DUE CARE IN A CONSERVATIVE COURT

Abstract

By the end of its 2024-25 term, the Supreme Court will decide the constitutionality of statutory bans on providing necessary treatments to trans minors, already in place in about half of the Nation’s states. Although many courts have found such treatment bans unconstitutional, the Six Circuit affirmed bans enacted by Tennessee and Kentucky in L.W. v. Skremtti, rejecting two constitutional challenges: under the Equal Protection Clause and the Due Process Clause. At this juncture, the Supreme Court has only agreed to review the arguments that the treatment bans discriminate on the basis of sex and transgender status in violation of the Equal Protection Clause. This Article is the first to explain why considering discrimination claims alone would put trans adolescents at risk, urging the Court to expand its review and consider how acutely the bans infringe on fundamental parental rights protected under the Due Process Clause.

Because minors’ health is at stake and the bans’ validity hinges on a Court currently dominated by conservative Justices, this Article takes a pragmatic approach aimed at overcoming partisan divisions. It examines the constitutionality of the bans from a conservative perspective, excavating and analyzing numerous external resources, from briefs to websites to press releases. This original inquiry shows that reviewing the treatment bans through the lens of parental rights offers a path to finding a common judicial ground where even the most compelling discrimination arguments might fail. Therefore, this Article focuses on illuminating why and how a nonpartisan consensus around parents’ right to seek treatment for their children might be within reach when the interests of parents and children align.

For example, the Article uncovers conservative opposition to the treatment bans due to worries about state intervention in parental decisions regarding issues like vaccines or homeschooling. It also documents a rising campaign that relies on parents’ rights to promote traditional views of gender identity and resist state intrusions into the family sphere. Delving even deeper, this Article illuminates conflicting priorities on the right side of the political map that could persuade Justices who are committed to limiting state power more than to religious causes to join their liberal colleagues in invalidating the treatment bans, if not because they are discriminatory, at least because they display an unprecedented form of government overreach. 

Based on those findings and insights, this Article argues that a proper review of Skrmetti, which considers the bans’ infringement on parental rights, could allow the Court to reject a divisive ideology-based approach, adhere to the Constitution, and—most importantly—ensure that minors, regardless of their gender identity, receive the treatments they need.

Keywords: Supreme Court, Gender-Affirming Care, Skrmetti, Due Process Clause, Parental Rights, Equal Protection Clause, Bostock, LGBTQ+ Rights

JEL Classification: K38, K41