Supreme Court likely to embrace the Republican war on trans people
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However hopeless his primary challenge to Trump, Ron DeSantis has his pulse on a certain segment of the Republican elite. The wealthy lawyers on the Supreme Court typify this group, which is very bad news for trans people:
In recent months, Republican lawmakers in many states enacted laws targeting LGBTQ Americans, attempting to shut down their right to free expression and even deny them medical care, among other things. Until Saturday, however, civil rights lawyers challenging these laws fared surprisingly well in federal court, convincing even many Republican judges.
The United States Court of Appeals for the Sixth Circuit’s decision in L.W. v. Skrmetti, threatens to upend all of that. Before L.W. was handed down this past weekend, there was a consensus among federal courts that the Constitution prohibits states from banning gender-affirming medical care.
L.W. destroys that consensus. It reinstated a Tennessee law, previously blocked by a federal trial court, that prohibits gender-affirming care for transgender patients under the age of 18. And the Sixth Circuit’s opinion was written by Chief Judge Jeffrey Sutton, a widely respected judge, especially among the Supreme Court’s GOP-appointed majority.
Sutton, a George W. Bush appointee, is one of the federal judiciary’s leading “feeder” judges, meaning that his law clerks are frequently hired to clerk for the Supreme Court justices — a sign that the justices are likely to pay careful attention to Sutton’s views when deciding how to resolve a case like L.W.
Sutton’s decision to reinstate Tennessee’s anti-trans law is temporary, and he ends his opinion by saying his court will reconsider this question “with the goal of resolving it no later than September 30, 2023.” So it is possible that the Sixth Circuit will reconsider and join the other courts that have blocked bans on transgender health care.
In the fairly likely event that the Sixth Circuit hews to Sutton’s position, however, that will make it very likely that the Supreme Court will take up this issue, and soon. The justices pay special attention to legal questions that have divided lower federal appeals courts when deciding which cases to hear.
And if they do, and Sutton’s opinion is embraced by a majority of the justices, that would be a devastating blow to LGBTQ rights.
Since I, personally, am skeptical of Sam Alito’s bare assertions that the basis of the holding in Dobbs (i.e, that the rights to privacy and sexual autonomy are wholly without basis in American constitutionalism) has no bearing on any future case, this is worrisome indeed.