WASHINGTON — The Supreme Court ruling that upheld a Tennessee law banning certain care for transgender youth left various legal questions open, even as other laws aimed at people based on gender identity, including those involving sports and military-service bans, head toward the justices.
That means that even though transgender rights activists face a setback, the ruling does not control how other cases will ultimately turn out.
“This decision casts little if any light on how a majority of justices will analyze or rule on other issues,” said Shannon Minter, a lawyer at the National Center for LGBTQ Rights.
Most notably, the court, which has a 6-3 conservative majority, did not address the key issue of whether such laws should automatically be reviewed by courts with a more skeptical eye, an approach known as “heightened scrutiny.” Practically, that would mean laws about transgender people would have to clear a higher legal bar to be upheld.
The justices skipped answering that question because the court found that Tennessee’s law banning gender transition care for minors did not discriminate against transgender people at all.
But other cases are likely to raise that issue more directly, meaning close attention will be paid to what the justices said in the various written opinions, as well as what they did not say.
Some cases might not even turn on transgender status. For example, the court could could determine that certain laws — such those banning transgender girls from participating in girls’ sports or restrictions on people using restrooms that correspond with their gender identity — are a form of sex discrimination.
There are cases all over the country on a variety of trans-related issues that could reach the Supreme Court at some point.
“There are myriad examples of discrimination against transgender people by the government making their way through the lower courts,” said Chase Strangio, a lawyer with the American Civil Liberties Union.
President Donald Trump’s ban on transgender people in the military, which the court already allowed to go into effect, is one of those potential cases.
There are also several appeals currently pending at the Supreme Court involving challenges to state sports bans. One of those cases involves West Virginia’s ban on transgender girls participating in girls sports in middle school, high school and college. The court in 2023 prevented the law from being enforced against a then-12-year-old girl.
Just this week, a federal judge ruled that the Trump administration cannot prevent transgender and nonbinary Americans from marking “X” as their gender identification on passports.
Reading the signals for future cases
As soon as the 6-3 ruling was released, experts were reading the tea leaves in Chief Justice John Roberts’ majority opinion as well as the three concurring opinions and two dissenting opinions.
The bottom line is that only three of the six conservative justices in the majority explicitly said they do not think transgender people are a “suspect class,” which would trigger heightened scrutiny of laws targeting them.
Those justices are Clarence Thomas, Samuel Alito, and Amy Coney Barrett.
In a concurring opinion, Barrett indicated the court should not play a major role in reviewing whether lawmakers can pass laws that affect transgender people. She gave restroom access and sports bans as examples.
Legislatures, she added “have many valid reasons to make policies in these areas” and laws should be upheld “so long as a statute is a rational means of pursuing a legitimate end.”
Alito, in his own opinion, said the court should have decided whether transgender-related laws merit heightened scrutiny.
“That important question has divided the courts of appeals, and if we do not confront it now, we will almost certainly be required to do so very soon,” he wrote.
In his view, transgender people are not a suspect class, in part because they “have not been subjected to a history of discrimination” similar to other groups the court has previously recognized merit special protections, including Black people and women.
Carrie Severino, a conservative legal activist, said Alito was right to say the court has to decide the issue. That three of the majority tipped their hands was “an encouraging sign that the court understands the risks of throwing the door open to novel protected classes,” she added.
But neither Roberts and fellow conservatives Neil Gorsuch and Brett Kavanaugh said anything about their views. Gorsuch’s reticence is especially notable, as he authored the court’s surprising 2020 ruling that extended discrimination protections to gay and transgender people under the federal Title VII employment law.
The court, to the disappointment of some conservatives, did not say that 2020 ruling is limited to the context of employment, although it ruled Wednesday that it did not apply to the specific medical care issue raised in the Tennessee case.
With the three liberal justices all saying they believe heightened scrutiny should apply, civil rights lawyers representing transgender plaintiffs still in theory see a path to victory in future cases.
“The court left open the possibility that heightened scrutiny could apply,” Strangio said.