TNThrives

By Amy Howe

The court on Monday agreed to hear United States v. Skrmetti in the fall. (Katie Barlow)

While the Supreme Court grapples this term with issues ranging from presidential immunity to abortion and the power of federal administrative agencies, the justices’ docket for the 2024-25 term has so far involved mostly lower-profile issues. That changed on Monday, when the justices waded once again into the culture wars – specifically, the debate over rights for transgender people. In a list of orders released on Tuesday morning, the justices agreed to take up a case challenging a Tennessee law that bans gender-affirming care for transgender youths.

The justices will hear arguments in the case in the fall, with a decision likely by late June or early July 2025.

Major U.S. medical groups such as the American Academy of Pediatrics and the American Medical Association have opposed efforts by states to restrict gender-affirming care. In a 2021 letter to the National Governors Association, for example, the American Medical Association cited studies indicating that gender-affirming care can lead to (among other things) “dramatic reductions in suicide attempts, as well as decreased rates of depression and anxiety.”

Tennessee enacted the law at the center of the case in 2023. It bars gender-affirming care, such as hormone treatments and gender-transition surgeries, for transgender patients under 18. The law carved out two exceptions from that general rule: It allows the use of hormone treatments for other patients under 18, such as those who begin puberty too early, and it allowed health-care providers to continue to administer hormone therapy to patients who were already receiving it until March 31, 2024. The legislation allows lawsuits against health-care providers who violate its restrictions, as well as the possibility that such providers could lose their licenses to practice medicine.

The challengers in the Tennessee case are a 16-year-old transgender girl, who has received puberty blockers and estrogen therapy, a 13-year-old transgender boy who has received puberty blockers, and a 16-year-old transgender boy who has received puberty blockers and testosterone therapy. The youths, along with their parents and a doctor who treats transgender patients, filed a lawsuit against Tennessee officials in federal court, seeking to bar the state from enforcing the ban on puberty blockers, hormone therapy, and gender-transition surgeries. 

The Biden administration joined the case under a federal law that allows the government to intervene in private cases alleging violations of the right to equal protection under the law “if the Attorney General certifies that the case is of general public importance.”

U.S. District Judge Eli Richardson, who was appointed to the bench by former President Donald Trump, ruled that the challengers did not have a legal right to contest the ban on gender-transition surgeries because they had not indicated that they wanted to undergo such surgeries. But Richardson put the rest of the state’s ban on hold while litigation continued. He agreed with the challengers that “parents have a fundamental right to direct the medical care of their children, which naturally includes the right of parent to request certain medical treatments on behalf of their children.” And the ban violates the Constitution’s guarantee of equal treatment for people in similar situations, Richardson continued, because it prohibits medical procedures for transgender adolescents that it would allow for other adolescents.

Kentucky’s legislature enacted a similar ban in 2023, over a veto by Gov. Andy Beshear, a Democrat. Seven transgender teens and their parents went to court to challenge the Kentucky law, seeking an order that would prohibit the state from enforcing its bans on puberty blockers and hormone therapy. U.S. District Judge David Hale granted their request, although he put it on hold while the state appealed.

A divided panel of the U.S. Court of Appeals for the 6th Circuit reversed the trial judges’ rulings and reinstated both the Tennessee and Kentucky bans last fall. Chief Judge Jeffrey Sutton, a former clerk to Justice Antonin Scalia who in 2015 wrote an opinion upholding state bans on same-sex marriage, contended that because “it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for” gender-affirming care, the cases before the court were “precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive” constitutional rights that “limit accountable elected officials from sorting out these medical, social, and policy challenges.”

The challengers in both cases went to the Supreme Court, asking the justices to take up the issue, as did the Biden administration, which had filed its own challenge to the Tennessee ban.

The Tennessee challengers told the justices that the “legal uncertainty” surrounding the availability of gender-affirming care for transgender youths “is creating chaos across the country for adolescents, families and doctors.” Both the federal government and the challengers in the Kentucky case echoed that sentiment, with the Kentucky plaintiffs noting that in recent years “twenty-one states have banned adolescents from obtaining medical care for gender dysphoria, throwing the lives of young people in these states into disarray.”

The challengers raised several different issues in their petitions for review. First, they noted, the courts of appeals are divided on the question at the center of both the Tennessee and Kentucky cases: whether (and, if so, how) states can ban gender-affirming care like puberty blockers and hormone therapy for transgender adolescents. (The ban on gender-affirming surgeries is not before the Supreme Court in this case.)

But the cases also present other questions that the court should resolve, the challengers continued, such as how courts should review state laws that single out transgender people for disfavored treatment, whether courts should subject such laws to a more stringent review, and whether the laws violate the fundamental rights of parents to make decisions about medical care for their children.

Emphasizing that the court of appeals was correct in allowing them to enforce the law, both states urged the justices to reject the challengers’ request “to remove an important and constantly evolving issue from the normal democratic process.” But in any event, they continued, there is no real division among the courts of appeals on the question posed by the two cases. And if there were, they added, the court should wait and consider these questions in a case with a more developed factual record – which, they suggested, could come along soon “given the volume of ongoing litigation about laws like” the Tennessee and Kentucky bans.

After considering the petitions for review at six consecutive conferences, the justices granted the Biden administration’s petition for review on Monday.

This article was originally published at Howe on the Court. 

Posted in Merits Cases

Cases: United States v. Skrmetti

Recommended Citation: Amy Howe, Supreme Court takes up challenge to ban on gender-affirming care, SCOTUSblog (Jun. 24, 2024, 10:03 AM), https://www.scotusblog.com/2024/06/supreme-court-takes-up-challenge-to-ban-on-gender-affirming-care/

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Tennessee is among the least friendly states towards members of the LGBTQ+ community, according to a new assessment.

For the last six years, Out Leadership’s State LGBTQ+ Business Climate Index has measured the impact of state government policies and prevalent attitudes on the LGBTQ+ community, weighing factors such as support for young people and families, health access and safety, political and religious attitudes, work environment and employment and nondiscrimination protections.

The average score for the United States has fallen for the third year in a row. In 2024’s report, the U.S. scored a 62.77 out of 100 which is a 1.12% drop from 2023’s 63.48. According to the study, there were over 500 anti-LGBTQ+ bills introduced in 40 states in 2024.

Data for the index comes from The Movement Advancement Project, The United States Transgender Survey, and The Williams Institute. The USTS data are from the largest national survey of transgender individuals in the U.S.

Here is what the index showed for Tennessee and the rest of the nation.

Is Tennessee a friendly state for LGBTQ+ members?

According to Out Leadership’s index, no. Tennessee scored a lowly 34 out of a possible score of 100 on the index, making the state a high risk for the LGBTQ community.

While 6.3% of Tennessee residents identify as LGBTQ+, Tennessee is one of the frontrunners in anti-LGBTQ+ attitudes in the nation.

Each state is given scores out of 20 in individual categories. For these categories, the highest Tennessee scored was a 9.4.

• Legal and nondiscrimination protection: 2
• Youth and family support: 9.4
• Political and religious attitudes: 7.6
• Health access and safety: 6
• Work environment and employment: 9

Since 2015, Tennessee has enacted 21 anti-LGBTQ+ laws which “discriminate against LGBTQ+ people in education, gender-affirming healthcare, legal status, and adoption and foster care.”

When looking at the impact of LGBTQ+ discrimination on business talent, Tennessee is at high risk for branding, clientele, talent and future. It is at notable risk for marketing. What this means it that each of these categories are more at risk for businesses in the state of Tennessee as they are missing out on potential employees, customers and expansion if LGBTQ+ members do not feel safe with them.

The study found that Millennial and Gen Z consumers prefer to do business with companies with LGBTQ+ friendly advertising and policies. Fifty-four percent say they’re more likely to choose an LGBTQ+ inclusive brand over a competitor.

What are the least friendly states toward LGBTQ+ members?

Arkansas was the lowest ranked state for the second year in a row with 27 points. This is the lowest score recorded since Out Leadership started their index. Last year, Arkansas scored a 32.

1. Arkansas scored a 27/100
2. Louisiana scored a 31.50/100
3. South Carolina scored a 31.90/100
4. Oklahoma scored a 33.37/100
5. Tennessee scored a 34/100

What are the most friendly states toward LGBTQ+ members?

New York is the friendliest state for LGBTQ+ members with a score of 93.67. This is New York’s fourth year being in the No. 1 spot.

1. New York scored a 93.67/100
2. Connecticut scored a 93.27/100
3. Massachusetts scored a 92/100
4. New Jersey scored a 90/100
5. Vermont scored an 89.50/100

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Nashville, Tenn. — Republican lawmakers in Tennessee advanced a proposal Tuesday to allow some teachers to carry handguns on public school grounds, a move that would mark one of the state’s biggest expansions of gun access since a deadly shooting at a private elementary school last year.

The proposal cleared the GOP-controlled chamber amid emotional chants and screams from protesters against it. Many were eventually ordered to leave the Senate galleries.

After receiving a 26-5 party-line Senate vote, the proposal is now ready for a House floor vote. The bill would bar disclosing which employees are carrying guns beyond school administrators and police, including to parents of students and even other teachers. A principal, school district and law enforcement agency would have to agree to let staff carry guns.

“Regarding the portion of confidentially, that is because of the element of surprise,” CBS Nashville affiliate WTVF-TV quotes Republican state Sen. Paul Bailey as saying.  “If you are a possible intruder, you don’t know if the person you encounter is an authorized faculty or staff member. That maybe will change their mind about coming.”  

“I’m upset. My child is at risk under this bill,” said Democratic state Sen. London Lamar, holding her 8-month-old son. “This bill is dangerous and teachers don’t want it. Nobody wants it.”

“I saw many laughing like it’s funny,” Lamar added, according to WTVF. “I am offended by many of my colleagues on the floor. This is one of the most dangerous pieces of legislation to come out of this assembly. They took an oath to give our kids writing and arithmetic, and we are now making them as law enforcement. It will enable the next school shooter. It’s going to be a teacher with this next legislation. Use common sense.”

Rowdy galleries  

Senate Speaker Randy McNally, a Republican, cleared the galleries after many protesters refused to quiet down even as he gaveled them down repeatedly for disruptions. In the nearly 15 minutes it took to remove the audience and resume the debate, they continued chanting, “Vote them out;” “No more silence, end gun violence;” and “Kill the bill, not the kids.”

The heated debate comes about a year after a shooter indiscriminately opened fire last March at The Covenant School – a Christian institution in Nashville – and killed three children and three adults before being fatally shot by police. 

Despite sweeping, coordinated efforts after the shooting to persuade Tennessee’s Republican-dominant statehouse to enact significant gun control measures, lawmakers have largely balked at such calls. They’ve dismissed proposals on the topic by Democrats – and even one by the Republican governor – during regular annual sessions and a special session.

Only a handful of GOP senators spoke in favor of the bill, taking time to stress that teachers would not be required to be armed or use their weapons in active shooter situations. They argued that it could be particularly helpful in rural counties with limited law enforcement resources.

“It’s time that we look at the facts of the bill, that we are not trying to shoot a student, but protect a student from an active shooter whose sole purpose is to get into that school and kill people,” Republican Sen. Ken Yager said.

A worker who wants to carry a handgun would need to have a handgun carry permit, have written authorization from both the school’s principal and local law enforcement, clear a background check and undergo 40 hours of handgun training.

“We’re sending teachers to learn how to handle a combat situation that veteran law enforcement have trouble comprehending,” said Democratic Sen. Jeff Yarbro. “We’re letting people do that with a week’s training,” he said.

Several parents of Covenant School students watched on in opposition to the bill.

“It is so extremely disappointing, just as a mother,” said Mary Joyce, one of the Covenant mothers. “We’re very disappointed at how things went today, and we can absolutely do way better.”

Numerous measures in Tennessee would ease access to guns 

Tennessee Republicans have pushed to loosen gun laws over the years, including signing off on permitless carry for handguns in 2021.

Most recently, House Republicans advanced a proposal out of committee that would expand the state’s permitless carry law to include long guns.

The original law allowed residents 21 and older to carry handguns in public without a permit. Yet two years later, Attorney General Jonathan Skrmetti struck a deal amid an ongoing lawsuit that then allowed 18- to 20-year-olds to carry handguns publicly. The bill approved Monday has been slowly making its way through the statehouse, but still must clear the House and Senate.

Meanwhile, last year, Tennessee Republicans passed a law bolstering protections against lawsuits involving gun and ammunition dealers, manufacturers and sellers. This year, they are awaiting the governor’s decision on a bill that would allow private schools with pre-kindergarten classes to have guns on campus. Private schools without pre-K already can decide whether to let people bring guns on their grounds.

Separately, Senate Republicans on Tuesday advanced an amendment to the Tennessee Constitution’s “right to keep, bear, and wear arms” that would broaden the right beyond defense and delete a section giving lawmakers the ability “to regulate the wearing of arms with a view to prevent crime.” If approved, that wouldn’t be on the ballot until 2026.

A Tennessee court will weigh whether to temporarily block the state’s abortion ban when it comes to dangerous pregnancies, after hearing arguments Thursday in a legal challenge to the law’s narrow medical exception.

The three-judge panel could also decide to dismiss the case entirely when it eventually renders its written decision.

The case against the state was brought by the Center for Reproductive Rights, which argues that the “unconstitutionally vague” language in the medical exception in Tennessee’s abortion ban endangers the lives of pregnant women.

In 2022, Nicole Blackmon was about 15 weeks pregnant when her fetus was diagnosed with a deadly anomaly, according to the lawsuit. Blackmon, of Nashville, was denied an abortion and later gave birth to a stillborn baby after more than 32 hours of labor.

“Because of the state’s cruel laws, I was forced to carry a baby for months that was never going to live,” she said in a statement. “I was condemned to endure both physical and emotional torture, knowing that I was going to deliver a stillborn.”

The nonprofit filed a lawsuit in September on behalf of Blackmon, who is the lead plaintiff, and six other women who were denied abortions despite facing major health complications, as well as two obstetrician-gynecologists who say the threat of extreme penalties has impeded their ability to provide care.

The penalties include up to 15 years in prison, a $10,000 fine and the loss of one’s medical license.

“It has a chilling effect,” Center for Reproductive Rights attorney Linda Goldstein said during Thursday’s hearing in Nashville.

Tennessee’s abortion ban went into effect on Aug. 25, 2022, about two months after the U.S. Supreme Court overturned Roe v. Wade, a landmark ruling that had guaranteed a constitutional right to abortion.

The state later created an exception for situations in which the abortion is “necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.”

But abortion rights advocates argue that the ambiguous and nonmedical terminology leaves doctors uncertain about when they can render care without being prosecuted.

The medical exception doesn’t work if doctors “can’t understand it,” Goldstein said.

“Doctors are denying or delaying abortion care in cases where even defendants concede that it would be legally permissible,” she said. “They are doing this because the terms of the medical necessity exception are vague.”

Goldstein said the plaintiffs were not seeking to strike down the abortion ban. Instead, Goldstein said, attorneys for the plaintiffs wanted the court to “interpret” the statute and specifically confirm that the medical necessity exception permits abortions when there is a fatal fetal diagnosis that puts the mother’s life or health at risk.

The nonprofit said clarifying the medical necessity exception would allow doctors to “preserve a patient’s life or health without waiting for patients to be acutely ill.”

During Thursday’s hearing, one of the three judges said the panel cannot “redline” or rewrite the statute. Another judge pushed Goldstein to better illustrate the “immediate” harm that needs to exist to justify a temporary injunction.

In November, the state of Tennessee filed a motion to dismiss the case. In part, the state said, governmental entities are protected from being sued under a legal doctrine known as sovereign immunity.

In addition to the state of Tennessee, the plaintiffs are suing the state’s attorney general, the state’s Board of Medical Examiners and the board’s president.

The Center for Reproductive Rights has also filed similar lawsuits and complaints in Texas, Idaho and Oklahoma.

More than a dozen states have restrictive abortion bans or no longer have facilities where women can receive abortions.

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 “Trans people are divine,” reads a sign at a Nashville event hosted by clergy on Feb. 6, 2023. (Photo: John Partipilo)

A bill that could lead to LGBTQ youth being placed in families with moral or religious objections to their sexual orientation or gender identity was approved by the Tennessee Senate on Tuesday.

The Tennessee Foster and Adoptive Parent Protection Act would prohibit the Department of Children’s Services from excluding parents who have moral or religious objections to LGBTQ identity and want to foster or adopt a child in state custody.

The bill would “not preclude” DCS from taking a child’s feelings into account before placing them in a family’s home — but does not require the agency to do so.

Sponsors of the bill, including Rep. Mary Littleton, have said the measure would expand the pool of willing foster parents. Despite plain language in the bill that says that a parent with anti-LGBTQ beliefs would not be “contrary to the best interest” of a child — including one who is gay or transgender —Littleton said her intent was to ensure kids in foster care are matched with the most suitable parents.

Sen. Raumesh Akbari, a Memphis Democrat, called the measure “cruel.”

“I just think that you shouldn’t be able to deny somebody’s basic existence because you say it affronts your religious or moral beliefs,” she said. “That is between you and your god. It should not be something that potentially makes a child feel unwelcome and challenges who they are to their very core.”

Cathryn Oakley, senior director of legal policy for the Human Rights Campaign, called the proposal “wrong and a violation of federal law.”

“The best interest of the child is supposed to be the central organizing principle of all decisions made in the child welfare system,” Oakley said.

The bill, Oakley said, “upends this, instead centering the interests of potential foster and adoptive parents, including those who attest they would subject a child in their care to the abusive and discredited practice of conversion therapy.”

“I just think that you shouldn’t be able to deny somebody’s basic existence because you say it affronts your religious or moral beliefs.”

– Sen. Raumesh Akbari, D-Nashville

The U.S. The Department of Health and Human Services last year proposed new rules for placement of LGBTQI+ youth in foster care, including that homes “establish an environment free of hostility, mistreatment, or abuse based on the child’s LGBTQI+ status.”

In November, Tennessee Attorney General Jonathan Skrmetti led a 17-state coalition opposing the rules, saying in a letter to the federal government that they would shrink the pool of available foster families and “further divert resources away from protecting foster children from physical abuse and toward enforcing compliance with controversial gender ideology.”

The bill goes next to the House floor for a approval before landing on Gov. Bill Lee’s desk.

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The law, less than half a page long, states that a person “shall not be required to solemnize a marriage,” but does not specify grounds for refusal.

Tennessee has emerged as one of the most restrictive states in regards to LGBTQ rights in recent years. Sergio Flores / AFP via Getty Images

By Matt Lavietes

Tennessee Gov. Bill Lee signed a new law Wednesday that will allow public officials in the state to refuse to perform marriages if doing so goes against their beliefs.

The measure, HB 878, is less than half a page-long and simply states that public officials “shall not be required to solemnize a marriage.” Those who can newly refuse include judges, county clerks and government officials. The law went into effect immediately on Wednesday.

Critics have said that the measure was crafted with the intention of allowing government officials to refuse to perform same-sex marriages. Religious figures in the state have previously been permitted to refuse to marry same-sex couples.

An original draft of the legislation, which was introduced last year, stated that a person would be allowed to refuse to perform a marriage “based on the person’s conscience or religious beliefs.” The version of the law Lee signed does not specify under what criteria a person can decide whether to agree or refuse to marry someone.

Representatives for Lee and state Sen. Mark Pody, the lead Republican co-sponsor of the legislation in Tennessee’s Senate, did not immediately return requests for comment. Republican state Rep. Monty Fritts, the lead co-sponsor of the legislation in the state’s House, could not be reached for comment. 

Same-sex marriage has been legal across the United States since the Supreme Court’s landmark Obergefell v. Hodges ruling in 2015 guaranteed the right to gay and lesbian couples. In 2022, President Joe Biden signed into law a measure that also codified same-sex marriage into federal law, months after the fall of Roe v. Wade instilled fear in the LGBTQ community that their right to marry could also be in jeopardy. 

Mary Bonauto, who argued on behalf of same-sex couples in Obergefell and now serves as the civil rights project director at GLBTQ Legal Advocates & Defenders, a nonprofit legal rights group, said the Tennessee law does not jeopardize the legality of same-sex marriage in the state.

“You can still absolutely obtain licenses,” she said. “It’s only about performing a marriage and there are a whole variety of individuals who can perform marriages and also potentially some private entities.”

Bonauto added that the law lacks clarity over its application and opens up the possibility for couples to be refused marriage for a whole host of reasons, including their race, religion or national origin. 

“The law is so broad that it could really introduce a fair amount of randomness that I think many people may not find tolerable,” she said. “Or I think, on the other hand, maybe they will just ignore it because it was to satisfy a particular effect on the ground. Time will tell.”

Nathan Higdon, the chief financial officer for Tennessee LGBTQ advocacy group Knox Pride, condemned the measure and chalked it up as a political stunt on behalf of lawmakers trying to hold onto power. 

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NASHVILLE, Tenn. (WKRN) — The first day lawmakers return for the 2024 legislative session, Tennessee Senators will begin debate on two bills the Tennessee Equality Project has included in their “slate of hate” list.

“It’s coming at as hard and fast this year, just like it did last year,” said Tennessee Equality Project Executive Director Chris Sanders.

The LGBTQ+ advocacy group is tracking four newly introduced pieces of legislation, one they believe could be changed and eight from last year that could come back up this session.

“Here we are again, facing more of the same,” Sanders said.

Last year, the Republican-controlled legislature passed bills limiting transgender youth’s access to gender-affirming healthcare, putting restrictions on drag performances and preventing educators from using a student’s pronouns that don’t align with their biological sex.

“The effect on communities around the state is really horrible,” Sanders said. “A number of families have had to leave the state or they have to go out of state to get gender-affirming care, or they are considering moving.”

This session, they are monitoring movement on bills that would prevent schools from hanging pride flags, allow a person to deny officiating a wedding if they object to it for religious reasons, and allow a parent to sue schools to enforce the Age-Appropriate Materials Act of 2022.

“There’s no preparing for these constant attacks,” Sanders said.

State Rep. Gino Bulso (R-Brentwood) authored two of the bills on the Tennessee Equality Project’s list and said his legislation is not meant to target a specific group.

“We look at everyone as an individual and we value everyone’s life. We believe everybody is entitled to equal dignity; everybody’s entitled to love and to be loved, and we tend not to put people in the categories that progressives do, where they kind of break everybody down into being a member of this group, or that community, or this community or, or that group,” Bulso said.

In the same interview, Bulso also said he does not agree with the U.S. Supreme Court’s 2015 ruling legalizing same-sex marriage nationwide and that “transgender ideology” is an issue in schools.

“Our entire civilization in our country is built on the family and marriage being at its core, and family and marriage are actually based upon truths about the body and about sexuality, and this transgender ideology attempts to advance a position that there really is no truth, no objective truth when it comes to the body into one’s sexuality, and that somebody can actually decide for themselves what sex to be,” he said.

Sanders said he hopes for people who oppose the legislation on their list feel compelled to tell their legislators what bills they want to be prioritized this year.

“Ask your legislators why they’re spending time on these bills. Talk to them about what your priorities are, whatever they are, whether it’s roads, schools, whatever it is,” he said.