Transgender rights percolating at the Supreme Court, justices pressed to weigh in

States are pressing the Supreme Court to give lower courts guidance on transgender rights.

Three disputes involving transgender people have been brought to the court, and the justices are slated to consider at least one of them — a ban on gender-transitioning medical treatment for minors — during its term that begins in October.

The justices are also considering whether to take up cases on state prohibitions of transgender athletes participating in girls’ and women’s sports.

In a 5-4 decision, they recently halted the Biden administration’s rewrite of Title IX, which involves trans-friendly school policies, as lower courts decide on the matter.

Supreme Court scholar Adam Feldman, creator of the “Empirical SCOTUS” blog, said the justices ducked the transgender issue in 2017 when the court removed G.G. v. Gloucester County School Board from its docket. The case involved a transgender boy using the boys’ restroom at school.

“I’ve said for some time now that transgender rights will be an important issue before the court,” Mr. Feldman said. “This area is more complex than pure ideological divisions.”

Justice Neil M. Gorsuch, a Trump appointee, and Chief Justice John G. Roberts Jr., a George W. Bush appointee, joined the court’s four Democratic-appointed members in 2020 in Bostock v. Clayton County, one of the court’s most recent landmark LGBTQ rights cases.

The majority in Bostock ruled that firing an employee for being a gay or transgender person violated Title VII of the Civil Rights Act.

In an opinion written by Justice Gorsuch, the court said discrimination based on sex included sex stereotyping.

Justice Samuel A. Alito Jr. warned in his dissent that the ruling would give credence to arguments for using the opposite sex’s bathroom or locker room facilities.

“Under the Court’s decision … transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the sex with which they identify, and while the Court does not define what it means by a transgender person, the term may apply to individuals who are ‘gender fluid,’” Justice Alito wrote.

Justice Gorsuch again joined the court’s Democratic-appointed members this month in dissent over a decision to refuse the Biden administration’s request to begin enforcing parts of its Title IX rewrite, which a lower court had blocked. Title IX prohibits discrimination in government-funded education programs.

In its rewrite, the Biden administration said refusing transgender students access to school restrooms or locker rooms of their preference would be discriminatory.

The justices could revisit the issue during their upcoming term, which runs from October through June.

For now, the justices have agreed to hear arguments in the case of a Tennessee ban on gender-transitioning medical treatment for minors. The Tennessee law bans administering puberty blockers, cross-sex hormones and sex-transition surgeries to minors.

The case has become a battleground. The Justice Department and the American Civil Liberties Union oppose state bans on youth treatments over concerns about safety and health.

Diagnosis of gender dysphoria among minors has surged, and courts have generally blocked state laws restricting treatment.

The ACLU said courts rejected bans on medical treatment for transgender youths in seven states: Alabama, Georgia, Florida, Arkansas, Idaho, Kentucky and Indiana.

The 6th U.S. Circuit Court of Appeals allowed Tennessee’s law to take effect.

The Tennessee case, U.S. v. Skrmetti, was brought by three transgender minors, their parents and a doctor who had 16 transgender youths as patients.

Oral arguments have not been scheduled, but a date is expected before May. A ruling is anticipated by the end of the term.

The justices will meet privately in the coming weeks to discuss taking up two state bans on transgender athletes from competing in women’s sports.

Idaho and West Virginia asked the justices in July to consider their disputes. Transgender athletes said the legislation runs afoul of the Constitution’s equal protection clause.

Twenty-six states have filed briefs on behalf of Idaho and West Virginia, saying they have similar legislation to protect women’s sports and need clarity from the high court.

The 4th U.S. Circuit Court of Appeals ruled against West Virginia’s law, which requires biological males to compete on male-only or coed teams. A transgender female student challenged the law, and the 4th Circuit ruled in favor of that student.

The 9th U.S. Circuit Court of Appeals issued an injunction halting Idaho from enforcing its Fairness in Women’s Sports Act, which bases sports participation on biological sex. A transgender woman wishing to run track at Boise State University said the law ran afoul of the 14th Amendment.

Four justices would need to vote to hear the disputes: B.P.J. v. West Virginia State Board of Education and Hecox v. Little.

Curt Levey, president of the Committee for Justice, said transgender rights have been brewing in lower courts for years but the issue seems to be increasingly contentious.

“Now, it seems like it really is percolating,” Mr. Levey said. “You have three different issues here.”

Zack Ford, senior manager of press and editorial relations at Alliance for Justice, said LGBTQ issues will be “a major spotlight” for this upcoming term.

“Unfortunately, we’ve seen this conservative Court too often interfere with medical experts’ ability to provide the best care for patients. Every major medical organization agrees that transgender young people deserve affirming care, and it’s only those who falsely believe they can prevent people from being transgender who disagree,” Mr. Ford said.

“While there was reason to be optimistic this Court might recognize the importance of protecting transgender people from discrimination given its 2020 Bostock ruling, its recent decision to block the administration’s Title IX guidance that was consistent with that ruling is disturbing. It remains to be seen just how much more harm this Court might do this term to the rights and protections we thought we could take for granted,” he said.