Experts Say Wave of Anti-Trans Bills Will Likely End Up Before Supreme Court

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In 2022, state lawmakers have proposed a record 238 bills that would limit the rights of LGBTQ Americans, with about half of them targeting transgender people specifically. 

A bill passed in Alabama on April 7, 2022, made it a felony — punishable by up to 10 years in prison — for a doctor to provide gender-affirming care to minors. 

In Missouri, a bill called the “Save Women’s Sports Act” was signed into law on March 30, 2022, prohibiting students who were assigned male at birth from participating in middle school, high school, and post-secondary teams for women or girls. 

The notorious “Don’t Say Gay” bill from Florida, which Florida Governor Ron DeSantis recently signed into law, prohibits classroom instruction “on sexual orientation or gender identity…in kindergarten through grade 3 or in a manner that is not age-appropriate for students in accordance with state standards.” 

On March 30, Arizona Governor Doug Ducey signed into law two bills restricting the rights of transgender youth; the bills ban gender-affirming surgery for trans minors and bar trans girls and women from participating in female sports.

Last month, Republican Governor Greg Abbott ordered Texas’ child welfare agency to look into reports of underage youth receiving gender-confirming care, deeming it child abuse, resulting in a lawsuit. 

The American Civil Liberties Union, the ACLU of Texas, and Lambda Legal have filed a lawsuit to block the Texas Department of Family and Protective Services from enacting Gov. Greg Abbott’s orders to investigate parents and doctors who provide trans children with gender-affirming care.

The Human Rights Campaign has also said it would file lawsuits against four states with anti-transgender legislation, including Florida, Arkansas, Mississippi and Tennessee.

During the 2022 legislative session, dozens of states will consider legislation related to LGBTQ discrimination.

The Justice Department has said that states seeking to block transgender minors from accessing gender-affirming care may be violating federal law and has signaled that it is prepared to pursue legal action or support existing litigation against states seeking such restrictions.

Top Class Actions spoke to a few lawyers who believe that at some point, the Supreme Court will weigh in on these anti-trans laws if they aim to dismantle Bostock v. Clayton County. 

JustAnswer lawyer Francine Levitov told Top Class Actions that a staggering number of bills had been presented that look to curtail the rights of LGBTQ Americans and that transgender people are particularly targeted.  

“These bills would restrict school curriculum and extracurricular activity, allow for government-sanctioned religious discrimination, and compromise the ability of LGBTQ people to live out their gender identity by restricting or denying them things we take for granted, such as appropriate restrooms, health care, and identification documents,” Levitov told Top Class Actions.

While organizations such as the ACLU and others have taken up the cause and are aggressively fundraising to do battle against what they see as hate-mongering, according to Levitov, the majority of these bills are still in committee. Only a relative few have been pushed off the table. Meanwhile, more and more bills are still being proposed.   

The Equality Act, amending the 1964 Civil Rights Act and much awaited by the LGBTQ community, did pass the House and remains in the Senate.  

“Its passage in its current form would take significant wind out of the sails of the opposition, but when and if that will happen is up in the air. Until then, laws will be passed and will be challenged through litigation. Just based on the organized concerted and relentless efforts of large anti-LGBTQ factions in this country, in the conservative red states, I would expect some to hold up,”  Levitov told Top Class Actions.

The U.S. Supreme Court entered this arena when it ruled in favor of marriage equality back in 2015.  In Bostock v. Clayton County, they took on the American workplace, extending the 1964 Civil Right Act to protect LGBTQ  employees from gender discrimination and making it clear that gender discrimination for the LGBTQs was synonymous with sex discrimination.

“Because of Bostock, I don’t believe the Supreme Court will weigh in again soon. They will wait until they have to step in to resolve the conflicts and disparities created by rulings that try to erode Bostock,” Levitov told Top Class Actions.

Joan Bundy, principal attorney at Joan Bundy Law, told Top Class Actions that she thought the law was becoming more accepting of queer people but is actually regressing. 

“It seems that the arc of justice was moving ever so slowly toward acceptance or at least tolerance of LGBTQ+ persons in their various self-identified iterations, but then you look at Russia and how they’ve kept Brittney Griner in the gulag over there on trumped-up charges of illegal substance possession probably solely because she’s a lesbian and well-known sports/celebrity figure,” Bundy told Top Class Actions. 

She says she would not be surprised if these anti-transgender laws made it to the Supreme Court.

“A case going up on appeal to SCOTUS (the highest court in the land) is what finally brought same-sex marriage to the entire country,” Bundy told Top Class Actions. 

Alok Nadig, a lawyer with the Sanford Heisler Sharp firm, told Top Class Actions that these laws are unlikely to hold up in court based on legal challenges of anti-transgender legislation to date.

“The new wave of anti-transgender legislation sweeping the country is worse than unfortunate.  These laws aim to persecute an already marginalized community in several ways, including by ostracizing innocent children,” Nadig told Top Class Actions. 

Federal courts across the country have held that anti-transgender laws targeting youth violate the U.S. Constitution and Title IX of the Education Amendments of 1972.

For example, in August of 2021, in Brandt v. Rutledge, a federal judge in Arkansas temporarily blocked that state’s prohibition on “gender transition procedures” for minors on the grounds that the prohibition likely violated the U.S. Constitution’s First Amendment, as well as the Equal Protection and Due Process Clauses of the Fourteenth Amendment.  

In Grimm v. Gloucester Cty. Sch. Bd, the U.S. Court of Appeals for the Fourth Circuit recently held that a school board’s policy requiring students to use bathrooms based on their “biological sex” unlawfully discriminated against a transgender student in violation of Title IX. 

“Add on top of these cases the position taken by the U.S. Department of Justice that these types of laws violate the Equal Protection Clause and Title IX, and it becomes clear that anti-transgender laws targeting youth face a steep, uphill battle in federal court,” Nadig told Top Class Actions, “But there is some indication that countervailing developments could be on the horizon.”

On February 22, 2022, the full U.S. Court of Appeals for the Eleventh Circuit heard an oral argument in a case in which a three-judge panel previously determined that a school district’s policy barring a transgender boy from the boys’ restroom violated the Equal Protection Clause; the three-judge panel held that the policy was unlawful because the school district assigned students to sex-specific bathrooms “in an arbitrary manner.”  

That the full Eleventh Circuit decided to revisit and reconsider the pro-transgender panel opinion could indicate some appetite to reverse that decision, according to Nadig.

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