The agency of the LGBTQ+ community has always been under the jurisdiction of governments in the United States. Increasingly, our battles have been either won or lost in the courts.
Within the past twenty years, courthouses nationwide have provided the community with greater legal protection. Most notable among these include Supreme Court cases like Lawrence v. Texas, which provided a right to sexual autonomy; Obergefell v. Hodges, which secured the right to marriage; and more recently the 2020 case Bostock v. Clayton County, which extended employment civil rights protections to LGBTQ+ identities. These cases have weaved a larger legal tapestry of Constitutional equality for the most marginalized in our society.
But, with these wins, there has also been setback after setback. I think of the rising surge in anti-LGBTQ+ state laws, harmful political rhetoric, and the coercion of substantive due process claims in courts. I think of the 2023 case 303 Creative LLC v. Elenis, giving a blank check of discrimination towards LGBTQ+ people, for “religious” or “speech” objections. As I have written about in the past, the First Amendment does not provide Americans with such a right to violate or object to the civil rights of their fellow citizens. The Court was as wrong in that instance as it was in Dobbs v. Jackson when it took a bloody hammer not to just abortion rights, but all other substantive due process rights. Every right that relies on substantive due process — a principle that protects fundamental personal freedoms, like privacy and family autonomy, from government interference unless compelling state interest is presented — is now vulnerable to judicial reversal.
What is significant here for our conversation is that many of the pro-LGBTQ+ landmark cases are deeply rooted in substantive due process claims. And there is without a doubt an effort by members of the conservative legal movement to overrule them. We therefore should take Justice Clarence Thomas for his word when he wrote in a concurring opinion in Dobbs that, “in future cases, [the Court] should reconsider all of [its] substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
And here lies my concern with the newest LGBTQ+ case pending before the Supreme Court: United States v. Skrmetti. I am fearful that this Court, with its conservative supermajority, may once again strike forcefully at the rights and liberties of citizens.
The case involves a challenge to a 2023 Tennessee law banning gender-affirming medical care or, to be specific, any treatment that, “enabl[es] a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or “treat[s] purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” This would include puberty blockers, hormone therapies, and potentially emotional counseling.
The plaintiffs, represented by the federal government, include families with transgender youth and medical professionals, argue that this law violates the Equal Protection Clause and unlawfully restricts parents’ rights to make medical decisions for their children, rights historically protected within the framework of family autonomy and liberty interests. In response, Tennessee argues that the law protects minors from potentially harmful treatments and does not violate the Equal Protection Clause, as it applies equally to all minors regardless of gender identity.
The government’s assertion of parental rights in its brief taps into the liberty long afforded to families to make intimate decisions, particularly in healthcare, for their children. Although presented as part of an Equal Protection argument, this claim sits squarely within the principles of substantive due process — whether stated explicitly or not. This is the vulnerability: by indirectly invoking substantive due process, the plaintiffs may open themselves to the cold reality of this Court’s disregard for such protections, as seen in Dobbs. This Court, with its conservative supermajority, could, and very well may, seize on this opportunity to narrow the scope of substantive due process even further, jeopardizing not only this case but the essential protections that underpin LGBTQ+ rights, family autonomy, and medical decision-making.
Substantive due process claims aside, I would be remiss if I did not acknowledge the complexity of hormone therapy for transgender minors, which requires a balance of careful medical guidance, family support, and individualized care. Puberty blockers and hormone therapy, while medically recognized as viable treatments for gender dysphoria, involve nuanced considerations that require expert oversight. According to the American Academy of Pediatrics and the Endocrine Society, these interventions can offer crucial relief, significantly reducing symptoms of anxiety and depression in transgender youth. Research shows that when provided thoughtfully and with family involvement, gender-affirming care can improve mental health outcomes and lower the risk of suicidal ideation among transgender minors, who are nearly five times more likely to attempt suicide than their cisgender peers.
Yet, Tennessee’s law disregards this well-documented medical framework, opting instead for a sweeping ban on all gender-affirming treatments for minors, regardless of individual health needs or the medical guidance of professionals. Tennessee’s stance stands in stark contrast to established best practices, which stress the importance of case-by-case evaluation. Critics of such interventions often cite potential long-term risks, including effects on fertility and bone density. However, leading medical bodies find that these risks can be managed with appropriate monitoring and are outweighed by the mental health benefits for those diagnosed with gender dysphoria. No state has, nor should have, the authority to substitute its judgment for that of the patient, family, and treating professional, who are best equipped to assess these factors in context.
A blanket prohibition ignores the standards developed by medical professionals and overrides the informed choices of families, denying transgender youth access to a treatment that could dramatically impact their well-being. These decisions require medical expertise, parental insight, and, importantly, the input of the minors themselves. As such, hormone therapy and puberty blockers must remain within the discretion of families and healthcare providers, those most invested in the youth’s health, rather than being subject to state-imposed bans that fail to account for individual needs.
While the government’s argument for parental rights may rest on unstable ground given the Court’s recent aversion to substantive due process, the Equal Protection Clause claim offers the strongest path for challenging Tennessee’s law. Unlike substantive due process, which has faced significant opposition in the current Court, the Equal Protection Clause is a clear mandate against laws that disproportionately target specific groups. Though Tennessee’s law claims to apply ‘equally’ to all minors, its language reveals a deliberate targeting of transgender youth by prohibiting any treatment that “enabl[es] a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.” This language effectively denies transgender minors the same medical options available to cisgender youth, setting up an unequal legal framework that marginalizes transgender youth solely based on gender identity. Such a targeted ban violates the Fourteenth Amendment’s Equal Protection Clause, which ensures that no law may restrict individuals’ personal autonomy based on identity. The parallels to Bostock v. Clayton County are evident: just as Bostock prohibited discrimination based on sexual orientation or gender identity in employment, the Equal Protection Clause should similarly prevent discrimination in medical care.
Justice Neil Gorsuch, who authored the opinion in Bostock, might find this Equal Protection argument compelling. In Bostock, he affirmed that discrimination based on gender identity is intrinsically discrimination based on sex — a principle that powerfully resonates in Skrmetti. Should Gorsuch uphold his reasoning from Bostock, his vote could be pivotal in recognizing Tennessee’s law as a violation of equal protection by disproportionately impacting transgender youth. The Equal Protection Clause was designed to guarantee equal treatment under the law, especially within sensitive realms of personal autonomy like healthcare. Tennessee’s law contravenes this protection, establishing a precedent that allows states to regulate individual identity under the guise of public welfare. The Equal Protection Clause remains the stronger, clearer defense for preserving access to gender-affirming care, ensuring that transgender youth are afforded the same dignity and autonomy under the law as their cisgender peers.
If the Supreme Court upholds Tennessee’s ban, it would mark a pivotal shift, allowing states to restrict healthcare access based on identity through selective laws that override medical standards and family autonomy. Such a ruling would not only limit the rights of transgender youth but signal a deeper reconfiguration of constitutional protections, effectively excluding specific identities under the guise of “equal application” and opening the door to further legislation that erodes healthcare access, disregards individual choice, and undermines the principle of equal protection. This case challenges core constitutional protections — marriage, bodily autonomy, and family decisions — grounded in individual dignity and liberty, placing self-determination and equal protection at risk.
The Court has an opportunity to affirm that constitutional liberties remain inclusive, regardless of politics. Should it fail, it falls to us to protect these principles. Should the national level cease to be a bastion of dignity in the law, a new movement must take place in the states. Should the Constitution be shriveled to immovable words, then other avenues must be sought.
Senior U.S. Editor
