In recent months, Republican lawmakers in many states enacted laws targeting LGBTQ Americans, attempting to shut down their right to free expression and even deny them medical care, among other things. Until Saturday, however, civil rights lawyers challenging these laws fared surprisingly well in federal court, convincing even many Republican judges.
The United States Court of Appeals for the Sixth Circuit’s decision in L.W. v. Skrmetti, threatens to upend all of that. Before L.W. was handed down this past weekend, there was a consensus among federal courts that the Constitution prohibits states from banning gender-affirming medical care.
L.W. destroys that consensus. It reinstated a Tennessee law, previously blocked by a federal trial court, that prohibits gender-affirming care for transgender patients under the age of 18. And the Sixth Circuit’s opinion was written by Chief Judge Jeffrey Sutton, a widely respected judge, especially among the Supreme Court’s GOP-appointed majority.
Sutton, a George W. Bush appointee, is one of the federal judiciary’s leading “feeder” judges, meaning that his law clerks are frequently hired to clerk for the Supreme Court justices — a sign that the justices are likely to pay careful attention to Sutton’s views when deciding how to resolve a case like L.W.
Sutton’s decision to reinstate Tennessee’s anti-trans law is temporary, and he ends his opinion by saying his court will reconsider this question “with the goal of resolving it no later than September 30, 2023.” So it is possible that the Sixth Circuit will reconsider and join the other courts that have blocked bans on transgender health care.
In the fairly likely event that the Sixth Circuit hews to Sutton’s position, however, that will make it very likely that the Supreme Court will take up this issue, and soon. The justices pay special attention to legal questions that have divided lower federal appeals courts when deciding which cases to hear.
And if they do, and Sutton’s opinion is embraced by a majority of the justices, that would be a devastating blow to LGBTQ rights.
The state of LGBTQ rights in the courts before L.W.
There are fairly few federal laws that explicitly prohibit discrimination against LGBTQ people. There are, however, many laws that prohibit “sex” discrimination — with the word “sex” generally understood to refer to sex assigned at birth, not gender identity.
The Court’s core insight in Bostock v. Clayton County (2020) was that, even under this more conservative definition of “sex” discrimination, discrimination against LGBTQ people is still prohibited in the workplace. The Court held in Bostock that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex” — a holding with pretty clear implications for state laws that single out gay, bisexual, or transgender people for inferior treatment.
Think of it this way: Suppose that Steve’s boss fires him because he is dating a man, but the same employer does not fire Jacqueline, another employee who is also dating a man. That’s sex discrimination, because this employer permits women do so something (dating men) that men are not allowed to do.
Similarly, according to Bostock, if an employer penalizes an “employee who was identified as female at birth” for presenting as a man or otherwise engaging in stereotypically male behavior, but does not penalize “a person identified as male at birth” for the same actions, that is sex discrimination forbidden by federal law.
The specific question in Bostock was whether Title VII of the Civil Rights Act of 1964, the law banning employment discrimination, applies to discrimination on the basis of sexual orientation or gender identity. But many lower courts have applied Bostock’s reasoning to discrimination outside of the employment context.
Most notably, in Brandt v. Rutledge (2022), a bipartisan Eighth Circuit panel blocked Arkansas’s ban on gender-affirming care for transgender youth, reasoning that this ban violates the Constitution’s safeguards against sex discrimination. In a decision that closely tracked Bostock, the Eighth Circuit argued that Arkansas’s ban necessarily discriminates on the basis of “biological sex.”
Under Arkansas’s law, “medical procedures that are permitted for a minor of one sex are prohibited for a minor of another sex.” For example, “a minor born as a male may be prescribed testosterone or have breast tissue surgically removed,” but “a minor born as a female is not permitted to seek the same medical treatment.” Thus, because the law treats members of one “sex” differently than members of the other, it was blocked.
Before Saturday, at least four federal district courts agreed with Brandt that bans on gender-affirming care for minors should be blocked. And a few other appeals courts agreed with the Eighth Circuit that Bostock applies to most anti-trans legislation enacted by state lawmakers — thus ensuring that most laws attacking transgender Americans, and LGBTQ people more broadly, would be struck down.
But the Sixth Circuit’s decision in L.W. destroys this consensus, and potentially sets up LGBTQ Americans for a historic loss in the Supreme Court.
How Judge Sutton gets around Bostock
Sutton’s primary argument in L.W. is that a state does not discriminate on the basis of sex so long as it prohibits patients determined to be male and birth, and patients determined to be female at birth, from receiving gender-affirming care.
Yes, it is true that Tennessee's law prohibits children born with female genitals from receiving testosterone treatments, while permitting children born with male genitals to receive those very same treatments. But Sutton argues that this is fine because a “cisgender boy cannot transition through use of testosterone; only estrogen will do that.”
Sutton, in other words, attempts to paint Tennessee’s law as nondiscriminatory by reframing how it operates. If that law is understood as a ban on estrogen treatments for people assigned one sex at birth, and as a ban on testosterone treatments for people assigned the other, then Brandt was correct and Tennessee’s law must be struck down. But, if the law is reframed as a general ban on all gender transition care, then Sutton argues that it is sex-neutral because members of both sexes are forbidden from transitioning.
It should be noted that the Supreme Court has repeatedly rejected similar efforts to uphold discriminatory laws by reading them as more general bans that apply evenly to everyone. In Loving v. Virginia (1967), for example, the justices rejected the argument that a ban on interracial marriage is nondiscriminatory so long as it forbids everyone equally from marrying a person of a different race. And in Obergefell v. Hodges (2015), the Court also rejected the argument that bans on same-sex marriage are nondiscriminatory so long as everyone has an equal right to marry a person of the opposite gender.
Nevertheless, Sutton is able to point to at least one Supreme Court decision that, he claims, supports his case against transgender health care: the Court’s anti-abortion decision in Dobbs.
Specifically, Dobbs rejected the argument that abortion bans discriminate on the basis of sex (again, meaning sex assigned at birth) because they ban a medical procedure that only women can undergo. As Dobbs said, in a line Sutton quotes in his opinion, “the regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.’”
Of course, there is a fairly obvious problem with this argument by Sutton. Even if you accept the proposition that it is lawful to ban “a medical procedure that only one sex can undergo,” both sexes are capable of receiving puberty blockers, or of being treated with either estrogen or testosterone. The whole point of the Eighth Circuit’s decision in Brandt is that a state cannot tell members of one sex that they can receive these treatments but deny them to members of the other sex.
So how is this likely to play out in the Supreme Court?
The most important question when a case like L.W. reaches the Supreme Court is not whether the Constitution actually prohibits bans on gender-affirming care, or whether Bostock or Dobbs has more to say about transgender rights. The only question that really matters is whether there are five justices on this Supreme Court who want transgender health care bans to survive.
As this Court has shown time and time again in its recent terms, the six Republican appointees who dominate the Supreme Court are more than willing to overrule, or simply ignore, longstanding law if doing so is necessary to achieve one of their policy goals.
Which brings us back to why LGBTQ rights litigators should be at least a little worried that Sutton will persuade a majority of the justices to agree with him.
Not that long ago, Sutton was widely considered a likely Supreme Court nominee in a Republican administration. He is among the top feeder judges in the federal judiciary, a sign of the high regard he is held in by many of the justices themselves. And he was an accomplished Supreme Court litigator, arguing a dozen cases before the justices, before President George W. Bush appointed him to the bench in 2003.
The late conservative Justice Antonin Scalia once described Sutton as “one of the very best law clerks I ever had.”
And, while Sutton is often a thorn in the side of liberals — among other things, he wrote the decision upholding marriage discrimination that the Supreme Court reversed in Obergefell — he is not a hack. Sutton also wrote an opinion rejecting the constitutional arguments against Obamacare in 2011, an opinion that almost certainly killed his shot of getting promoted to the Supreme Court by a Republican president. He also recently sided with the Biden administration on an important immigrant issue that went to the Supreme Court, with eight of the nine justices ultimately agreeing with Sutton.
Sutton, in other words, is less of a MAGA die-hard than a sincere proponent of judicial restraint. He often argues that courts should simply stay out of major policy disputes, and he’s sided with Democrats enough times that his arguments for judicial minimalism cannot simply be dismissed as opportunism that he’ll abandon in favor of partisanship the next time a Republican litigant asks him to intervene.
Will Sutton’s reputation as a honest proponent of restraint be enough to pull justices like John Roberts or Brett Kavanaugh into his camp on transgender rights? Unclear. Until now, most judges — including Republican appointees — have held that Bostock applies broadly to invalidate many state laws targeting LGBTQ people. And Sutton’s reliance on Dobbs is not especially convincing, because it relies on the false assumption that treatments such as puberty blockers or testosterone supplements are not available for cisgender patients.
But if you’re a lawyer trying to convince this right-wing Supreme Court to protect transgender rights, you do not want someone like Jeff Sutton trying to convince the justices to do the opposite.