Since the Supreme Court upheld Tennessee’s ban on gender-affirming care last month, legal experts have been trying to figure out how the decision will affect trans rights. Lucas Cameron-Vaughn, the lead ACLU Tennessee attorney on the team challenging the ban, told MLK50: Justice Through Journalism, that the court’s decision could have a broad impact on civil rights in the United States.
Following oral arguments, some observers speculated that the court might block coverage of gender-affirming care for adults on public healthcare plans, or decide that transgender people are not protected by laws prohibiting sex-based discrimination. The court did neither of those things.
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Instead, it undermined protections against sex discrimination as a whole, said Cameron-Vaughn. As a result, the court may have opened the door to policies like birth control bans, he added.
Here’s why:
The ban was originally challenged on the basis that it discriminates against transgender youth because of their sex. In the United States, sex is a protected characteristic. In other words, if the court found that the ban discriminated against children because of their sex, it would likely be illegal.
The state of Tennessee argued that the ban was not discriminatory. Instead, the ban barred youth from accessing care because of their age and medical condition, which are not protected characteristics.
The court sided with the state. It ruled that the ban did not discriminate against transgender people at all; instead, it created a barrier based on age and medical condition, as Tennessee argued.
The court’s ruling was fairly narrow, Cameron-Vaughn said. It allows bans on gender-affirming care for minors, but it does not permit bans on gender-affirming care for adults.
Still, the court’s underlying reasoning is concerning, Cameron-Vaughn said.
“This law clearly discriminates based on sex,” he said. “It’s on the face of the law. They’re saying it discriminates based on medical use, when that medical use is only aimed at transgender people, so it also discriminates based on transgender status.”
In arguing that the law did not discriminate against transgender people, the court adopted an unusual logic, Cameron-Vaughn said. The majority noted that Tennessee children can’t use treatments like hormone therapy to treat one medical condition — gender dysphoria — but can use the same treatments for other medical conditions, like precocious puberty. Therefore, the majority reasoned, transgender children can still access these treatments — just not to treat gender dysphoria. As a result, the ban does not discriminate against transgender people, even if only transgender people experience gender dysphoria.
This part of the court’s decision comes from a 1974 court decision called Geduldig v. Aiello, which was cited in the majority decision, Cameron-Vaughn said. The case was about California’s disability insurance system, which did not cover certain disabilities related to pregnancy. The plaintiffs in the case argued that this policy was a form of sex discrimination; the court disagreed.
“The court said that the law didn’t violate the equal protection clause because it only affected pregnant women and not all women,” Cameron-Vaughn said. “So because it only affected a subset of women and not all women, then it wasn’t a sex classification.”
In the intervening years, “everyone basically thought Geduldig had been overruled, and that it was not considered good law anymore,” he added. But against precedent, the Roberts court cited Geduldig in the Dobbs decision, which allowed states to ban abortions. In that decision, the majority used Geduldig to argue that bans on abortion do not discriminate against women, because not all women seek abortions.
That this court cited Geduldig twice in recent years is ominous, said Cameron-Vaughn. “It opens the door to state legislatures, or even maybe Congress, to pass laws that do discriminate based on sex, such as birth control bans, because it doesn’t affect all women or all men.”
The court’s decision was also “disappointing” in a different way, he added. During oral arguments, the court heard the stories of three transgender teen plaintiffs from Tennessee. But in the majority’s decision, “Chief Justice Roberts didn’t talk about them or their experience,” Cameron-Vaughn said. “I think that just speaks to the fact that they dehumanize trans people. They don’t think the struggles that these young and transgender people are facing are important.”
Rebecca Cadenhead is the youth life and justice reporter for MLK50: Justice Through Journalism. She is also a corps member with Report for America, a national service program that places journalists in local newsrooms. Email her rebecca.cadenhead@mlk50.com.
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