U.S. Supreme Court agrees to hear case challenging laws like Kentucky's that ban gender-affirming health care for minors

Photo illustration by Shutterstock Creative

By Mark Sherman

Associated Press

The U.S. Supreme Court on Monday jumped into the fight over transgender rights, agreeing to hear an appeal from the Biden administration seeking to block bans on gender-affirming care like the one in Kentucky.

The justices’ action comes as Republican-led states have enacted a variety of restrictions on health care for transgender people, school sports participation, bathroom usage and drag shows. The administration and Democratic-led states have extended protections for transgender people, including a new federal regulation that seeks to protect transgender students.

The case involves a Tennessee law that restricts puberty blockers and hormone therapy for transgender minors. The federal appeals court in Cincinnati allowed the law and a similar one in Kentucky to take effect after lower courts had blocked them. The high court took only the Tennessee case, but a ruling in it will control the Kentucky case, lawyers for the Kentucky plaintriffs told Alex Acquisto of the Lexington Herald-Leader.

In their appeal, lawyers for the transgender teens in Tennessee told the justices, “Without this Court’s prompt intervention, transgender youth and their families will remain in limbo, uncertain of whether and where they can access needed medical care.” Arguments will take place in the fall.

Last month, South Carolina became the 25th state to adopt a law restricting or banning gender-affirming medical care for transgender minors, even though such treatments have been available in the United States for more than a decade and are endorsed by major medical associations.

Most of the state bans face lawsuits. The justices had previously allowed Idaho to generally enforce its restrictions, after they had been blocked by lower courts.

Kentucky and at least 23 other states ban transgender women and girls from competing in certain female sports competitions. At least 11 states have adopted laws barring transgender girls and women from girls’ and women’s bathrooms at public schools, and in some cases other government facilities.

The nation’s highest court has only rarely taken up transgender issues. In 2020, the justices ruled that a landmark civil-rights law protects gay, lesbian and transgender people from discrimination in employment.

Gender-affirming care includes a range of medical and mental health services to support a person’s gender identity, including when it’s different from the sex they were assigned at birth.

The services are offered to treat gender dysphoria, the unease a person may have because their assigned gender and gender identity don’t match. The condition has been linked to depression and suicidal thoughts.

Gender-affirming care has counseling and treatment with medications that block puberty, and hormone therapy to produce physical changes. Those for transgender men stop periods, increase facial and body hair and deepen voices, among other things. The hormones used by transgender women can slow growth of body and facial hair and increase breast growth.

Gender-affirming care can also include surgery, including operations to transform genitals and chests. These surgeries are rarely offered to minors.

Every major U.S. medical group, including the American Academy of Pediatrics and the American Medical Association, has opposed the bans and said that gender-affirming treatments can be medically necessary and are supported by evidence.

But around the world, medical experts and government health officials are not in lockstep. Some European countries in recent years have warned about overdiagnosis of gender dysphoria. England’s health service stopped prescribing puberty blockers to children with gender dysphoria outside of a research setting.

Contributing: Geoff Mulvihill and Carla K. Johnson, AP.

Bill to ban gender-affirming care for youth passes after advocates scramble and maneuver to quash bipartisan Senate changes

UPDATE, March 24: Beshear vetoed the bill.

By Melissa Patrick
Kentucky Health News

A revised bill with language to ban gender-affirming care for Kentucky's transgender youth moved quickly through both houses of the General Assembly Thursday and is on Gov. Andy Beshear's desk.

Even if the Democratic governor vetoes the bill, as is expected, the supermajority of Republicans in the legislature can override the veto when they return on March 29 and 30. 

Changes made to Senate Bill 150, sponsored by Sen. Max Wise, R-Campbellsville, were approved in a hastily called meeting of the House Education Committee, which approved it 16-5 with Republican Rep. Killian Timoney of Nicholasville voting "no" with the four Democrats on the committee.

Soon after, the amended bill passed the House 75-22, despite more than two hours of Democrats speaking against it.

SB 150 moved quickly to the Senate for concurrence with the House changes. It passed 30-7 to shouts and obscenities yelled from the gallery at legislators. Sen. Danny Carroll of Benton was the only Republican to vote against the bill and Sen. Robin Webb of Grayson, was the only Democrat for it.

The night before, Carroll had narrowly succeeded in watering down a House bill that would limit gender-affirming care, but after his floor amendment passed 19-17 the Senate laid HB 470 on the clerk's desk and Wise worked with the House to put most of the original bill into SB 150.

The amended version of SB 150 prohibits gender-affirming medical care for trans youth, including gender-affirming surgery or puberty-blocking hormones. It allows health-care providers to de-transition youth who are already taking such hormones, which would require them to taper them off of the drugs. It also provides exemptions for youth who have a diagnosed sexual-development disorder. 

Providers who violate the law would have their licenses revoked, and youth who claim injury as a result of gender-affirming care could fule suit to recover damages until they turn 30 years old or within three years from the time they discovery the injury. The normal deadline for a lawsuit is one year.

SB 150 also includes its original provisions to prohibit schools from requiring teachers to use a trans student's preferred pronouns and requires schools to notify parents about any content related to sexuality. It also added content from HB 177, which does not allow any sex education to children in grades five and below and bans all students from receiving instruction that explores "gender identity, gender expression or sexual orientation."

Carroll speaks on SB 150. (Legislative Research Comm. photo) 

Carroll's revised bill likewise prohibited surgical medical treatments for trans youth, but unlike allowed some nonsurgical medical-treatment options. His change was supported by all seven Democratic senators and 12 of the 30 Republicans. Seven of them voted the other way when Wise's bill came back from the House. It passed 30-7.

Republicans who voted with Carroll on his amendment but against him on the SB 150 were Jared Carpenter of Berea, Matthew Deneen of Elizabethtown, President Pro Tem David Givens of Greensburg, Jason Howell of Murray, Amanda Mays Bledsoe of Lexington, Chris McDamiel of Ryland Heights, Stephen Meredith of Leitchfield, Mike Nemes of Louisville, Brandon Smith of Hazard, Brandon Storm of London and Whitney Westrefield of Fruit Hill (Christian County). 

Westerfield said his yes vote was "reluctant." He said SB 150 was better than HB 470 largely because it allows doctors to talk freely with their patients about their medical concerns without fear of liability.  

Carroll, explaining his no vote, said, "We know that most kids that are struggling with gender dysphoria decide to stay the gender that they are. It's a phase that they go through, [and for] some it's not. What would it hurt to allow doctors to have access to these puberty blockers to give these kids time to work through the issues that they face? Why can't we trust our doctors, as we do for every other issue, to guide us through these things?"

Sen. Karen Berg, D-Louisville, whose trans son Henry died by suicide in December, said of SB 150, "This is absolutely willful hate for a small group of people that are the weakest and most vulnerable among us."

During the House floor debate, Rep. Chad Aull, D-Lexington, reminded the lawmakers that nearly half of LGBTQ individuals have seriously considered suicide and that percentage is much higher with transgender children. "If this legislation causes one child in Kentucky to consider or to take their own live, this is a wrong piece of legislation," he said.

Terry Brooks, executive director of Kentucky Youth Advocates, issued a statement calling the speedy passage of SB 150 "parliamentary shenanigans" and that the genesis of the measure "springs from a national agenda of fearmongering."   

"Passage of SB 150, even with the amendment, means that kids lose access to much needed health and mental health supports. It means that families lose vital rights. And it means that Frankfort Republicans – save the courageous Representatives Banta, Dietz, Moser, and Timoney and Senator Carroll, who refused to vote in support of the measure – lose their long-held core governing identity. That is a lose-lose-lose trifecta for us all," he said. 

Senate Majority Floor Leader Sen. Damon Thayer, R-Georgetown, who voted for the bill, said SB 150's anti-trans provisions were modeled after a law in South Dakota. 

Rep. Kim Moser, R-Taylor Mill, while explaining her "pass" vote said, "I'm concerned that it doesn't comment enough on the mental-health treatment. . . . I really would like to see that we are allowing for mental-health treatment, watchful waiting and making sure that we're supporting the families who are going through this issue. I'm passing today because we want to protect children on all sides of this issue." Moser is chair of the House Health Services Committee.

Tamarra Wieder, state director for Planned Parenthood Alliance Advocates, voiced her disappointment: "SB 150 is deliberately designed to create a culture war across this commonwealth. It has nothing to do with parental rights. It has nothing to do with caring for kids. What it does is go against the guidance of every major medical association in this state. It replaces our physicians with politicians and places our trans kids' lives on the line."