The Supreme Court will decide if the government can ban transgender health care

Then there’s a third argument in favor of allowing trans people to make their own health care choices, and this one has actually won some support from the Court’s current Republican members.

Bostock held, in a 6-3 decision authored by Republican Justice Neil Gorsuch and joined by Republican Chief Justice John Roberts, that a federal law that forbids “sex” discrimination in employment also prohibits discrimination on the basis of sexual orientation or gender identity.

The Court reasoned that discrimination against an LGBTQ employee necessarily requires the employer to discriminate on the basis of sex. If Tom is allowed to date Lily, for example, but Anesha is not, that’s just ordinary sex discrimination because Anesha is being treated differently than Tom because she is a woman.

Similarly, Bostock reasoned that if an employer penalizes an “employee who was identified as female at birth” for identifying as a man or for exhibiting stereotypical male behavior, but does not apply a similar sanction to “a person identified as male at birth,” then that’s just ordinary discrimination on the basis of sex.

Federal law also bans sex discrimination in health care. So Bostock’s reasoning should also prevent many attempts to ban gender-affirming care.

As the Fourth Circuit explained in its recent decision in Kadel v. Folwell, holding that state-provided health insurance could not refuse to cover certain treatments for trans people, these refusals were illegal because they applied only to people of one sex. The state’s Medicaid program, for example, covered “breast-reduction surgery to treat excess breast tissue in cisgender men, but not to treat gender dysphoria in transgender men; and chest-reconstruction surgery for cisgender women post-mastectomy, but not for gender dysphoria in transgender women.”

Again, this is just ordinary sex discrimination. A state could potentially refuse to cover breast-reduction surgery altogether. But it cannot cover this treatment when a man (or someone assigned the male sex at birth) seeks it, but refuse to cover it when a woman (or someone assigned the female sex at birth) seeks the same treatment.

This said, there may be limits to the Bostock framework. Suppose that a treatment exists that is used solely to treat transgender women, for example. Because this treatment would be used exclusively on people assigned the male sex at birth, a ban on it would not engage in traditional sex discrimination because it would not allow people assigned the female sex at birth to obtain care that others cannot receive.

But it’s far from clear whether any such treatment exists. And, even if it does, the Bostock framework should give trans people broad access to many forms of gender-affirming care.

While the legal arguments against trans health bans are exceptionally strong, some lower court judges have articulated another argument that is likely to appeal to the justices who joined Dobbs v. Jackson Women’s Health Organization (2022), the Court’s decision holding that abortion policy should be set by elected lawmakers and is not determined by the Constitution.

The best articulation of this alternative theory is Judge J. Harvie Wilkinson’s dissenting opinion in the Kadel case, which argues that a pro-trans reading of the Constitution or anti-discrimination law “would encroach on a State’s prerogative under its basic police power to safeguard the health and welfare of its citizens.”

Wilkinson claims that the medical treatments at issue in cases like Kadel, “puberty blocking drugs, cross-sex hormones, and gender reassignment surgery,” are all “matters of significant scientific debate and uncertainty.” And these debates should be resolved by elected officials and not by unelected judges.

Wilkinson is correct that states must have some authority to restrict or ban medical treatments that may be harmful — no one questions the government’s authority to prohibit doctors from prescribing heroin, for example. Similarly, a state may prohibit doctors from providing a treatment that is widely accepted as inappropriate for a certain medical condition. While breast reduction surgery is the right treatment for some patients diagnosed with gender dysphoria, a state should be allowed to prevent doctors from using it to treat the common cold.

Of course, the Fourth Circuit majority has a good response to Wilkinson. Physicians who provide gender-affirming care are not akin to quacks who write prescriptions for heroin, so long as they make treatment decisions that align with prevailing medical standards. As the Kadel majority explains, the World Professional Association for Transgender Health recommends “assessment, counseling, and, as appropriate, social transition, hormone therapy, and surgical interventions to bring the body into alignment with one’s gender identity.”

Will that argument convince a majority of the justices? Probably not. The Supreme Court’s Republican majority is notoriously allergic to expertise. Two of the biggest cases this term are expected to transfer a simply extraordinary amount of policymaking authority from experts in federal agencies to the judiciary — rejecting a seminal 1984 Supreme Court decision that held that courts should defer to agencies in large part because “judges are not experts” on matters of policy.

Still, the fact remains that two of the Court’s Republicans — Roberts and Gorsuch — joined the majority in Bostock. So there is, at least, some hope for trans patients that those two justices will apply Bostock to bans on gender-affirming care.