By: Angie Vertti Canto
Recent developments in lower federal courts could be setting the stage for future Supreme Court intervention in several cases involving trans-centric issues. The Supreme Court last considered a case involving trans rights in 2019, ruling in a 6-3 opinion that the Civil Rights Act of 1964 ban on workplace discrimination on the basis of “sex,” also covers sexual orientation and gender identity. A number of cases in the lower courts could provide the Supreme Court an opportunity to revisit the question and further bolster – or jeopardize – transgender rights in the United States.
The Second Circuit will hear arguments in June in Soule v. CIAC, which revolves around Connecticut’s decision to allow transgender girls to compete in girls’ school sports. In December, a three-judge panel of the court sided with the state’s high schools on narrow grounds. A similar case is unfolding in West Virginia, where the Attorney General is preparing to ask the Supreme Court to allow enforcement of a law banning transgender athletes from female sports teams. The AG stated that West Virginia will ask the justices to lift an injunction blocking the law that the Fourth Circuit has imposed while litigation continues over its legality.
In December, the Eleventh Circuit upheld a Florida school district’s prohibition on students using bathrooms that match their gender identity, creating a split among lower courts. The Eleventh Circuit backed a Florida school district’s policy banning transgender students from using bathrooms that match their gender identity. Although the no petition for certiorari has been filed, the circuit split that the 7-2 decision created with the Fourth Circuit and Seventh Circuits, which have struck down similar policies, may entice the Supreme Court to review the issue.
Meanwhile, people are still awaiting a decision from the Fourth Circuit regarding North Carolina’s exclusion of coverage for gender-affirming treatment in the state health insurance plan for government employees. The court appeared “sharply divided” during arguments in January. Currently, North Carolina and at least 15 other states, including Texas, Florida, Ohio and Georgia, explicitly exclude coverage for gender-affirming care in their employee health plans. The lawsuit is the first of its kind to reach a federal appeals court.
Despite all of this activity in the lower courts, it is still unclear as to whether there will be any traction in the nation’s highest court. However in recent years, the Supreme Court has declined certiorari to a number of high-profile appeals dealing with trans issues. For example, in 2021, the Court declined to take up a case about requiring transgender students to use unisex bathrooms. This allowed lower-court decisions in support of transgender students to stand. The U.S. District Court for the Eastern District of Virginia ruled that the school board violated Title IX and the Equal Protection Clause by prohibiting the plaintiff from using the same restrooms as other boys and forcing him to use separate restrooms, and the Fourth Circuit affirmed. The Court also declined to hear a case centering around a Catholic-affiliated hospital that denied a transgender man a hysterectomy.
It is unfortunate that fundamental human rights are still up for debate and seen as partisan issues in the United States. We can hope, however, that these cases will culminate in victories for the transgender community – which are much needed in wake of constant attacks questioning their humanity.
Angie (they/them) graduated from Rice University with a B.A. in Sociology and Policy Studies and a minor in Politics, Law, and Social Thought. They are a 2L at Sandra Day O’Connor College of Law and have an interest in criminal justice reform and public interest work. They hope to practice criminal law and do policy work in the future. When not in law school, Angie enjoys gardening, creative writing, and playing with their cocker spaniel named Jasper.
Law Journal for Social Justice 