"Supreme Court" by Mark Fischer is licensed under CC BY-SA 2.0.

An LGBTQ Supreme Court Update

More than halfway through its 2023-24 session, the U.S. Supreme Court has dispensed with three appeals in ways that help LGBTQ people. But it’s a long way to Tipperary, and as many as seven other petitions are awaiting action before the justices, some scheduled for conference this week.

LGBTQ legal activists will be listening intently March 26 as the U.S. Supreme Court hears oral arguments in two consolidated appeals to determine whether courts can pull the early-stage abortion drug RU-486 (aka mifepristone) off the market. Lambda Legal and other LGBTQ groups have long warned that any damage done to the right to have an abortion could have deep implications for the right to have intimate relations, including marriage, for LGBTQ people. How the high court rules in the mifepristone case (Food and Drug Administration v. Alliance for Hippocratic Medicine) could negatively impact the availability of HIV prevention medication, IVF services for lesbian couples, and medical treatment for transgender people.

In an apparent 6 to 2 vote last year, the justices temporarily blocked enforcement of a lower court decision in Texas that sought to pull RU-486 off the market.

All nine openly LGBTQ members of the U.S. House and three current U.S. senators signed onto a brief in support of the FDA’s appeal to keep RU-486 on the market. Lambda Legal, Transgender Legal, and the National Center for Lesbian Rights signed on with 234 health and civil rights groups to a brief in support of the FDA.

The legal questions at the Supreme Court will focus narrowly on whether doctors who oppose abortion have legal standing to challenge an FDA approval of RU-486 to terminate pregnancies even though the doctors do not prescribe the drug themselves. But the controversy is much broader. Over the years, various entities have tried to block the use of hormones for gender transition and medications for HIV prevention. Now, the court battles raging over RU-486 could determine whether any group can sue to pull any controversial medication off the market. (FDA v. Alliance for Hippocratic Medicine and Danco Pharmaceuticals v. Alliance)

Other LGBTQ-related cases before the Supreme Court this session –some concluded, some pending— include:

Campus hate speech: Good, for now. In what appears to have been a 6 to 2 vote, the Supreme Court on March 3 granted a petition of appeal challenging a policy against hate speech on the campus of Virginia Tech. Without argument, the court vacated the Fourth Circuit U.S. Court of Appeals decision with instructions to dismiss the lawsuit as moot (because the school had significantly pared back its protocol for addressing hate speech on campus). There are numerous attempts by universities around the country to create policies to tamp down hate speech. Justice Clarence Thomas, with his plus one Justice Samuel Alito, dissented. Of the 10 friend-of-the-court briefs submitted, all were in support of the Speech First effort. (Speech First v. Virginia Tech)

Bathroom ban: Good. In January, the U.S. Supreme Court denied a request from an Indiana school district which sought to require transgender students to use a separate bathroom from other students. The middle school student at the center of the controversy was identified as female at birth but has since identified as male. The student challenged the ban on the basis of equal protection and Title IX, saying the laws essentially create “a single national policy” that prohibits the bathroom ban. On January 16, without comment or dissent, the Supreme Court denied the school district’s appeal. (Martinsville v. A.C.)

Conversion therapy: Good. In a 6 to 3 vote, the U.S. Supreme Court on December 11 rejected the appeal of a therapist who challenged a Washington State law prohibiting “conversion therapy” for anyone under 18. In rejecting the appeal, the court left intact a Washington Supreme Court ruling that upheld the law, similar to laws in 19 other states. GLAD attorney Jennifer Levi said the action by the majority was an “important step in ensuring that young people do not have to suffer through these harmful practices.” (Tingley v. Washington)

Fighting bathroom ban. Pending. Three transgender adolescents in Tennessee have filed an appeal with the Supreme Court, seeking to reverse a Sixth Circuit ruling that upheld a ban on gender-affirming medication. “Gender dysphoria is a serious medical condition that, if left untreated, can result in severe anxiety and depression, self-harm, and even suicide,” says the petition of appeal, filed by the ACLU and the National Center for Lesbian Rights. (L.W. v. Tennessee)

Pronoun v. parents. Pending. A couple in Indiana who say their Christian beliefs hold that god “creates each person as immutably male or female,” and they refuse to refer to their “biological male” child with female pronouns as the child wishes. The Indiana Department of Child Services removed the child from the parents’ home, noting the child had developed an eating disorder as a result of the conflict with the parents, and state courts, including the Indiana Supreme Court, upheld that action. The child has since turned 18, potentially rendering the case moot. (M.C. v. Indiana)

Fighting for parental rights. Pending. In this appeal, the ACLU and the National Center for Lesbian Rights is challenging a state law passed last year by Kentucky to ban the use of medical treatments to alter the appearance of a minor from the gender the child was identified at birth to the gender the child identifies with now. The Sixth Circuit U.S. Court of Appeals upheld the state’s ban, but seven transgender young people and their parents are fighting that ruling. The NCLR/ACLU brief said the ban on certain transgender medical care is “so departed from our country’s traditional respect for parents’ rights and responsibilities” and singles out “a vulnerable and politically unpopular group for disfavored treatment.” (Jane Doe 1 v. Kentucky)

Fighting treatment. Pending. Idaho has asked the Supreme Court for an emergency stay of a lower court decision preventing the state from enforcing its ban on medical treatment for transgender youth. The question as to whether that ban violates the U.S. constitution is currently before the Ninth Circuit. (Idaho v. Poe)

Reverse discrimination. Pending. A straight woman in Ohio is appealing her case to seek a declaration of sexual orientation discrimination when the supervisor at her job twice passed her over for promotions and chose gay employees instead. The straight employee was eventually fired by two straight employees. The Sixth Circuit U.S. Court of Appeals ruled she had not made the necessary showing that the negative employment decisions were based on her sexual orientation. She is now appealing that decision to the U.S. Supreme Court. (Ames v. Ohio).