When the U.S. Supreme Court overturned Roe v. Wade with their now infamous ruling in Dobbs v. Jackson Women’s Health Organization, the adverse disruptions to both the legal landscape of abortion and the quality of life of both abortion seekers and pregnant patients across the country were nearly immediate.
But, the dystopia of Dobbs holding isn’t limited to reproductive freedoms—it has also endangered other constitutional privacy matters that determine the right to purchase and use contraception, the right of same-sex intimacy and marriage, and the right to marry across racial lines. However, what’s become clear is that the far right intends to test the judicial system for future breaches by first targeting transgender people’s access to gender-affirming care.
“In Dobbs, the Court rescinded the right to abortion in part because the Constitution does not explicitly mention it and because there were examples in the nation’s history of abortion being regulated or banned,” Scott Skinner-Thompson, Associate Professor at the University of Colorado Law School, told The New Republic. “Those same characteristics apply to a whole host of currently recognized rights grounded in bodily autonomy and intimacy, including the right to contraception and marital autonomy, making those rights vulnerable to revocation by the Supreme Court.”
In the past year, nearly half the country has restricted access to such care for transgender youth, despite it being endorsed by nearly all major medical associations. According to transgender advocate and journalist Erin Reed, the attacks on gender-affirming care and access to abortion are “two sides of the same coin.”
“So there are substantial ties between the abortion fight and the fight for transgender rights,” Reed told The New Republic. “Immediately upon the Dobbs decision, I’m talking the ink was not even dry on the paper, we had a filing in Alabama stating the Dobbs decision shows that that that gender affirming care is not deeply and deeply rooted in this nation’s history and traditions.”
These twinned attacks on abortion rights and access to gender-affirming care are both efforts to undermine bodily autonomy. The states restricting access to gender-affirming care are the same states banning abortion and, in many cases, the lawmakers supporting abortion bans have also introduced anti transgender legislation.
“The current efforts to control individual freedom and bodily autonomy, whether centered on women’s rights, transgender rights, and/or the incarceration and state violence toward people of color, vividly illustrate that patriarchy, cis/heteronormativity, and racism are interlocking systems of control and subordination,” Skinner-Thompson said. “These regulatory efforts should not be viewed in isolation, as they build on each other and compound each other, underscoring that the freedoms of what are often viewed as siloed minoritized communities are, in fact, intimately linked together.”
Many of the same Christian-Right organizations that lobbied to reverse Roe, most notably the Alliance Defending Freedom and the Heritage Foundation, are part of a coalition currently lobbying for gender affirming care bans, as well as a host of other anti-LGBTQ legislation in state legislatures across the country.
“The Alliance Defending Freedom has been cited as one of the major authors for legislation that bans gender affirming care and this is the exact same group that is responsible for the if mifepristone ruling in Texas” Reed said. The abortion pill mifepristone accounted for more than half of U.S. abortions in 2022 which according to the Guttmacher Institute. It also has a number of medical applications beyond abortion that will negatively impact a wider universe of pregnant patients if it’s banned.
The enactment of gender-affirming care bans across the country immediately triggered legal challenges and many judges across the country issued preliminary injunctions to temporarily halt large portions of states’ gender-affirming care bans as lawsuits make their way through the judicial process. These judges ruled that the bans would cause “irreparable harm” to transgender youth and were likely violations of the Constitution. Specifically, district courts found that the states’ bans on gender-affirming care for transgender minors not only infringed on a parent’s fundamental right to direct the medical care of their children under the Fourteenth Amendment, it also violated the Equal Protection Clause.
However, when the states appealed to the Sixth and Eleventh Circuits, the courts’ rulings illustrated what the dissent in Dobbs had feared—that courts would use the Dobbs decision to threaten and undermine other constitutional rights, starting with transgender minors’ access to gender-affirming care. In both L.W. v. Skrmetti and Eknes-Tucker v. Marshall, the district courts granted Plaintiffs’ motions for preliminary injunction, enjoining defendants from enforcing the gender-affirming care bans; the Circuit Courts vacated both decisions. These rulings in the Sixth and Eleventh Circuit Courts upheld the legality of the states’ gender-affirming healthcare bans, asserting that transgender healthcare is not “deeply rooted in the nation’s history or traditions”—the same justification used in the Dobbs decision.
“Following the script of Dobbs, some courts such as the 6th and 11th Circuits have concluded that since governments have regulated the medical profession and treatment of patients historically, there is likely no right to gender-affirming care,” Skinner-Thompson said. “In part because of judicial rollback of fundamental due process rights, I believe it may be most strategic to understand the broad legislative efforts to regulate transgender people out of existence as grounded in unconstitutional animus toward a particular population in violation of the Equal Protection Clause.”
True to form, the Circuit Courts in Skrmetti and Eknes-Tucker rejected the argument that gender-affirming healthcare bans implicated a protected class in which heightened scrutiny applied. According to the Sixth Circuit, “It’s highly unlikely, as an initial matter, that the plaintiffs could show that the Act lacks a rational basis.”
“The reality that the [gender-affirming care] drugs’ effects correspond to sex in these understandable ways and that Tennessee regulates them does not require skeptical scrutiny.” The Sixth Circuit Court’s ruling explicitly brought Dobbs into the forefront. “If a law restricting a medical procedure that applies only to women does not trigger heightened scrutiny, as in Dobbs, a law equally applicable to all minors, no matter their sex at birth, does not require such scrutiny either,” the opinion states.
Similarly, the Eleventh Circuit stated that, while the gender-affirming healthcare ban “restricts a specific course of medical treatment that, by the nature of things, only gender nonconforming individuals may receive,” heightened constitutional scrutiny is not triggered “unless the regulation is a ‘mere pretext designed to effect an invidious discrimination against members of one sex or the other, as explained by the Supreme Court in Dobbs.”
As to the plaintiffs’ due process claim, the Sixth Circuit held that parents do not have a “general right to receive new medical or experimental drug treatments” because gender-affirming care was not “deeply rooted in the country’s history and traditions and thus beyond the democratic process to regulate.” Similarly, the Eleventh Circuit held that “the use of these medications in general—let alone for children almost certainly is not “deeply rooted” in our nation’s history and tradition.”
“The ‘deeply rooted’ test, like the ‘originalist’ legal framework favored by the far right, is a [piece of] poorly-disguised jargon designed to justify and maintain historical systems of oppression,” William Horne, Arthur J. Ennis Postdoctoral Fellow at Villanova University, told The New Republic. “This should come as no surprise to those versed in the history of our nation’s courts, which have long used precisely these tactics to undermine civil rights and human dignity.”
“It is worth noting that the ‘deeply rooted’ test relies almost entirely on whitewashed, ‘great man’ versions of history that celebrate the rich and powerful at the expense of everyone else,” Horne continued.
Although hormone therapy and sex reassignment surgery have been available to transgender individuals since at least the early 1900s, the Eleventh Circuit claimed that puberty blockers were first used in the 1980’s and, therefore, were not rooted in the nation’s history.
“If [the courts are] going to say that anything gay is rooted in history, anything trans, I would argue, is just as rooted in history,” queer historian Hugh Ryan says. “And then if you want to say beyond that…what we would call trans identities [are] operative in American history [and] operative globally, [and] cross culturally.”
Ryan goes on to say that while medicalized transition was first documented in the late 1920s, many different cultures had a concept of gender crossing that includes cultural rituals and procedures.
“Medicalized gender transitions are certainly older than, say, automatic rifles, yet the Supreme Court insists they are covered by the Second Amendment despite not being ‘deeply rooted’ in history,” Ryan continues.
Additionally, in December the Judge B. Lynn Winmill of the US District Court for the District of Idaho found that a parent’s right to decide their children’s healthcare, including access to gender affirming care, was, in fact, “deeply rooted in our nation’s history and traditions and implicit in our concept of ordered liberty.”
According to Katie Eyer, a Law Professor at Rutgers University, equal protection has never employed such a test, and adopting such a historical approach in the courts would radically shift equal protection jurisprudence.
“The Supreme Court certainly has not said they’re going to radically shift their equal protection jurisprudence to make it a truly originalist jurisprudence,” Eyer told The New Republic. “If either the lower courts or the Supreme Court itself were to do that, that would upend pretty much almost everything that we know about modern equal protection jurisprudence. It would just be a totally different framework.”
Eyer is optimistic that the Supreme Court will not use Dobbs to upend landmark cases like Obergefell, which legalized gay marriage, and Lawrence, which ruled that criminalizing homosexuality was unconstitutional. But transgender advocates are increasingly concerned about whether the courts will be bolder about upholding gender-affirming care bans.
As a circuit split looms regarding the constitutionality of gender-affirming care bans, anti-LGBTQ and anti-abortion activists are contemplating new ways to endanger reproductive and transgender rights. In September, the Heritage Foundation published “Project 2025,” a playbook of actions they recommend the next Republican President take during their first 180 days of leadership. The blueprint includes recommendations to remove discrimination protections for LGBTQ+ people from the law, conflate LGBTQ+ subjects with adult-only content, and criminalize the distribution of abortion pills by mail.
There is also a push by conservative federal lawmakers to include gender affirming care bans
in the new “Hyde Amendment.” In July, Representative Marjorie Taylor Greene proposed a series of amendments to a Food and Drug Administration appropriations bill in hopes of banning all federal spending on gender affirming care. Conservatives also added similar amendments this summer to the Health and Human Services appropriations and the defense appropriations bills.
Simultaneously, Republicans in state legislatures, emboldened by support from conservative judges, are moving to target transgender adults using the same playbooks utilized tlimit people’s access to abortions. In April, Indiana Republican Governor Eric Holcomb signed a bill prohibiting the use of public funds to pay for prisoners’ gender-affirming surgery; a move advocates warned should serve as a “canary in the coalmine” warning of future attacks on the transgender community. In fact, in January conservative lawmakers from Michigan and Ohio confirmed that the “endgame” is to bar all transgender people, not just trans kids, from accessing gender-affirming care.
The Sixth and Eleventh Circuit Courts’ reliance on the Dobbs decision in L. W. v. Skrmetti and Eknes-Tucker v. Marshall will have a devastating effect on transgender youth in those circuits, and it may be a frightening forecast for the endangerment of other substantive due process rights, such as the right to purchase and use contraception and the right of same-sex intimacy and marriage. Nonetheless, these troubling decisions also offer reproductive justice and LGBTQ activists’ common ground to expand community and develop an intersecting movement together.
“I think if success is to be had it has to be had together and it has to be done intersectionally,” Reed said. “If we are going to move forward in a way that is protective for either one of these groups, trans people and people who might be seeking abortions, it’s got to be collaborative. Because if you lose one of them, if you let go of one of them, you’re going to risk the whole movement. They’re going to use the exact same precedents against one another. And I think that’s clear after the Dobbs ruling.”
