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Supreme Court temporarily revives Idaho law banning gender affirming care for minors

Mandel Ngan
AFP via Getty Images

The U.S. Supreme Court on Monday granted Idaho's emergency request to temporarily revive a state law banning gender-affirming care for children under the age of 18.

The law, which makes it a felony for doctors to medically treat gender dysphoria in minors, will now go into effect except in the case of two anonymous plaintiffs who have until now been treated with hormones and may continue to receive treatment.

In the Idaho case, the state was not asking the court to address transgender rights head-on. Instead, the state asked the justices to consider whether the scope of the lower court's order blocking the law was appropriate. Idaho argued that the district court judge only had authority to stop the law from applying to the two plaintiffs in the lawsuit, not to prevent its enforcement throughout the state.

A majority of the justices appeared to adopt that novel legal theory on how to treat such emergency applications to the court, though there appeared to be two different camps splitting the conservatives and no clear delineation of what the rule will be henceforth. Chief Justice John Roberts gave no indication of his views and joined neither of the lengthy opinions of Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito, nor the opinion of Justices Brett Kavanaugh and Amy Coney Barrett. Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, dissented. Justice Elena Kagan noted that she would have denied the application for a stay but did not join the dissent.

Nonetheless, the jumble of opinions would appear, at least potentially, to have far-reaching consequences by dramatically limiting the effects of any constitutional challenge to a state or federal law.

While today's action is temporary, so too were the actions of the lower courts, which blocked the law from going into effect while the case was litigated. As a result of Monday's Supreme Court action, the law will take effect immediately and will remain in effect during the ongoing litigation over its constitutionality.

Waiting in the wings are several more bans similar to the one at issue in Idaho. Two of them — from Kentucky and Tennessee — are at the Supreme Court with petitions seeking full review, as opposed to the preliminary review in the Idaho case. The Kentucky and Tennessee laws banning gender-affirming care for minors are currently in effect.

Last year, the court chose not to hear two disputes related to transgender issues, one involving mistreatment of a transgender prisoner and one about a state ban on trans students' participation in sports.

Some 21 states passed laws restricting gender-affirming care for minors last year. All contend they are protecting children from dangerous, unproven treatments they may come to regret later.

Transgender advocates vehemently disagree with that characterization of broadly accepted medical standards of care for gender dysphoria. They caution that medical treatment options are critical to combating anxiety and depression in trans youth and preventing suicide. Both sides agree that not all treatments are appropriate for all ages. But left unresolved is who has the right to decide what is appropriate for each patient: parents and doctors, or the state legislature?

The plaintiffs in this case are two anonymous trans girls who used puberty blockers and currently take estrogen to treat gender dysphoria. Idaho's court filings call them "adolescent boys." The district court found that discontinuing their care would cause "severe psychological distress."

The district court said that the entire law needed to be paused to prevent a flood of lawsuits from every person wanting to continue treatment and to allow the two plaintiffs to actually receive the requested medical care. Lawyers for the plaintiffs also argued that doctors and pharmacists would be reluctant to risk up to 10 years in prison to provide treatment to anyone, plaintiff or not, unless the law is on hold. Monday's Supreme Court ruling will test that theory.

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Nina Totenberg
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
Elissa Harwood