For state lawmakers who want to keep health care decisions about young transgender people’s care between them, their parents, and their doctors — and out of the hands of judges — the best time to act was yesterday. Next best time: right now.
If that wasn’t already apparent, Wednesday’s Supreme Court arguments in a challenge to Tennessee’s ban on gender-affirming care for transgender minors makes it crystal clear.
Guessing the outcome of a case based on oral arguments is usually a fool’s errand. I’ve been proven wrong more than once. Still, I think it’s safe to say this conservative court doesn’t have a strong appetite for raising the standard of constitutional scrutiny for this or other laws targeting transgender people.
That means this law will very likely stand and so will those in 25 other states with bans or other limits on gender-affirming care.
Yet, only 14 states (Massachusetts included) and the District of Columbia have laws in place shielding the ability of doctors, their patients, and patients’ families to act according to their needs, wishes, and the proper standard of medical care, according to the nonprofit Movement Advancement Project. Two more states have executive orders currently in place protecting access to transgender health care.
Astonishingly, according to MAP, 34 states have passed no transgender health care protection rules at all.
They have not learned one of the most crucial lessons from the Dobbs ruling that overturned Roe v. Wade: Beware the unintended yet foreseeable consequences. It’s time for them to wake up. This case isn’t just about protecting trans adolescents’ health and futures, though that should be reason enough to reject such bans — studies have for years noted an increased risk of mental health issues like depression and suicidal ideologies caused by gender dysphoria in young people and adults.
It’s also about who should make those decisions. The lessons from Dobbs are far too fresh to ignore.
It was not just abortion access protections that were stripped from people in states that banned it after Dobbs. The health care implications were much wider, with some providers in states with laws defining life at fertilization choosing to halt in-vitro fertilization procedures for fear of liability. There is confusion about the legal status of frozen eggs and embryos. The incoming Trump administration creates uncertainty over the ongoing availability of not only medications for abortions but also that of some contraceptives. Maternity health care providers are fleeing states with abortion bans.
American Civil Liberties Union attorney Chase Strangio, who Wednesday became the first openly transgender person to argue before the court, noted that restrictions aimed at transgender people will imperil others — particularly other LGBTQ people.
“Sometimes homosexuality and transgender status are sort of lumped together in discriminatory frameworks,” Strangio said.
But of course, that is the point of these laws. The biggest harm they seek to address is not, as they claim, the tiny percentage of transgender people who may later regret their choice to have gender-affirming care. It’s to protect the sensibilities of non-transgender people who think providing that care is wrong.
Justice Ketanji Brown Jackson drew comparisons to states that, until the Supreme Court’s 1967 ruling in Loving v. Virginia, banned the ability of people of different races to marry. The interest of those states had little to do with protecting people in interracial marriages and families. It was to protect the bigotries of those who opposed them.
In the Dobbs decision, Justice Samuel Alito noted that women who don’t like state abortion bans “are not without electoral or political power.” But the same is not true for transgender Americans facing health care bans.
“When you are 1 percent of the population or less, it’s very hard to see how the democratic process is going to protect you,” Justice Sonia Sotomayor said during argument Wednesday, noting that Black Americans make up a far larger percentage of the population but still face institutional discrimination to this day.
But it’s not just about broad issues of fairness. If you don’t think you and yours have skin in this particular game, think again.
Are you or someone you know a perimenopausal woman who depends on hormone replacement therapy to keep your mind clear and your clothing from being soaked with sweat on even the coldest day? (Full disclosure: I am.)
What about kids who need to delay puberty in order to protect their future fertility — for example, in a case where a child has to undergo cancer treatment that could cause reproductive problems in postpubescent people? Or the plethora of other health conditions for which hormones are prescribed?
Other ripple effects, like the Dobbs threat to IVF treatments, may not be apparent until they happen. Caring about the well-being of trans kids, as well as their and their family’s choices for their health care, should be enough. But even if it isn’t, there is no time to wait to protect people’s lives and health care. Shield laws can do that — but only if they’re on the books.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com.