pass the least restrictive means test. Therefore, any law fully banning gender-affirming care should be held unconstitutional on equal protection grounds.

B. The Due Process Clause

The Supreme Court has recognized relatively few fundamental rights under the Due Process Clause of the Fourteenth Amendment. However, some of these rights include the right to get married, to live with others as a family, to have bodily autonomy, and to parent your children.⁵⁷ The right to raise and parent your children is one that has been long established and reaffirmed time and time again.⁵⁸ Thus, due process concerns are likely raised by laws that interfere with a parent’s ability to dictate their transgender child’s medical treatment without genuine safety concerns.

When deprivation of the exercise of fundamental rights exists, the Supreme Court has traditionally applied strict scrutiny consideration to the legislation, asking whether it is closely related to a compelling government interest by the least restrictive means possible. Here, various state legislators have regularly cited a government interest in “protecting children,” however, they have struggled to present concrete evidence to back this claim in the eyes of some courts.⁵⁹ Seeing that major medical associations and organizations assert that gender-affirming care for minors is not only safe, but necessary, the Supreme Court is unlikely to hold that the government interest of protecting children is served by the least restrictive means possible through statutes banning such care.

However, the Supreme Court has been moving away from the expansive concept of “substantive due process” in recent years. This move follows the decision from Alabama. Without substantive due process, a court is more likely to interpret the Due Process Clause less expansively including those that are considered fundamental, and instead focus on the strict definitions of “life, liberty, and property.” Therefore, it is difficult to determine how the Supreme Court will rule on this issue when applying the Due Process Clause of the Fourteenth Amendment. In light of medical expertise and the precedential doctrine of substantive due process, the Supreme Court should come to the conclusion that broad bans on gender-affirming care for minors violates the Fourteenth Amendment Due Process Clause.

IV. Conclusion

Recently, the Supreme Court has exhibited a willingness to diverge from long-standing precedent. However, this article asserts that the Supreme Court should continue to look to precedent for these Fourteenth Amendment concerns and strike down the legislative bans against gender-affirming care for transgender minors, that infringe on parental rights and are not narrowly tailored to serve the claimed interest in protecting children. The right to protection against sex-based discrimination is one that Americans have come to expect and rely on, and the right for parents to make decisions for the best interests of their own children is one of the oldest recognized fundamental rights. Thus, allowing for these legislative bans to stand would infringe upon some of the most key rights of the modern American citizen and undermine the purpose that the Fourteenth Amendment stands to serve.

Cover Photo by Foreign, Commonwealth, and Development Office on Flickr.

Kate Brewer

Kate Brewer is local to the Cincinnati area but received her BA in Political Science from the University of Tennessee. She is now a 2L at the University of Cincinnati College of Law. In addition to Law Review, Kate is an Article Editor for the Human Rights Quarterly and the External Affairs Coordinator for the International Law Society. Kate also enjoys spending time with her cats and studying Russian

References

1
U.S. Const. amend. XIV, § 1.
2
Due Process, Cornell L. Sch. Legal Info. Inst. https://perma.cc/ZQB7-DUQ6 (last visited Sept. 15, 2023).
3
Substantive Due Process, Cornell L. Sch. Legal Info. Inst., https://perma.cc/Q7D9-LBWJ (last visited Sept. 15, 2023).
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15
Craig v. Boren, 429 U.S. 190 (1976).
16
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18
United States v. Virginia, 518 U.S. 515, 541 (1996).
19
Strict Scrutiny, Cornell L. Sch. Legal Info. Inst., https://perma.cc/ZQ99-Q2XY (last visited Sept. 15, 2023).
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21
Get the Facts on Gender-Affirming Care, Hum. Rts. Campaign, https://perma.cc/PTL4-QJ2X (last visited Sept. 11, 2023).
22
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23
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24
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25
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26
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27
Id. (explaining that puberty blockers are medications that temporarily pause puberty progression and are important in managing symptoms of gender dysphoria in transgender youth until they are old enough to consider a more permanent option).
28
Id.
29
Id.(describing “social transitioning” as the process by which a transgender individual comes to be associated socially with their gender identity by using the respective pronouns, a new name, etc.).
30
Id.
31
Id.
32
Id.
33
Id.
34
Eknes-Tucker v. Governor of Alabama, No. 22-11707, 2023 U.S. App. LEXIS 21942 (11th Cir. August 21, 2023).
35
Id.
36
Id.
37
Id. The fundamental right of parental decision-making is derived from Washington v. Glucksberg, 521 U.S. 702 (1997), where it was decided that the Due Process Clause protects the right of parents to direct the care, upbringing, and education of their children.
38
Koe v. Noggle, No. 23CV2904, 2023 U.S. Dist. LEXIS 147770 (N.D. Ga. August 20, 2023).
39
Id.
40
Id.
41
Id.
42
Id
43
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44
Nate Raymond & Brendan Pierson, Court Revives Alabama Ban on Transgender Youth Treatment, Judge Blocks Georgia Law, Reuters News (Aug. 21, 2023, 7:49 PM), https://perma.cc/9Y9U-8XKA.
45
Brandt v. Rutledge, No. 21CV00450, 2023 U.S. Dist. LEXIS 106517 (E.D. Ark. June 20, 2023).
46
Poe v. Drummond, No. 23CV177, 2023 U.S. Dist. LEXIS 122143 (N.D. Okla. July 17, 2023).
47
Exec. Order No. 13,988, 86 Fed. Reg. 7023 (Jan. 25, 2021), https://perma.cc/GTF7-KK7Z.
48
Statement on Texas’s Actions Affecting Transgender Youth, 2022 Daily Comp. Pres. Doc. 131 (Mar. 2, 2022).
49
See generally Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) (holding that there is no constitutional right to abortion, overruling the long-standing precedent that recognized a right to abortion under the substantive due process doctrine).
50
Hum. Rts. Campaign, supra note 21.
51
Hum. Rts. Campaign, supra note 21.
52
Justice Department Challenges Tennessee Law that Bans Critical, Medically Necessary Care for Transgender Youth, U.S. Dept. of Just. Off. Of Pub. Aff., https://perma.cc/7G4M-GLXZ (last visited Sept. 15, 2023).
53
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54
Craig v. Boren, 429 U.S. 190, 197 (1976).
55
United States v. Virginia, 518 U.S. 515, 541 (1996).
56
Hum. Rts. Campaign, supra note 21.
57
Cornell L. Sch. Legal Info. Inst., supra note 2.
58
Tradition of Parental Rights, Parental Rts. Found., https://perma.cc/CLU5-Y9U3 (last visited Sept. 15, 2023).
59
See generally Brandt v. Rutledge, No. 21CV00450, 2023 U.S. Dist. LEXIS 106517 (E.D. Ark. June 20, 2023); Doe v. Ladapo, No. 23CV114, 2023 U.S. Dist. LEXIS 99603 (N. D. Fla. June 6, 2023); K.C. v. Individual Members of the Med. Licensing Bd. of Inc., No. 23CV-00595, 2023 U.S. Dist. LEXIS 104870 (S.D. Ind. June 16, 2023).