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Expert challenges prevailing analysis that SCOTUS will uphold trans healthcare ban

NCLR’s Shannon Minter more optimistic about U.S. v. Skrmetti

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11 months ago

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NCLR Legal Director Shannon Minter (Washington Blade file photo by Michael Key)

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.

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U.S. Supreme Court

Supreme Court rejects Kim Davis’s effort to overturn landmark marriage ruling

Justices declined to revisit the Obergefell decision

Published

1 week ago

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November 10, 2025

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Kim Davis at 2015 Values Voters Summit. (Washington Blade photo by Michael Key)

The U.S. Supreme Court has declined to hear an appeal from Kim Davis, the former Rowan County, Ky., clerk best known for refusing to issue marriage licenses to same-sex couples after the landmark 2015 Obergefell v. Hodges decision legalized same-sex marriage nationwide.

Following the Obergefell ruling, Davis stopped issuing marriage licenses altogether and has since filed multiple appeals seeking to challenge same-sex marriage protections. The court once again rejected her efforts on Monday.

In this latest appeal, Davis sought to overturn a $100,000 monetary award she was ordered to pay to David Moore and David Ermold, a same-sex couple to whom she denied a marriage license. Her petition also urged the court to use the case as a vehicle to revisit the constitutional right to same-sex marriage.

The petition, along with the couple’s brief in opposition, was submitted to the Supreme Court on Oct. 22 and considered during the justices’ private conference on Nov. 7. Davis needed at least four votes for the court to take up her case, but Monday’s order shows she fell short.

Cathy Renna, the director of communications for the National LGBTQ Task Force, a non-profit organization that works towards supporting the LGBQ community through grassroots organizing told the Washington Blade:
“Today’s decision is not surprising given the longshot status of Davis’s claim, but it’s a relief that the Supreme Court will not hear it, given the current make up of the court itself. We hope that this settles the matter and marriage equality remains the law of the land for same-sex couples.”

Human Rights Campaign President Kelley Robinson released the following statement:

“Today, love won again. When public officials take an oath to serve their communities, that promise extends to everyone — including LGBTQ+ people. The Supreme Court made clear today that refusing to respect the constitutional rights of others does not come without consequences.

Thanks to the hard work of HRC and so many, marriage equality remains the law of the land through Obergefell v. Hodges and the Respect for Marriage Act. Even so, we must remain vigilant.

It’s no secret that there are many in power right now working to undermine our freedoms — including marriage equality — and attack the dignity of our community any chance they get. Last week, voters rejected the politics of fear, division, and hate, and chose leaders who believe in fairness, freedom, and the future. In race after race, the American people rejected anti-transgender attacks and made history electing pro-equality candidates up and down the ballot.

And from California to Virginia to New Jersey to New York City, LGBTQ+ voters and Equality Voters made the winning difference. We will never relent and will not stop fighting until all of us are free.”

The Log Cabin Republicans, a organization dedicated to conservative LGBTQ people, praising the Court’s decision.

“After months of hand-wringing and fear-mongering by Gay Inc., Democrats, and the media, the conservative majority on the Supreme Court sided with the American people and common sense and declined to revisit marriage equality,” Interim Executive Director Ed Williams said in a statement. “Just like Justice Amy Coney Barrett hinted at earlier this year, Obergefell is settled. Marriage equality has been, and will continue to be, the law of the land.”

This story is developing and will be updated as more information becomes available.

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U.S. Supreme Court

LGBTQ legal leaders to Supreme Court: ‘honor your precedent, protect our families’

Experts insist Kim Davis case lacks merit

Published

1 week ago

on

November 7, 2025

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Protesters outside of the Supreme Court fly an inclusive Pride flag in December 2024. (Washington Blade Photo by Michael Key)

The U.S. Supreme Court considered hearing a case from Kim Davis on Friday that could change the legality of same-sex marriage in the United States.

Davis, best known as the former county clerk for Rowan County, Ky., who defied federal court orders by refusing to issue marriage licenses to same-sex couples — and later, to any couples at all — is back in the headlines this week as she once again attempts to get Obergefell v. Hodges overturned on a federal level.

She has tried to get the Supreme Court to overturn this case before — the first time was just weeks after the initial 2015 ruling — arguing that, in her official capacity as a county clerk, she should have the right to refuse same-sex marriage licenses based on her First Amendment rights. The court has emphatically said Davis, at least in her official capacity as a county clerk, does not have the right to act on behalf of the state while simultaneously following her personal religious beliefs.

The Washington Blade spoke with Karen Loewy, interim deputy legal director for litigation at Lambda Legal, the oldest and largest national legal organization advancing civil rights for the LGBTQ community and people living with HIV through litigation, education, and public policy, to discuss the realistic possibilities of the court taking this case, its potential implications, and what LGBTQ couples concerned about this can do now to protect themselves.

Loewy began by explaining how the court got to where it is today.

“So Kim Davis has petitioned the Supreme Court for review of essentially what was [a] damages award that the lower court had given to a couple that she refused a marriage license to in her capacity as a clerk on behalf of the state,” Loewy said, explaining Davis has tried (and failed) to get this same appeal going in the past. “This is not the first time that she has asked the court to weigh in on this case. This is her second bite at the apple at the U.S. Supreme Court, and in 2020, the last time that she did this, the court denied review.”

Davis’s entire argument rests on her belief that she has the ability to act both as a representative of the state and according to her personal religious convictions — something, Loewy said, no court has ever recognized as a legal right.

“She’s really claiming a religious, personal, religious exemption from her duties on behalf of the state, and that’s not a thing.”

That, Loewy explained, is ultimately a good thing for the sanctity of same-sex marriage.

“I think there’s a good reason to think that they will, yet again, say this is not an appropriate vehicle for the question and deny review.”

She also noted that public opinion on same-sex marriage remains overwhelmingly positive.

“The Respect for Marriage Act is a really important thing that has happened since Obergefell. This is a federal statute that mandates that marriages that were lawfully entered, wherever they were lawfully entered, get respect at the federal level and across state lines.”

“Public opinion around marriage has changed so dramatically … even at the state level, you’re not going to see the same immediate efforts to undermine marriages of same-sex couples that we might have a decade ago before Obergefell came down.”

A clear majority of U.S. adults — 65.8 percent — continue to support keeping the Obergefell v. Hodges decision in place, protecting the right to same-sex marriage. That support breaks down to 83 percent of liberals, 68 percent of moderates, and about half of conservatives saying they support marriage equality. These results align with other recent polling, including Gallup’s May 2025 estimate showing 68 percent support for same-sex marriage.

“Where we are now is quite different from where we were in terms of public opinion … opponents of marriage equality are loud, but they’re not numerous.”

Loewy also emphasized that even if, by some chance, something did happen to the right to marry, once a marriage is issued, it cannot be taken back.

“First, the Respect for Marriage Act is an important reason why people don’t need to panic,” she said. “Once you are married, you are married, there isn’t a way to sort of undo marriages that were lawfully licensed at the time.”

She continued, explaining that LGBTQ people might feel vulnerable right now as the current political climate becomes less welcoming, but there is hope — and the best way to respond is to move thoughtfully.

“I don’t have a crystal ball. I also can’t give any sort of specific advice. But what I would say is, you know, I understand people’s fear. Everything feels really vulnerable right now, and this administration’s attacks on the LGBTQ community make everybody feel vulnerable for really fair and real reasons. I think the practical likelihood of Obergefell being reversed at this moment in time is very low. You know, that doesn’t mean there aren’t other, you know, case vehicles out there to challenge the validity of Obergefell, but they’re not on the Supreme Court’s doorstep, and we will see how it all plays out for folks who feel particularly concerned and vulnerable.”

Loewy went on to say there are steps LGBTQ couples and families can take to safeguard their relationships, regardless of what the court decides. She recommended getting married (if that feels right for them) and utilizing available legal tools such as estate planning and relationship documentation.

“There are things, steps that they can take to protect their families — putting documentation in place and securing relationships between parents and children, doing estate planning, making sure that their relationship is recognized fully throughout their lives and their communities. Much of that is not different from the tools that folks have had at their disposal prior to the availability of marriage equality … But I think it behooves everyone to make sure they have an estate plan and they’ve taken those steps to secure their family relationships.”

“I think, to the extent that the panic is rising for folks, those are tools that they have at their disposal to try and make sure that their family and their relationships are as secure as possible,” she added.

When asked what people can do at the state and local level to protect these rights from being eroded, Loewy urged voters to support candidates and initiatives that codify same-sex marriage at smaller levels — which would make it more difficult, if not impossible, for a federal reversal of Obergefell to take effect.

“With regard to marriage equality … states can be doing … amend state constitutions, to remove any of the previous language that had been used to bar same-sex couples from marrying.”

Lambda Legal CEO Kevin Jennings echoed Loewy’s points in a statement regarding the possibility of Obergefell being overturned:

“In the United States, we can proudly say that marriage equality is the law,” he said via email. “As the Supreme Court discusses whether to take up for review a challenge to marriage equality, Lambda Legal urges the court to honor what millions of Americans already know as a fundamental truth and right: LGBTQ+ families are part of the nation’s fabric.

“LGBTQ+ families, including same-sex couples, are living in and contributing to every community in this country: building loving homes and small businesses, raising children, caring for pets and neighbors, and volunteering in their communities. The court took note of this reality in Obergefell v. Hodges, citing the ‘hundreds of thousands of children’ already being raised in ‘loving and nurturing homes’ led by same-sex couples. The vows that LGBTQ+ couples have taken in their weddings might have been a personal promise to each other. Still, the decision of the Supreme Court is an unbreakable promise affirming the simple truth that our Constitution guarantees equal treatment under the law to all, not just some.”

He noted the same things Loewy pointed out — namely that, at minimum, the particular avenue Davis is attempting to use to challenge same-sex marriage has no legal footing.

“Let’s be clear: There is no case here. Granting review in this case would unnecessarily open the door to harming families and undermine our rights. Lower courts have found that a government employee violates the law when she refuses to grant marriage licenses to same-sex couples as her job requires. There is no justifiable reason for the court to revisit settled law or destabilize families.”

He also addressed members of the LGBTQ community who might be feeling fearful at this moment:

“To our community, we say: this fight is not new. Our community has been fighting for decades for our right to love whom we love, to marry and to build our families. It was not quick, not easy, not linear. We have lived through scary and dark times before, endured many defeats, but we have persevered. When we persist, we prevail.”

And he issued a direct message to the court, urging justices to honor the Constitution over one person’s religious beliefs.

“To the court, we ask it to honor its own precedent, to honor the Constitution’s commands of individual liberty and equal protection under the law, and above all, to honor the reality of LGBTQ families — deeply rooted in every town and city in America. There is no reason to grant review in this case.”

Kenneth Gordon, a partner at Brinkley Morgan, a family law firm that works with individuals and couples, including same-sex partners, to meet their legal and financial goals, also emphasized the importance of not panicking and of using available documentation processes such as estate planning.

“From a purely legal standpoint, overturning Obergefell v. Hodges would present significant complications. While it is unlikely that existing same-sex marriages would be invalidated, particularly given the protections of the 2022 Respect for Marriage Act, states could regain the authority to limit or prohibit future marriage licenses to same-sex couples. That would create a patchwork of laws across the country, where a couple could be legally married in one state but not recognized as married if they moved to or even visited another state.

“The legal ripple effects could be substantial. Family law issues such as adoption, parental rights, inheritance, health care decision-making, and property division all rely on the legal status of marriage. Without uniform recognition, couples could face uncertainty in areas like custody determinations, enforcement of spousal rights in medical emergencies, or the ability to inherit from a spouse without additional legal steps.

“Courts generally strive for consistency, and creating divergent state rules on marriage recognition would reintroduce conflicts that Obergefell was intended to resolve. From a legal systems perspective, that inconsistency would invite years of litigation and impose significant personal and financial burdens on affected families.”

Finally, Human Rights Campaign President Kelley Robinson issued a statement about the possibility of the Supreme Court deciding to hear Davis’s appeal:

“Marriage equality isn’t just the law of the land — it’s woven into the fabric of American life,” said Robinson. “For more than a decade, millions of LGBTQ+ couples have gotten married, built families, and contributed to their communities. The American people overwhelmingly support that freedom. But Kim Davis and the anti-LGBTQ+ extremists backing her see a cynical opportunity to attack our families and re-litigate what’s already settled. The court should reject this paper-thin attempt to undermine marriage equality and the dignity of LGBTQ+ people.”

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Supreme Court rules White House can implement anti-trans passport policy

ACLU, Lambda Legal filed lawsuits against directive.

Published

2 weeks ago

on

November 6, 2025

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(Bigstock photo)

The U.S. Supreme Court on Thursday said the Trump-Vance administration can implement a policy that bans the State Department from issuing passports with “X” gender markers.

President Donald Trump once he took office signed an executive order that outlined the policy. A memo the Washington Blade obtained directed State Department personnel to “suspend any application where the applicant is seeking to change their sex marker from that defined in the executive order pending further guidance.”

The White House only recognizes two genders: male and female.

The American Civil Liberties Union in February filed a lawsuit against the passport directive on behalf of seven trans and nonbinary people.

A federal judge in Boston in April issued a preliminary junction against it. A three-judge panel on the 1st U.S. Circuit Court of Appeals in September ruled against the Trump-Vance administration’s motion to delay the move.

A federal judge in Maryland also ruled against the passport policy. (Lambda Legal filed the lawsuit on behalf of seven trans people.)

 “This is a heartbreaking setback for the freedom of all people to be themselves, and fuel on the fire the Trump administration is stoking against transgender people and their constitutional rights,” said Jon Davidson, senior counsel for the ACLU’s LGBTQ and HIV Project, in a statement. “Forcing transgender people to carry passports that out them against their will increases the risk that they will face harassment and violence and adds to the considerable barriers they already face in securing freedom, safety, and acceptance. We will continue to fight this policy and work for a future where no one is denied self-determination over their identity.”

Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor dissented.

The Supreme Court ruling is here.

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