All eyes were on Justice Neil Gorsuch ahead of Wednesday’s Supreme Court oral arguments on the constitutionality of gender-affirming care bans for transgender youth.
The Trump-appointed conservative justice emerged as an unlikely trans rights ally when he wrote the court’s opinion in Bostock v. Clayton County. The case ruled that the Civil Rights Act of 1964 prohibits employers from discriminating against people “merely for being gay or transgender.”
But as the arguments in U.S. v. Skrmetti transpired, Gorsuch did not seem interested in the spotlight: He was the only member of the court who did not ask any questions and even declined Chief Justice John Roberts when he tried to give him the opportunity to ask something.
Outside the court, there was a general feeling of surprise that Gorsuch didn’t say anything even as the rest of the justices questioned both sides in predictable ways.
Ethan Rice, a senior attorney for Lambda Legal, a legal organization that supports LGBTQ+ rights and is also representing plaintiffs in the case, said he didn’t know how to read Gorsuch’s silence.
“I wonder how much he’s considering, you know, what he has said before on what is sex discrimination under statute and what it would be under the Constitution.” (Rice did not participate in the oral arguments in the case, nor was he inside the court.)
“I don’t think we can necessarily read anything into” Gorsuch’s silence, said Matt Sharp, senior counsel for the conservative Alliance Defending Freedom. “I would take it as just a justice thoughtfully hearing both sides’ arguments.” (ADF is not a party in this specific case, but an outcome here could impact similar cases in which the group is involved in Alabama, Idaho and other states with similar laws.)
When the Supreme Court heard the Bostock oral arguments in 2019, Gorsuch grappled with the case’s potential impact, asking the parties at the time whether a judge should consider “the massive social upheaval” that a ruling in this case could cause.
He ultimately wrote in the Bostock decision that they were only evaluating discrimination under specific clauses of Title VII of the Civil Rights Act, adding that “whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.”
In U.S. v. Skrmetti, the justices are weighing whether Tennessee’s gender-affirming care ban for trans minors violates the Equal Protection Clause of the 14th Amendment. A federal district court initially ruled that it does, but the Sixth Circuit Court of Appeals reversed the decision.
When the Supreme Court struck down affirmative action last year, Gorsuch wrote in his concurring opinion that there were “obvious differences” between the Equal Protection Clause and Title VII, arguing that the first applies to states and the latter to federal fund recipients.
“That such differently worded provisions should mean the same thing is implausible on its face,” Gorsuch wrote.
During the arguments, U.S. Solicitor General Elizabeth Prelogar and American Civil Liberties Union attorney Chase Strangio — who spoke on behalf of the three trans teens in the case — asked the justices to send the case back to the circuit court and demand it be reviewed as a sex discrimination case. That would mean the court would need to reconsider it under heightened scrutiny, a more demanding level of legal review also reserved for race-discrimination cases.
Public focus was also on Roberts, who was the only other conservative justice who sided with Gorsuch and their liberal colleagues in the Bostock decision. (Justices Brett Kavanaugh and Amy Coney Barrett were not on the bench yet.)
Roberts — along with Justices Kavanaugh and Samuel Alito — asked multiple times whether it was the court’s place to issue a decision declaring Tennessee’s ban unconstitutional because of the “dispute” around medical treatments for trans youth.
“Doesn’t that make a stronger case for us to leave those determinations to the legislative bodies rather than try to determine them for ourselves?” Roberts asked Prelogar.
“I certainly take the point that you might think that states should have a lot of leeway to regulate when it comes to medical uncertainty,” Prelogar responded. “But I think it would be a pretty remarkable thing for the court to say that just because we’re in the space of medical regulation, you are not going to apply the traditional standards that … ordinarily are applied when there’s a sex classification.”
Strangio said in a press conference before the oral arguments that a ruling upholding Tennessee’s ban would inherently pave the way for similar bans for trans adults. If the court decides that cases on this topic do not amount to sex discrimination and should not be reviewed under heightened scrutiny, it “would apply with equal force if tomorrow Tennessee banned this care for adults, too, and that is really concerning.”
The Supreme Court is expected to issue a decision on the case next summer.
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Oriana González is a reporter at NOTUS.