Less than a week after oral arguments were concluded in the landmark U.S. v. Skrmetti case, most pundits and legal experts seem to agree the U.S. Supreme Court is poised to uphold Tennessee’s law banning gender affirming health treatments for minors.

Shannon Minter, however, is not convinced.

In fact, as the legal director for the National Center for Lesbian Rights told the Blade during an interview on Tuesday, “neither I nor the lawyers I know who are following and have litigated these cases” buy into the “negative” analysis published by many mainstream press outlets after the parties addressed the justices at One First Street on Dec. 4.

“I was totally surprised,” Minter said, and “really disappointed,” in coverage of the oral arguments that appeared in places like SCOTUSblog, where Amy Howe wrote that “nearly all of the court’s conservative majority expressed skepticism about a challenge to Tennessee’s ban on puberty blockers and hormone therapy for transgender teenagers.”

The article was hardly an outlier. The New York Times reported it was “probable” that “there were at least five votes for rejecting the equal protection challenge to the law,” while Slate’s Mark Joseph Stern explained that Skrmetti will determine whether “constitutional limits on sex discrimination” can “survive this 6-3 conservative supermajority” and then concluded that “after two and a half hours of arguments, it appears the answer will be no.”

Conservative justices not in lockstep

From the interpretation of key exchanges between the justices and the parties last week to assessments of whether and to what extent certain conservatives might be inclined to join their liberal colleagues in this case and expectations for how precedent-setting decisions could shape its outcome, Minter offered a variety of reasons for why he is skeptical of the reasoning that undergirds much of the mainstream opinion on where the court is likely to land when a decision in Skrmetti is published, as expected, in June 2025.

Asked why his take on Wednesday’s oral arguments diverged so significantly from those offered by many reporters and legal analysts, Minter suggested that conservative Justice Samuel Alito might be responsible to some extent for “the negative perception [reflected] in the mainstream press” because he was “unremittingly negative and spoke a lot” and “took up most of the space.”

Last week aside, given his well established, deeply conservative ideological bent and record of skepticism toward LGBTQ rights, one might reasonably expect Alito to issue a decision that would uphold Tennessee’s trans healthcare ban. Likewise with respect to Justice Clarence Thomas who, compared to Alito, is hardly less conservative or more solicitous of opportunities to expand the LGBTQ community’s rights and freedoms.

Minter characterized both justices’ engagement with the Skrmetti litigants as “negative,” adding that another conservative on the bench, Brett Kavanaugh, was occasionally prickly but otherwise seemed eager to understand the nuances of the case and address questions like whether or how “a ruling in favor of the plaintiffs, here” might “predetermine what we would have to do in a sports case.”

By contrast, it is difficult to predict where the other conservatives on the high court might land on legal questions central to the case. Neil Gorsuch, for instance, was difficult to read even before he declined to ask a single question or otherwise speak when the court heard oral arguments last week.

Minter noted that “less than four years ago when the court issued its decision in Bostock v. Clayton County, it was Gorsuch whose majority opinion, cosigned by the conservative Chief Justice John Roberts and their liberal colleagues, recognized “that discrimination because a person is transgender is inherently based on sex, that it is a type of sex discrimination.”

“So the issue here” in the Skrmetti case “looks awfully similar,” Minter said, because the core legal questions concern the constitutionality of “a statute that targets transgender people” and confronts the court with the question of “whether or not [the law] discriminates based on sex.”

Acknowledging that one should not read too deeply into Gorsuch’s decision to play his hand “extremely close to the vest” during oral arguments, Minter said, “I would like to think that if he had a significant change of view” since authoring the court’s landmark opinion on anti-trans discrimination in 2020, the justice would have “wanted to ask some questions to explore that.”

For these reasons, “just from the very outset,” one might reasonably expect or at least “be hopeful that Justice Gorsuch will continue to [treat] these issues the same way that he did in Bostock,” Minter said.

He added that Roberts, likewise, was careful last week not to indicate which direction he was leaning and instead asked both parties to address concise but challenging questions. While Minter conceded that “It’s hard to draw any definitive conclusion,” he said the chief justice’s performance offered little reason to suspect that he has “shifted his fundamental understanding of these issues from one case to another.”

In a more “encouraging” showing last week, the court’s sixth conservative justice, Amy Coney Barrett, appeared to be “taking these issues very seriously” and “very genuinely grappling with whether or not this is a sex based law, and even with whether discrimination against transgender people, which is considered in its own right, [should] be subject to some sort of heightened scrutiny,” Minter said.

Another major reason for optimism, Minter said, was the “very belabored” discussion of Bostock on Wednesday that was kicked off by the court’s interest in revisiting recent caselaw and the petitioners’ masterful application of relevant precedent to legal questions at issue in Skrmetti.

Elizabeth Prelogar, the Biden-Harris administration’s U.S. solicitor general who represents the federal government and argues alongside the petitioners, did “such a beautiful job of saying that the analysis of Bostock itself was not new,” but rather “drew upon preexisting equal protection case law,” Minter said.

Importantly, he said Prelogar was careful to delineate how both the statutory proscriptions against workplace discrimination ordained by Title VII of the Civil Rights Act of 1964 and the rights guaranteed by the Equal Protection Clause of the 14th Amendment “rely on something called but-for causation, where all you have to show is that sex, in this case, was a but-for cause of the discrimination — meaning it doesn’t have to be the only cause; there can be other factors at play, but as long as it is a cause, it’s discrimination.”

“The reason Bostock was a surprise is just that, sadly, we’re so accustomed to the law not being applied equally or fairly to transgender people,” said Minter, who credited Gorsuch for applying “the law and the preexisting analysis honestly and fairly to transgender people” and deciding, “correctly,” that “there’s just no way to apply this framework that we’ve always applied and not come to the conclusion that this is sex discrimination.”

After the 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned decades-old abortion protections that were first established with Roe v. Wade in 1973, critics argued the conservative justices had cavalierly abandoned the principle of stare decisis, which holds that courts should abide or defer to previous precedent-setting decisions, where possible, especially in landmark decisions that govern how people live their lives.

Asked whether the Supreme Court might be less inclined to overturn decisions like Bostock that were issued more recently and authored by the justices who currently serve on the bench, Minter said “absolutely,” adding that it would be “extraordinary for them to not follow the analysis and reasoning in a decision they decided so recently.”

The stare decisis issue provides more reason for optimism about Skrmetti, Minter said. Overturning important precedent is “unsettling to the stability of the law and to the status and stature of the court,” and “it helps that Bostock was a 6-3 decision” rather than a narrower, more contentious case settled by a 5-4 majority.

The future of gender-affirming care

The path by which U.S. v. Skrmetti reached the highest court in the land is a case study of the devastating consequences, the second and third-order effects, of scapegoating a vulnerable community with a moral panic that is allowed to fester thanks to fear and bigotry.

After several years in which state legislatures collectively introduced hundreds of bills targeting the rights of trans young people and their families, including access to healthcare, the Movement Advancement Project reports that 37 percent of transgender youth (ages 13-17) now live in places that legally prohibit them from accessing best practice medication and surgical care, with dozens of states enforcing these bans.

Among them, of course, is Tennessee, where a complaint was filed last year and fast-tracked through the federal courts such that now, justices on the Supreme Court are debating whether unelected judges or democratically elected lawmakers should adjudicate complex questions that advocates (for queer and trans communities, for civil liberties, for healthcare providers) believe are best addressed by patients and families or caregivers in close coordination with trained specialists who operate under evidence-based guidelines for clinical practice.

Apart from litigation before the high court, another development that signals the appetite and the political will for bringing anti-trans policies and politics from statehouses to the national stage was the massive spend on anti-trans advertising to support Trump and other Republican campaigns during the 2024 election cycle, which Minter noted was “very painful and distressing” for trans people and their families.

After Nov. 5, debates about whether and the extent to which the GOP’s anti-trans messaging strategy may have delivered electoral victories for the president-elect, or for the congressional Republicans who maintained control of the U.S. House and reclaimed their majority in the U.S. Senate, have given way to concerns about the escalation of transphobic hate speech and the legislative and legal attacks against the community that began to ramp up well before the incoming Trump-Vance administration will be seated with the 119th Congress next month.

At this juncture, Minter said that trans young people and their families must wait to see not only how the Supreme Court decides U.S. v. Skrmetti and what the corresponding implications might be in terms of their access to healthcare, but also whether and how and how aggressively the attacks against them will take shape in January and beyond.

In the meantime, “there are some basic things people can do to protect themselves,” Minter said. For example, “this would be a good time to get your identity documents updated, if you haven’t done that yet. It’s a good time to make sure your prescriptions are current. if you live in a state that has banned trans healthcare for minors and you’re the parent of a transit child, you know, it’s good to explore out of state resources. It would be a good thing for transgender people to go ahead now and get copies of their medical records, or at least make sure you know how you can quickly do so in case you do need to make any adjustments to how you’re obtaining the care, if you need to find a new provider or explore out of state resources, depending on what may happen in your state.”

He added, “Now, if there’s some sort of national action,” like a federal ban on access to transgender medicine for minors, “then, of course, it’s not necessarily going to matter where you live, or what state you live in” but “NCLR and other legal groups are prepared to immediately challenge” any such action on the national level.

Here again, Minter, a transgender litigator who came out in his 30s and who throughout his career has argued highly consequential cases, with some yielding major advancements in LGBTQ civil rights, is optimistic. “The post election polling has shown that the public would not be supportive of that action,” he said, because Americans “would far prefer the federal government, the president, and Congress focus on issues that matter broadly to people, especially the economy.”

Earlier, when discussing an exchange between Barrett and the parties, which concerned the justice’s questions about America’s history of de jure (official, lawful) anti-trans discrimination, Minter remarked that”It’s a good thing” ACLU attorney Chase Strangio, who represents the plaintiffs alongside Prelogar, was there “to explain to the court that, yes, there certainly has been a long history of governmental discrimination against transgender people.”

Ticking through some examples Strangio had shared with the court, Minter noted American officials’ enforcement of bans on military service, bans on government employment, bans on marriage, bathroom bans, gendered dress codes based on birth sex, and policies under which trans parents or guardians were forced to forfeit custody of their children or dependents.

Barrett’s pursuit of this line of questioning, Minter said, was an optimistic sign. And perhaps there is even reason for hope that a conservative Christian Trump-appointed jurist’s interest in the country’s record of anti-trans discrimination could carry implications beyond how she decides the tremendously consequential case that is now before the court.

Either way, Barrett — along with the other justices and their clerks and the courtroom staff, together with attorneys, spectators, journalists, and other observers who were lucky enough to score a spot to see the action live from One First Street (or, at least, were able to tune in remotely) — saw Strangio make his case on Wednesday, becoming the first out transgender lawyer ever to argue before the high court.

The State Department on Tuesday honored a Ghanaian LGBTQ activist and seven other human rights advocates from around the world.

Secretary of State Antony Blinken presented Rightify Ghana Executive Director Ebenezer Peegah with the Secretary of State’s Human Rights Defender Award during a ceremony at the State Department.

“He’s been a prominent figure advocating for equality and justice,” Deputy Assistant Secretary of State in the Bureau of Democracy, Human Rights, and Labor Enrique Roig told the Washington Blade on Tuesday during an interview.

The other human rights activists who received the award include:

• Mary Ann Abunda, a migrant workers advocate in Kuwait

• Permanent Human Rights Assembly of Bolivia President Amparo Carvajal

• Aida Dzhumanazarova, country director for the International Center for Not-for-Profit Law in Kyrgyzstan

• Mang Hre Lian, founder of the Chin Media Network in Myanmar

• Juana Ruiz of Asociación Asvidas, an organization that advocates for survivors of gender-based violence in Colombia

• Rufat Sararov, a former prosecutor who runs Defense Line in Azerbaijan

The State Department posthumously honored Thulani Maseko, a prominent human rights activist from Eswatini who was killed in 2023. His wife, Tanele Maseko, accepted the award on his behalf.

The ceremony took place on International Human Rights Day, which commemorates the U.N. General Assembly’s ratification of the Universal Declaration of Human Rights on Dec. 10, 1948. Sararov did not attend because Azeri authorities arrested him before he could obtain a visa that would have allowed him to travel to the U.S.

Ghanaian Supreme Court to rule on anti-LGBTQ law on Dec. 18

Ghanaian lawmakers on Feb. 28 approved the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill that would, among other things, criminalize allyship. President Nana Akufo-Addo has said he will not sign the bill until the Supreme Court rules on whether it is constitutional or not. 

The Supreme Court is expected to rule on the law on Dec. 18. John Dramani Mahama, the country’s president-elect, will take office on Jan. 7.

Ruig applauded Peegah’s efforts to highlight the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill.

“For us in the U.S. government, the work that he’s done on this issue has also been instrumental in our own discussions with the current government as well as the incoming administration around the concerns that we’ve expressed with regards to this legislation,” Roig told the Washington Blade “He’s been an important partner in all this as well.”

Peegah on Aug. 14 met with Pope Francis at the Vatican.

At least 1,000 people rallied outside the U.S. Supreme Court on Wednesday as the justices considered whether a Tennessee law banning gender-affirming medical care for transgender youth is unconstitutional.

Dueling rallies began early in the morning, with protesters supporting trans rights and protesters supporting Tennessee’s ban on gender-affirming care each stationed with podiums on opposite sides.

Trans rights protesters, who significantly outnumbered the other group, held signs reading “Keep hate out of healthcare,” and “Respect family medical decisions.” On the other side, protesters carried signs with messages like “Sex change is fantasy,” and “Stop transing gay kids.”

Ari, a trans person who grew up in Nashville and now lives in D.C., spoke to the Washington Blade about the negative effects of the Tennessee law on the well-being of trans youth. 

“I grew up with kids who died because of a lack of trans healthcare, and I am scared of that getting worse,” they said. “All that this bill brings is more dead kids.”

The Tennessee law that is being challenged in U.S. v Skrmetti took effect in 2023 and bans medical providers from prescribing medical treatments such as puberty blockers and hormone therapies to trans youth. 

A number of Democratic lawmakers, including U.S. Rep. Mark Takano (D-Calif.), co-chair of the Congressional Equality Caucus, and U.S. Sens. Ed Markey (D-Mass.) and Jeff Merkley (D-Ore.) addressed the crowd in support of trans rights. 

In his speech, Merkley said Americans deserved freedom in accessing gender affirming care and criticized the law as political intervention in private medical decisions. 

“Americans should have the freedom to make medical decisions in the privacy of their doctor’s office without politicians trying to dictate to them,” he said. 

Robert Garofalo, a chief doctor in the division of Adolescent and Young Adult Medicine at a Chicago children’s hospital, emphasized the importance of trans youth having access to gender affirming care. 

“We [providers] are seeing patients and families every day, present with crippling fears, added stress and anxiety as they desperately try to locate care where it remains legal to do so,” Garofalo, who is also a professor of pediatrics at Northwestern University, told the crowd. “Transgender children and adolescents deserve health care that is grounded in compassion, science and principles of public health and human rights. They must not be denied life saving medical care — their lives depend on it.”

Major U.S. medical associations, including the American Medical Association and the American Academy of Pediatrics, support gender affirming care. 

Research has found gender affirming care improves the mental health and overall well-being of gender diverse children and adolescents. Those who are denied access to gender affirming care are at increased risk for significant mental health challenges.  

An unlikely coalition came out to support Tennessee’s ban on gender affirming care. Far-right figures, such as U.S. Rep. Marjorie Taylor Greene (R-Ga.) and Matt Walsh — both of whom have a history of making homophobic statements — were joined by groups such as the LGBT Courage Coalition and Gays Against Groomers. 

The groups questioned the quality of the research finding gender-affirming care to have a positive effect on the well-being of trans and gender nonconforming youth and argued that minors cannot consent to medical treatment. Ben Appel, a co-founder of the LGBT Courage Coalition, which he notes was “co-founded by gay, lesbian, bisexual, and trans adults who oppose pediatric gender medicine, which we know to be non-evidence-based and harmful to young gay people,” said gender nonconformity is often part of the lesbian, gay, and bisexual experience and should not be “medicalized.” 

“I care about the adult gay detransitioners who have been harmed … by these homophobic practice,” he said “They should have just been told they’re gay.” 

Claire, a Maryland resident who attended the rally in favor of the Tennessee law and claims to have detransitioned, described being prescribed testosterone and having a mastectomy at 14, medical treatments she says she was unable to consent to at that age. She doesn’t oppose gender affirming care for adults but is opposed to “medical experimentation on children.”

“I think that adults should be allowed to do whatever they want with their bodies. I think that it is if someone is happy with the decision that they made that’s great,” she said. “I was not able to make that decision. I was a child.” 

But trans activists fear that a ruling in favor of Tennessee could pave the way for states to restrict access to gender-affirming care for adults.

“There’s also broader implications for civil rights and trans rights, more broadly, for adults in the future. There are some states that have tried to ban some healthcare for adults — they haven’t yet — but I think that’s something we might also see if the Supreme Court rules that way,” Ethan Rice, a senior attorney at Lambda Legal, one of the legal organizations representing the plaintiffs in U.S. v Skrmetti, said.

In the case, three Tennessee families and a physician are challenging the Tennessee law on the grounds that it violates the Equal Protection Clause in the 14th Amendment by drawing lines based on sex and discriminating against trans people. The statute bans medications for trans children while allowing the same medications to be used when treating minors suffering from other conditions, such as early-onset puberty. 

A 2020 Supreme Court decision determined sex-based discrimination includes discrimination based on gender identity or sexual orientation. The key question in U.S. v. Skrmetti is whether this interpretation applies under the Equal Protection Clause.

“We really hope that the Supreme Court recognizes their own precedent on sex discrimination cases and comes out the right way, saying this is sex discrimination by the state of Tennessee and thus is unconstitutional,” Rice said. 

Twenty-six states currently have laws or policies restricting minors’ access to gender-affirming care. If the court rules against Tennessee, similar bans in other states would also be unconstitutional, granting trans youth greater access to gender affirming care nationwide. 

Edith Guffey, the board chair at PFLAG, expressed doubt the court will strike down the law, citing its sharp ideological turn to the right in recent years. But she said she remains hopeful. 

“I hope that the court will … step outside agendas and look at the needs of people and who has the right to say what’s good for their children,” she said.

Chase Strangio, an ACLU attorney representing the families, on Wednesday became the first openly trans lawyer to argue before the Supreme Court. He addressed the trans rights protesters after the hearing. 

“Whatever happens, we are the defiance,” Strangio said. “We are collectively a refutation of everything they say about us. And our fight for justice did not begin today, it will not end in June — whatever the court decides.”