Tracking Threats Through the Courts: Transgender Rights

For more on key issues moving through the courts, see our tracker.

What’s happening?

“Unadulterated animus” is how Judge Ana Reyes described Trump’s transgender military ban executive order during a hearing in her federal courtroom in Washington, D.C., on Tuesday. Judge Reyes has yet to rule on the EO’s legality, but her comments came soon after a pair of her fellow Biden-appointed federal judges both blocked Trump’s other anti-trans EO freezing federal funds for medical institutions that provide gender-affirming medical care for patients under the age of 19.

Meanwhile, in Texas, Judge Reed O’Connor, a George W. Bush appointee, vacated the Biden administration’s rule protecting transgender individuals in education settings, even though the Trump administration is likely to rescind it.

Trump’s DOJ is unlikely to appeal O’Connor’s ruling, but two federal appeals courts this week handed down decisions in other transgender rights cases that, like Trump’s executive orders, appear bound for the Supreme Court where a right-wing supermajority is poised to leave vulnerable individuals without equal protection.

And that brings us back to Reyes’s comments. Trump’s EO bans transgender servicemembers because “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.” The order offers no evidence for this claim or for the claim that a “man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.”

Usually judges have to smoke out animus. Trump’s EO proudly declares it.

That will make this an easy case for Reyes to decide under current Supreme Court precedent.

The question is whether our current Supreme Court will respect that precedent.

What’s the Context?

Courts often strike down laws and policies that discriminate on the basis of race, religion, national origin, and sex on the basis of constitutional and statutory equal protection requirements. Over the last decade, some courts, including the Supreme Court, have extended the statutory and constitutional protections to gay and transgender people.

For example, on Wednesday, the U.S. Court of Appeals for the Tenth Circuit ruled that a Colorado sheriff’s policy to house transgender women in the male-only jail was a sex-based classification and likely unconstitutional, though the appeals court declined to join the Fourth and Ninth Circuits in recognizing transgender status as a protected class.

Judges Brendan Hurson and Lauren King, both Biden appointees to the federal district courts in Maryland and California, respectively, are within the Fourth and Ninth Circuits. So they decided that Trump’s minor treatment funding freeze was likely unconstitutional transgender-based discrimination when explaining their temporary restraining orders issued late last week.

In this Supreme Court term’s case of United States v. Skrmetti, however, the Republican-appointed supermajority will likely reject both sex- and trans-based arguments against Tennessee’s ban on medical treatment for transgender minors. Such a decision will have the effect not only of upholding state bans, but also nullifying all the trans rights wins in lower courts based on the recognition of transgender status as a protected class.

That will leave parents of transgender children with the option to fight medical treatment bans by asserting their fundamental constitutional right to direct the upbringing of their children. Several lower courts–including the Tennessee district court in Skrmetti–have endorsed that argument, but right-wing dark money Christian nationalist groups like Alliance Defending Freedom have weaponized the parental rights argument to attack school policies designed to protect transgender students. A panel of Democratic-appointed judges on the First Circuit rejected that argument on Tuesday, but that followed a Republican-appointed federal judge in California accepting it last month, and Justices Clarence Thomas and Samuel Alito saying they’d do the same last year.

The transgender servicemembers, meanwhile, will likely be left only to argue animus. And yet even that may not even be enough to take down Trump’s military ban.

First, the Supreme Court’s supermajority has suggested that they may look the other way when it comes to the military. In 2023’s Students for Fair Admissions v. Harvard decision, the six-justice majority said race-conscious admissions in higher education fails to satisfy the “strict scrutiny” standard applicable to race-based actions but suggested that West Point and the Naval Academy’s affirmative action programs might yet survive because of “the potentially distinct interests that military academies may present.” By the same token, perhaps the same justices may excuse the Commander-in-Chief’s open animus in ways they wouldn’t in any other context.

Second, the Supreme Court may choose to jettison animus analysis altogether. Its roots are in a 1973 decision over food stamp exclusions, but its modern application arose from 1995’s Romer v. Evans, which struck down an anti-gay Colorado constitutional amendment because “its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects.” Romer was the first of the Court’s trilogy of landmark gay rights cases authored by then-Justice Anthony Kennedy. Each of the three decisions—Romer, Lawrence v. Texas’s striking down criminal bans on gay sex, and Obergefell v. Hodges’s recognizing the right to same-sex marriage—came over the vehement dissents of the Court’s right-wing justices. The Kennedy era ended with his retirement and replacement by Justice Brett Kavanaugh, who voted against transgender rights in 2020’s Bostock decision.

But Trump’s military ban is only one of his anti-trans actions that could be headed to the justices. Even if Judges Hurson and King’s equal protection rulings against Trump’s trans minor treatment ban EO are vitiated this year by SCOTUS in Skrmetti, the EO itself operates as a funding freeze–which the two Biden appointees said was likely an unconstitutional impoundment. And Trump’s assertion of inherent executive authority to rob Congress of its power of the purse may very well be among his administration’s biggest priorities in its autocratic agenda.

Why does it matter?

As Judge O’Connor adds his voice to the chorus of Republican judges who have said Biden exceeded his statutory authority to extend Bostock’s transgender workplace protections into educational settings, Trump distorted a federal statute designed to combat female genital mutilation to justify a freeze on funding for medical institutions that perform gender-affirming surgeries for transgender patients under 19. In so doing, Trump and his allies proved that their goal is to use the courts and any other available means to harm, scapegoat, and erase transgender people altogether.

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