Supreme Court: Idaho May Enforce Law Protecting Minors from Gender Transition Procedures

Idaho may enforce its law protecting minors from gender transition procedures in almost all cases, the Supreme Court ruled Monday in a 6-3 order. The ruling, while not based on the merits of the lawsuit, gave the first indications of whether Supreme Court justices would hear a case regarding state laws to protect minors from gender transition procedures.

Procedural Background

The primary issues the Supreme Court considered were the scope of a preliminary injunction issued against the law and the emergency basis on which it came before the court.

On December 26, 2023, U.S. District Judge B. Lynn Winmill, of the District of Idaho, issued a preliminary injunction that prevented Idaho officials “from enforcing any provision of House Bill 71 [Idaho’s Vulnerable Child Protection Act] during the pendency of this litigation” — a process that could draw out for years.

Idaho Attorney General Raul Labrador (R) appealed for an emergency stay first to the U.S. Court of Appeals for the Ninth Circuit and then to the Supreme Court, arguing that the injunction was overly broad. While the minors named in the lawsuit “seek only a single procedure regulated by Idaho’s VCPA — the taking of estrogen,” he argued, “under this injunction, Idaho cannot even stop surgeons from performing the proscribed operations on five-year-old children, even though Plaintiffs’ own experts don’t defend such a practice.”

Decision

The Supreme Court granted the stay Idaho requested. They narrowed the preliminary injunction so that it only prevented the state from enforcing the law against the two minors represented in the lawsuit, and only for the gender transition procedures they sought — doses of estrogen for two biological males. With this one caveat, Idaho can now broadly enforce every provision in their law, which covers 18 different procedures, for everyone else in the state.

The Supreme Court did not issue a majority opinion explaining their decision. Instead, the court published two concurring opinions and one dissenting opinion, written or joined by seven of the court’s nine justices (Chief Justice John Roberts and Justice Elana Kagan joined no opinions, although Kagan dissented from the ruling). Based on the content of those opinions, it seems reasonable to infer that the court agreed with Labrador’s argument that “the injunction here has the characteristic marks of a ‘universal’ injunction,” but there’s no way to know for certain.

Opinions

The first concurrence, written by Justice Neil Gorsuch and joined by Justices Clarence Thomas and Samuel Alito, militated against “the propriety of universal injunctive relief,” which it argued was the question posed in this case.

“Ordinarily, injunctions like these may go no further than necessary to provide interim relief to the parties. In this case, however, the district court went much further, prohibiting a State from enforcing any aspect of its duly enacted law against anyone,” wrote Gorsuch. “Among other things, this meant Idaho could not enforce its prohibition against surgeries to remove or alter children’s genitals, even though no party before the court had sought access to those surgeries or demonstrated that Idaho’s prohibition of them offended federal law.”

Gorsuch then briefly set forth how Idaho was entitled to a stay of the injunction under the court’s traditional, four-part “stay test.” For reference, the prongs of that test are as follows: “(1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits, (2) whether it will suffer irreparable injury without a stay, (3) whether the stay will substantially injure other parties interested in the proceedings, and (4) where the public interest lies.” Gorsuch argued that the preliminary injunction “clearly strayed from equity’s traditional bounds” by blocking the entire law, even parts that, “by its own admission,” did not affect the parties in the case.

This discussion teed up an argument for “retiring the universal injunction” — “a question of great significance that has been in need of the Court’s attention for some time.” Gorsuch and his colleagues expressed concern about exponential growth of district courts who “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.” Lest the audience for this argument — lower courts — should neglect it, they made their warning explicit: “Lower courts would be wise to take heed.”

The most interesting remark in Gorsuch’s opinion came in a section devoted to rebutting the arguments raised by the dissent. There, he noted “an apparent circuit split” over “laws very much like Idaho’s.” In particular, he noted the Eighth Circuit’s ruling against the Arkansas SAFE Act in Brandt v. Rutledge and the Sixth Circuit’s ruling for a Tennessee law protecting minors from gender transition procedures in L.W. v. Skrmetti.

Circuit splits are one of the major reasons for the Supreme Court to agree to hear a case on appeal. That Gorsuch (along with Thomas and Alito) would articulate “an apparent circuit split” over laws protecting minors from gender transition procedures indicates that these three justices are aware of the developing litigation and are open to hearing the matter in the future.

The second concurrence, written by Justice Brett Kavanaugh and joined by Justice Amy Coney Barrett, was mostly concerned with the volume of cases coming to the Supreme Court on the emergency docket. “The Court has no authority to reject or turn away emergency filings without deciding them,” Kavanaugh complained, and often must decide them “without the benefit of full merits briefing and oral argument.” Such hasty decision-making can then provide a precedent that skews a case’s further developments in lower courts. Therefore, he also recognized that “prohibiting nationwide or statewide injunctions” could ease the Supreme Court’s burden of cases on the emergency docket.

On several points, Kavanaugh and Barrett sided with the Gorsuch opinion over the dissenting opinion, but far less stridently. They said very little about the Idaho case in particular and nothing about the prospect of the Supreme Court hearing a SAFE Act appeal in the near future.

The only dissent, written by Justice Ketanji Brown Jackson and joined by Justice Sonia Sotomayor, made the best of its thin legal case. Jackson accused the court of “sideste[pping] the ordinary judicial process” and urging “restraint” — to which Gorsuch and Kavanaugh both issued compelling rebuttals.

Jackson also adopted the “it isn’t happening, and we shouldn’t ban it” logic of SAFE Act opponents. First, she argued that “a so-called ‘universal injunction’” is “not what the District Court did here.” Then immediately she argued that “whether federal courts have the power to issue ‘universal injunctions’ is ‘an important question that could warrant our review in the future’ not a foregone conclusion dictated by our precedent.” Her dissent was an admirable example of the style of judicial activism that could be described as, “Tell me the outcome, and I’ll provide the reasoning.” Alas, for the progressives who favor this approach, Jackson’s arguments failed to sway even the moderates on the court.

One noteworthy line signaled Jackson and Sotomayor’s stance too. “This Court will almost certainly have a chance to consider the entirety of this case soon, whoever prevails below,” wrote the dissent. Thus, they too expect to hear a SAFE Act appeal from a lower court soon.

Conclusion

The merits of Idaho’s law protecting minors from gender transition procedures were not at issue in the Supreme Court’s Monday decision. The justices devoted all their attention to debating the propriety of universal injunctions and how best to restrain their expanding emergency docket.

Nevertheless, the opinions still offered the first, tiny clues into how the justices are thinking about the issue. Five justices — three conservatives and two progressives — went out of their way to signal either that they are eager or that they expect to hear a case on a state law protecting minors from gender transition procedures soon; at least four justices must agree for the Supreme Court to hear a case.

Additionally, despite the cut-and-dried procedural question at issue in this ruling, three justices chose to dissent from the majority for what seem to be political considerations. Two of those three justices issued a dissent that was weak on reasoning, giving further support to the idea that there are political considerations at play. On the other hand, the other six justices did not seem hostile to Idaho’s law for political reasons. 

“Idaho’s law rightly supports children’s natural biological development, ensuring that children experiencing gender dysphoria have a chance for comprehensive healing and compassionate mental health support,” said ADF Vice President of Litigation Strategy and Center for Conscience Initiatives Jonathan Scruggs, who is helping to defend the Idaho law. “Respected authorities continue to find that the overwhelming majority of children will naturally resolve their dysphoria as they mature. … That’s why countries like Sweden, England, and Finland … are now restricting them and protecting children from the devastating effects they have had on countless lives.”