SCOTUS’s Review of Ban on Trans Health Care Highlights Need for State Litigation

The U.S. Supreme Court announced this week that it would consider the permissibility of anti-trans discrimination under the Constitution — upping the stakes in a long-simmering battle.

L.W. v. Skrmetti involves a challenge to Tennessee’s ban on gender-affirming care for trans youth, which civil rights groups argue violates the Constitution’s Equal Protection Clause and guarantee of substantive due process. Cases involving the constitutional rights of trans people have been litigated all over the country in the last several years — and, for the most part, rights advocates have prevailed. As Rutgers Law professor Katie Eyer noted in a survey of cases brought from 2017 to 2021, these litigants “have been overwhelmingly successful, no matter which metric of success they are evaluated under.”

Skrmetti was the first federal appellate decision — but certainly not the last — to address the constitutionality of new laws, passed in the last several years, that ban or criminalize gender-affirming care for trans people. The U.S. Court of Appeals for the Sixth Circuit held that the plaintiffs, who included transgender teens, their families, and a doctor, were not entitled to a preliminary injunction against Tennessee laws that ban the provision of medical care for trans youth and establish a private right of action against medical providers who treat them. The court concluded that the legislation neither violated the Equal Protection Clause nor infringed on any fundamental liberty interests of the plaintiffs, because the laws did not discriminate on the basis of “sex,” gender identity was not a recognized suspect classification, and there was no fundamental liberty interest at stake. How the Supreme Court will decide the question of how to evaluate anti-trans discrimination under the Equal Protection Clause is far from certain, but the decision will undoubtedly affect the landscape of LGBTQ+ rights litigation.

Yet the Court is not the final arbiter of all constitutional questions in the country. State courts are free to interpret their own constitutions to extend broader, and different, protections than the U.S. Constitution does. I have argued — both in State Court Report and in the Ohio State Law Journal — that litigants should take their fights to state courts for exactly this reason. While the ultimate outcome of federal litigation is unclear, both a victory or a loss for the transgender plaintiffs and their families will heighten the need for state litigation, either to expand rights further or to fill rights gaps left in federal constitutional jurisprudence.

Though state-level litigation over anti-trans legislation has been slower to develop than federal case law, lower state courts have started to hear these cases and issue initial decisions — making it all the likelier that state supreme courts will decide these questions for themselves in the coming years.

State cases challenging anti-trans laws have relied on a variety of state constitutional provisions. Most frequently, trans advocates around the country have invoked their states’ equality guarantees. State constitutional protections of equality can be quite different from the U.S. Constitution’s Equal Protection Clause, in ways that are usually — but not always — favorable to state litigants. State constitutions frequently name protected classes, for example, though only Nevada includes an explicit protection of “sexual orientation” and “gender identity or expression.” New York will likely vote on a similar amendment this year.

Many states have also ratified their own equal rights amendments, which usually treat discrimination based on “sex” or “gender” more critically than the U.S. Supreme Court does. And a handful of state courts — most prominently, Alaska — use a totally different test for evaluating equal protection violations, which frequently avoids the need to litigate what level of judicial scrutiny a court should apply.

At the same time, however, many state constitutions lack any express equality provision, though virtually all state supreme courts have recognized an implied equal protection guarantee, usually through their state constitution’s due process clause.

When making claims based on state constitutional equality guarantees, litigants usually argue that gender identity is a protected “class” or that the legislation discriminates on the basis of “sex.” This echoes arguments that were raised in state court challenges to statutory bans on marriage equality before the Court recognized, in Obergefell v. Hodges, that same-sex marriage was entitled to protection under the federal constitution. Yet even though the Court’s decision resolved the issue nationwide, the state-level litigation that took place before Obergefell and struck down the bans produced landmark decisions in state constitutional law. In marriage equality litigation, state courts were far likelier to recognize a new suspect classification — something the Supreme Court has yet to do — than to determine that the discrimination at issue was really on the basis of “sex.”

Many litigants also argue that restrictions on trans rights violate state constitutional protections of the right to privacy. While the status of the right to privacy — and substantive due process more generally — under the U.S. Constitution is murky after the Court declared in Dobbs v. Jackson Women’s Health Organization that privacy guarantees do not protect a right to abortion, state constitutional protections are much more robust. Twelve state constitutions expressly protect “privacy,” either in the context of a search-and-seizure protection akin to the Fourth Amendment or as a standalone protection. In many other states, supreme courts have recognized an implied right to privacy. These protections were frequently relied upon by LGBTQ+ litigants challenging state bans on “sodomy” prior to the Court’s holding in Lawrence v. Texas that such laws were unconstitutional, which built a body of case law that may be helpful now.

Litigants have also relied on a handful of other arguments. In many of these cases, they have argued that restrictions on gender-affirming care for trans youth violate parents’ rights to make decisions for their children, which some state courts have recognized as a fundamental right. Others have argued that the restrictions infringe on doctors’ ability to practice their chosen professions, frequently relying on provisions like that in Missouri, which protects the right to “the enjoyment of the gains of [one’s] own industry.” And while most state constitutions do not protect an absolute right to “health,” in the states that recognize “health care freedom” — provisions adopted as anti-Obamacare measures — these rights have been invoked, too.

It is too early to evaluate the success of state court litigation. State trial courts have reached different outcomes around the country, though more have issued preliminary injunctions against anti-trans legislation than have denied them. For the most part, resolution by state supreme courts remains uncertain, though the Texas Supreme Court heard arguments on the state’s ban on gender-affirming care earlier this year. The state constitutional arguments that litigants can raise against these laws are likely stronger, in the aggregate, than the arguments under the U.S. Constitution — but that does not guarantee any outcomes.

And while successful state court litigation is no substitute for a national win, its value is significant. State courts frequently borrow from each other, and view decisions from other courts as persuasive, so building a body of supportive case law is not just helpful to the trans communities in individual states — it helps establish a constitutional language for evaluating these laws.

Quinn Yeargain is an assistant professor at Widener University Commonwealth Law School.