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Supreme Court Agrees to Hear SAFE Act Case

June 24, 2024

The U.S. Supreme Court on Monday agreed to hear a challenge to the 2023 Tennessee law protecting minors from gender transition procedures. After a divided panel of the U.S. Court of Appeals for the Sixth Circuit struck down a preliminary injunction against Tennessee’s law in September, the U.S. Department of Justice (DOJ) appealed that decision to the U.S. Supreme Court.

The nation’s highest court has now agreed to hear the appeal in United States v. Skrmetti. “As a practical necessity, the Supreme Court needed to take up the case,” Family Action Council of Tennessee president David Fowler told The Washington Stand.

The Supreme Court is more likely to consider a case on which the circuit courts are split — that is, where federal appellate courts have issued contradictory precedents over how to handle the constitutional questions at issue. Justice Neil Gorsuch recently noted “an apparent circuit split” on such laws. (Gorsuch noted this in a concurring opinion accompanying an unsigned order that granted Idaho an emergency stay, narrowing a preliminary injunction issued against its law protecting minors from gender transition procedures, in Labrador v. Poe.)

Thus far, four appellate courts have had occasion to rule on state laws protecting minors from gender transition procedures, although only three of them reached the merits of the issue. The Eighth Circuit upheld a lower judge’s ruling that the Arkansas SAFE Act was likely unconstitutional. The Ninth Circuit denied Idaho’s appeal for an emergency stay, but it has not weighed in on the merits of the argument. Meanwhile, the Sixth Circuit struck down preliminary injunctions against similar laws in Tennessee and Kentucky. The Eleventh Circuit then followed the Sixth Circuit’s lead in upholding a law protecting minors from gender transition procedures in Alabama (that decision led a district judge to reinstate Georgia’s law as well).

In U.S. v. Skrmetti, the Supreme Court certified the case to decide a single issue: “Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow ‘a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex’ or to treat ‘purported discomfort or distress from a discordance between the minor’s sex and asserted identity,’ violates the equal protection clause of the 14th Amendment.”

At the district and appellate court levels, transgender activists and the DOJ had challenged Tennessee’s law on two separate grounds, arguing that it violated both the equal protection clause of the 14th Amendment and substantive due process under the 14th Amendment. However, the Supreme Court has agreed to hear arguments on equal protection only, not substantive due process.

“Interestingly,” observed Fowler, the Supreme Court “did not take up the issue raised by the ACLU pertaining to the scope of parental rights, only the equal protection question. That, to me, is a positive because equal protection is owed to ‘persons.’”

This frames the case as a contest between the individual right of persons and third-party institutions like health care providers, Fowler explained. “The court will have to decide whether states, in fulfilling their duty to protect the fundamental right of all persons from injury by third parties … are now forbidden from taking into consideration the historically and legally universal recognition across the earth through time that persons are objectively and profoundly male or female,” he said. “I think the court will not go that far.”

The Supreme Court has scheduled U.S. v. Skrmetti for the term beginning in October 2024, which means the court will likely hear oral arguments sometime in the fall and issue its ruling in the summer of 2025.

Joshua Arnold is a senior writer at The Washington Stand.