The questions made it clear: Supreme Court justices are divided over gender-related health care.
During oral arguments last week in the court’s case about medical options for transgender minors, more liberal justices raised concerns about the harm that could be done by blocking access to treatments, while more conservative justices emphasized the harm that could be done by making treatments too available.
Both sets of justices are worried about kids, but they clashed over which legal path would create a safer future.
That internal split over gender-related laws is once again in the spotlight in the Supreme Court’s latest order list, which was released Monday morning.
The list revealed that the court will not hear a new case involving transgender minors. It also revealed that three more conservative justices are unhappy with their colleagues’ decision.
Supreme Court on parental rights
The case, called Parents Protecting Our Children v. Eau Claire Area School District, Wisconsin, centers on how a school district in Wisconsin deals with students questioning their gender identity and what rights parents have to be involved in the process.
Eau Claire’s policy says, in part, that school teachers and administrators should not notify a student’s parents about what’s going on until they’ve spoken with the student about whether they potential ramifications of that conversation, according to SCOTUSblog.
Once the policy was made public, a group of parents sued the school district, alleging that administrators were violating their parental rights and religious freedom. Federal district and appeals courts ruled against the parents, saying that they lacked standing to challenge the gender-related guidelines since none of their own children were transgender.
The parents appealed to the Supreme Court, where they needed at least four justices to vote to hear the case in order for it to be added to the oral arguments schedule. Monday’s order list shows they only got three.
The list includes a dissent from Justice Samuel Alito, which is joined by Justice Clarence Thomas. Justice Brett Kavanaugh didn’t join the dissent, but the document says that he “would grant the petition for a writ of certiorari.”
In his dissent, Alito argued that some lower courts are ruling on standing to avoid having to face tough questions about issues like gender-related care and parental rights head-on.
“I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions. While it is important that federal courts heed the limits of their constitutional authority, it is equally important that they carry out their ‘virtually unflagging obligation ... to exercise the jurisdiction given them,’” he wrote, quoting a past ruling.
Supreme Court on women’s sports
Alito’s dissent doesn’t change the fact that the previous ruling against the group of parents in Eau Claire will stand. But it does make it clear that he and at least one or two other justices are eager for the court to dive more deeply into legal battles involving the transgender community.
The justices will have another opportunity to do just that as soon as this month, as they continue weighing whether to hear two cases on the court’s doorstep about transgender athletes in women’s sports.
Little v. Hecox, which centers on Idaho’s prohibition on transgender women participating in women’s sports, and West Virginia v. B.P.J., which centers on a similar law in West Virginia, were both distributed for the justices’ weekly private conference in late November.
The Supreme Court has not yet announced whether the justices agreed to hear one or both cases.