The Supreme Court granted permission on Monday for Idaho to implement a state law that prohibits transgender youth from accessing gender-affirming care, at least temporarily. This marks the first instance in which the justices have intervened in a case concerning the provision of gender-affirming care to minors, as well as transgender health in general.
In the case of Poe v. Labrador, the constitutionality of Idaho’s ban on gender-affirming care is being examined. In their decision on Monday, the justices did not comment on the merits of the case, but rather focused on whether the state could enforce the ban and who would be affected by it. As of now, the ban will not impact the two transgender Idaho teenagers who filed the lawsuit against the state.
Last May, Idaho’s legislature, controlled by Republicans, passed the Vulnerable Child Protection Act. This act prohibits transgender children from accessing various gender-affirming treatments, such as puberty blockers and hormone replacement therapy, which are commonly used. Violating this act may result in medical providers facing felony charges and a maximum prison sentence of 10 years.
Two months after signing the bill into law, Idaho Governor Brad Little faced a lawsuit from two plaintiffs and the American Civil Liberties Union (ACLU). The plaintiffs sought to block the law, claiming that it violated their constitutional rights to equal protection.
In December, the implementation of the ban was temporarily halted by a district court judge. Idaho sought to appeal the ruling in the U.S. Court of Appeals for the 9th Circuit, but their request was denied by the judge.
Raúl Labrador, the Republican attorney general of Idaho, took swift action by seeking emergency relief from the Supreme Court. Labrador specifically requested that the injunction be limited to only the two plaintiffs, thereby granting Idaho the ability to enforce its ban on gender-affirming care for all other transgender minors in the state. On Monday, the Supreme Court granted this request, effectively allowing Idaho to proceed with its restrictions.
Li Nowlin-Sohl, an ACLU lead attorney, expressed concern about the teenagers’ access to healthcare in Idaho despite the recent decision.
Nowlin-Sohl expressed her uncertainty about how the situation will unfold, stating that it is too early to determine the outcome. She emphasized the concern they have raised to the Supreme Court, highlighting the potentially alarming prospect of having an exception for only two individuals. Nowlin-Sohl pointed out the fear that doctors and pharmacists may face a felony charge and a decade-long prison sentence for providing this care. This could potentially discourage them from offering their services to these two individuals due to the perceived risks involved.
The lawyers representing the plaintiffs also raised concerns about the injunction being limited to only the two teenagers. They argued that this restriction could potentially expose the teenagers to the risk of having to disclose their transgender identities whenever they visit a doctor or need to get prescriptions filled.
The lawyers expressed that the individual Plaintiffs have no means of obtaining any form of relief whatsoever.
In February 2023, over 300 individuals congregated in front of the Idaho Statehouse to express their opposition to anti-transgender legislation that was making its way through the Idaho legislature.
The Monday decision does not mark the conclusion of the case. As Poe v. Labrador progresses through the appellate court, it still has the potential to be heard by the Supreme Court or return to the district court for the usual legal process.
Families in Idaho are currently faced with the challenge of finding alternatives to ensure that their children can still receive the necessary care, as the recent decision has caused a disruption in their existing support system.
Advocates are currently exploring the available options to ensure that transgender individuals in Idaho can access the necessary medical care. This care is considered medically necessary by most major American medical associations. Nowlin-Sohl emphasized the importance of finding solutions to ensure that transgender Idahoans have access to the healthcare they need.
Since 2019, a coalition of right-wing organizations, legislators, and attorneys from Alliance Defending Freedom have been actively working together to promote a series of anti-LGBTQ laws with the intention of restricting the rights of transgender individuals. Notably, Idaho has emerged as a significant battleground for these conservative efforts.
Idaho has recently become the 24th state to implement a prohibition on gender-affirming care, joining the ranks of several other states with similar bans in place. However, it is important to note that many of these bans are currently facing legal challenges.
An appeals court on Tuesday halted the enforcement of West Virginia’s ban on transgender athletes participating in girls’ sports, while an Ohio court temporarily blocked the state’s ban on gender-affirming care.
Despite the efforts to block bans on anti-LGBTQ legislation in several U.S. district courts, there are still three U.S. courts of appeals that have allowed bans to take effect in Alabama, Georgia, Tennessee, and Kentucky.
The Constitution comes into play in many of these cases, as the primary concern revolves around whether prohibiting gender-affirming care for minors is a violation.
The Idaho attorney general’s request for emergency relief focused on a different aspect rather than addressing the question of the ban’s constitutionality. Specifically, the attorney general sought to halt the lower court’s universal injunction of the ban.
According to Shannon Minter, the legal director of the National Center for Lesbian Rights, there has been a shift in the way conservative justices are approaching the “shadow docket.” This docket is typically used for parties seeking emergency relief, as was the case with Idaho.
According to Minter, in civil rights lawsuits where individuals challenge discriminatory laws and claim they are unconstitutional, courts have traditionally issued injunctions against enforcing these laws on anyone, not just the plaintiffs themselves. Minter argues that if a law is found to be unconstitutional for a particular group of people, there is no legal justification for limiting the ruling to only the individual plaintiffs. This is a standard practice in civil rights cases, where the law is applied to protect the rights of a larger class of individuals.
The justices’ opinions on Monday showcased a passionate discussion about their authority to impede the widespread implementation of a law, rather than focusing on the constitutionality of the ban itself.
In the past, there have been conflicting opinions among the courts regarding this matter. The extent of a law’s reach has been a recurring topic in legal battles concerning anti-LGBTQ legislation. For instance, in a case involving a drag ban in Florida, Hamburger Mary’s, a restaurant and drag bar, filed a lawsuit that resulted in a temporary block. However, state lawyers attempted to argue that the injunction should only apply to Hamburger Mary’s and not have broader implications.
Justice Neil Gorsuch, in his concurring opinion on the Idaho case, raised an important question about the appropriateness of universal injunctive relief. This question has long been in need of the Court’s attention.
Conservative judge Neil Gorsuch, who was appointed by Donald Trump, expressed the need for greater caution when it comes to the use of universal injunctions. He highlighted the growing trend of lower courts issuing such rulings, particularly during Trump’s presidency and throughout the ongoing pandemic. Gorsuch’s remarks emphasize the importance of carefully considering the implications of these injunctions moving forward.
“In recent years, some courts in different parts of the country have gone beyond their role of issuing fair orders to address the grievances of the plaintiffs in front of them. Instead, they have attempted to exert control over an entire state or even the entire nation from within their courtrooms,” Gorsuch expressed.
Justice Brett Kavanaugh and Amy Coney Barrett emphasized that the court’s decision to grant emergency relief depends on their assessment of the party’s chances of success in the final decision.
According to Vox’s Ian Millhiser, Kavanaugh’s concurring opinion implies that Idaho is likely to succeed in challenging the legality of the bans when the issue eventually reaches the Supreme Court.
In her dissenting opinion, Justice Kentanji Brown Jackson expressed her concern about Idaho’s request for the court to intervene in the enforcement of the ban while a lower court case was ongoing. She found this to be troubling. According to her, the issue of a child’s access to gender-affirming care is a serious and consequential matter.
In November, the Supreme Court was petitioned by the ACLU, Lambda Legal, and other groups to review the decision made by the 6th Circuit. This decision allowed the bans on gender-affirming care for minors in Tennessee and Kentucky to be implemented.
The court has not indicated whether it will consider these cases this year and has already rescheduled their reviews five times in the current year.