SupCo: Idaho can ban gender-affirming care for trans kids
Kelsey Reichmann
WASHINGTON (CN) — The Supreme Court granted on Monday an emergency application from Idaho contesting an injunction blocking the state's ban on gender-affirming care, allowing for the ban to be enforced for most transgender children.
Although emergency applications do not require the justices to publicly disclose their vote count, five of the conservative justices wrote or joined opinions in favor of Idaho. Chief Justice John Roberts, a George W. Bush appointee, was the only justice to not publicly note his opinion on the case. The majority did not issue a joint explanation for its order.
Justices Clarence Thomas, a George H.W. Bush appointee, and Samuel Alito, a George W. Bush appointee, joined a concurrence written by Justice Neil Gorsuch, a Donald Trump appointee.
Gorsuch said the court’s decision was a “welcome development” because it limited a lower court pause on Idaho’s law that applied to everyone in the state — even those not directly involved in the lawsuit. Gorsuch criticized the lower court for offering such broad relief, which he described as defying foundational principles of the judicial system.
“The district court issued this sweeping relief even though, by its own admission, the plaintiffs had failed to ‘engage’ with other provisions of Idaho’s law that don’t presently affect them — including the law’s provisions prohibiting the surgical removal of children’s genitals,” Gorsuch wrote. “In choosing such an extraordinary remedy, the district court clearly strayed from equity’s traditional bounds.”
Not limited to the lower court in this case, Gorsuch offered a broad critique of district courts across the country who abused their discretion and warned that “lower courts would be wise to take heed.”
“In recent years, certain district courts across the country have not contented themselves with issuing equitable orders that redress the injuries of the plaintiffs before them, but have sought instead to govern an entire state or even the whole nation from their courtrooms,” Gorsuch wrote.
Justices Ketanji Brown Jackson, a Joe Biden appointee, and Sonia Sotomayor, a Barack Obama appointee, in a dissent authored by Jackson, accused their colleagues of disregarding restraint and reason to allow Idaho to enforce its ban.
“This court is not compelled to rise and respond every time an applicant rushes to us with an alleged emergency, and it is especially important for us to refrain from doing so in novel, highly charged, and unsettled circumstances,” she wrote.
Jackson said the court should have weighed the serious dangers of making consequential decisions without the benefit of full briefing and oral argument.
“Without adequate caution, our decisions risk being not only ‘unreasoned,’ but unreasonable,” Jackson wrote.
Justice Elena Kagan, a Barack Obama appointee, noted that she would have denied the stay.
Idaho asked the justices to limit a lower court injunction stopping the state from enforcing its ban. The state claimed that the two teenagers suing the state should be the only individuals exempt from the ban instead of pausing the ban altogether.
The families of two transgender girls argued that limiting the injunction would reveal their identities to medical staff at every doctor's visit or medication refill. Since the law criminalizes doctors’ conduct, healthcare providers may be hesitant to provide this care.
Idaho’s Vulnerable Child Protection Act bans gender-affirming medications or surgical treatments for minors. Doctors who provide this care can face felony charges and 10 years in prison. The law only applies to transgender children, however, allowing minors to receive this care for other reasons, such as affirming the gender consistent with the child’s biological sex.
Idaho’s ban was blocked by Senior U.S. District Judge B. Lynn Winmill, who found the law likely violates the Constitution by giving unequal treatment to transgender children. Winmill said parents should be the ones making medical decisions for their children, not the state.
“While denying the stay would cause no harm, granting it would cause severe harm to plaintiffs by jeopardizing their ability to continue receiving the medical care that they, their parents, and their doctors all agree is medically necessary for their health and well-being, and requiring them to give up their anonymity as transgender plaintiffs in this case to try to access that care,” said Chase Strangio, an attorney with the American Civil Liberties Union Foundation representing the teenagers. “This is also contrary to the public interest.”
The case has been expedited by the Ninth Circuit. The teenagers say the quick resolution to the case weighs against the justices offering the state assistance.
Justice Brett Kavanaugh, a Donald Trump appointee, also wrote a concurring opinion that was joined by Justice Amy Coney Barrett, another Donald Trump appointee. Kavanaugh said the reality is that the court cannot avoid the difficulty of not having much precedent to turn to when resolving emergency applications involving new laws.
Kavanaugh said there were things the court could do to limit having to resolve these types of emergency applications but it wouldn’t make the issue entirely avoidable.
“But this court is responsible for resolving questions of national importance, even when they arise on the emergency docket,” Kavanaugh wrote. “Fulfilling that responsibility will sometimes require us to assess likelihood of success on the merits in emergency cases involving new laws, as the court has in the past.”
Jackson noted that the court’s order displaces the rulings of two lower courts — one of which ruled unanimously. She said Idaho had not met the heavy burden placed on plaintiffs asking for emergency relief.
Jackson said Idaho was not asking for relief on claims that the lower courts errored on the merits questions but instead only one aspect of a preliminary determination by the district court.
“In my view, we should resist being conscripted into service when our involvement amounts to micromanaging the lower courts’ exercise of their discretionary authority in the midst of active litigation,” Jackson wrote.
Jackson said Gorsuch’s argument that treating this application as a run-of-the-mill motion for interim relief was “folly.” She said that her colleague’s thoughts on universal injunctions proved why the justices shouldn’t have granted the emergency application.
“It appears, then, that if the concurrence is right that ‘universal injunctions ... tend to force judges into making rushed, high-stakes, low-information decisions,' the majority has taken the bait,” Jackson wrote.
Jackson said she agreed that the emergency docket was becoming increasingly unworkable but did not agree with why that was. She said she was also concerned that courts need to work within the bounds of their authority and that everyone could result from more carefully reasoned judicial decisions.
“With respect, though, I worry that we may be too eager to find fault in everyone but ourselves,” Jackson said.