The U.S. Constitution, tainted from the beginning by the sin of slavery, ultimately has come to be a promise of human equality. But that has happened only gradually, and the process has an uncertain future.

The process faces another test on Wednesday, when the Supreme Court for the first time explores whether to assure a measure of constitutional equality for transgender people – a group now cruelly targeted for discrimination across the nation, and, indeed, even in the halls of Congress, where the first transgender member has just begun serving.

If equality is to be widened in America, it almost certainly would be only by a decision of the Supreme Court. The prospect for a new equality amendment to the Constitution seems remote amid deep partisan polarization in Congress and in the state legislatures.

The history of equality as a constitutional promise is long and meandering. The original document, ratified in 1788, demanded that the Atlantic slave trade continue for the next two decades. That was firmly embedded by a flat ban on any amendment, prior to 1808, that would seek to ban the import of slaves. Another part of the founding document guaranteed that each slave would be represented in Congress, but only as three-fifths of a person – a bias not remedied for another 80 years.

Slaves would not be recognized by the Constitution as free Americans until 1865, until human bondage was banned by the 13th Amendment. Three years after that, the freed slaves would first win legal equality, in the 14th Amendment.

It would be another century before people of different races would gain a constitutional right to marry each other, the result of the 1967 decision in Loving v. Virginia.

Women would have to wait for a measure of legal equality until 1971, in the Supreme Court decision in Reed v. Reed. Although somewhat strengthened by a 1976 decision by the Court, Craig v. Boren, the guarantee was less than the assured equality for racial minorities. A decades-long effort to guarantee full equality for women, under an Equal Rights Amendment, ultimately failed and recent attempts to revive the ERA also have failed.

In the 1990s, in small steps at first and then in bolder strides, the Court would begin to recognize equality guarantees for gay people, reaching its fullest achievement in the 2015 decision in Obergefell v. Hodges assuring an equal right to marry a person of the same sex.

What is discrimination based on sex?

What the belated “rights revolutions” for women and for gay people have in common is that equality, when it emerged, was based on their sex. And that is the basis of the argument now being made in the Supreme Court for equality for transgender people; in short, bias against a person based on gender identity, the argument goes, is bias against sex.

The federal government is leading that cause in the new case of United States v. Skrmetti, set for a hearing tomorrow. (The hearing will be broadcast “live;” see the note at the end of this article on how to listen.)

Those Americans who are paying attention to the new “rights revolution” for transgender people most often hear about it in controversies over what public restrooms a transgender man or woman or boy or girl will be allowed to use, or whether transgender women or girls will be allowed to compete in women’s sports. Those controversies have tended to trivialize public discussion and to deepen biased attitudes. (A recent example of that bias greeted newly-elected Representative Sarah McBride, a transgender woman Democrat from Delaware. The House Speaker promptly barred her from using women’s restrooms in the Capitol.)

Gender identity and medical treatment

The movement for legal equality for transgender people has far wider ambitions than the disputes over restrooms and sports; it is a movement that deals with a core question of individual human identity that can become a serious medical complication, especially in transgender children.

At a simple level, a transgender person is one who, early in life or later, develops a sense of personal identity opposite to the gender assigned to them at their birth. If that development becomes a medical problem, producing deep anxiety and frustration, potentially leading to severe depression and even suicide, that is a condition known as “gender dysphoria,” and modern medicine can treat it successfully. In fact, at least 15 major medical and mental health groups have reached a consensus on proper treatment for the condition. The first standards for treating dysphoria were developed in 1979.

The federal government cites data that about 1 percent of the nation’s population is transgender.

Transgender rights and the Court

The Court is familiar with the modern movement to achieve legal protection for transgender people. In fact, in a historic ruling four years ago, in the case of Bostock v. Clayton County, the Justices by a 6-to-3 vote extended a 1964 civil rights law against sex discrimination in the workplace to protect transgender and gay people in hiring, pay, promotion and other job-related benefits. The majority made the point simply: “An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.”

Now, the Court has chosen to go beyond what Congress had done in legislation, moving on to the fundamental question: does the Constitution itself, in its promise of human equality, provide any protection for transgender people? The Court will be guided by its own understanding of what the Constitution’s equality guarantee, in the 14th Amendment, means when applied to transgender people.

The Court did not enter this controversy without hesitation. Last November, three new cases arrived at the Court, seeking an answer to the constitutional question, in the specific context of denial of medical care for transgender children. One appeal was by the federal government, in a Tennessee case; another, also from Tennessee, involved transgender children and their parents; a third, from Kentucky, was filed by transgender children and their parents.

Thirteen times, the Court’s staff referred those cases to the Justices in private conferences. Each time, action was put off, until late in June this year. The Justices then voted to hear the government’s appeal, which was focused on the medical issue for transgender children, leaving out, for now, an added question in the other cases about parents’ rights to decide on medical care for their children. No one outside the Court knows what led to the prolonged consideration of what to do. However, lower courts are split on the issue of medical care as it applies to children, but not as to parents’ rights. That is one explanation for the choice.

The Tennessee law at issue tomorrow

Tennessee is one of 19 states that, over the past three years, have enacted laws that flatly prohibit medical treatment for “gender dysphoria” in children (under age 18). The focus of such laws on children appears to reflect lawmakers’ belief that this is the area in which state authority is most likely to be treated in the courts as the most powerful, as well as an apparent belief that promoters of transgender rights are aiming at the most vulnerable population.

The Tennessee law forbids medical treatment that is prescribed for “enabling a minor to identify with, or live as a purported identity inconsistent with the minor’s sex” as determined at birth, or are prescribed to treat “purported discomfort or distress from a discordance between the minor’s sex [at birth] and asserted identity.” Generally, the banned treatment involves so-called “puberty blockers” or hormonal therapy. The law is also aimed at gender-altering surgery, but the federal government told the Court that the ban on that point is not at issue in this case.

Doctors who violate the ban face a civil fine of $25,000 for each violation, and a potential loss of their license to practice medicine in the state. A doctor who violates the law also is barred, for 20 years after the violation, from providing such treatment for that minor.

Three transgender youths, 12 or 15 years old, along with their parents, sued to challenge the ban in federal court. The U.S. Justice Department joined in the case to make a similar challenge, on the theory that the constitutional dispute was of “general public importance.”

A federal trial judge in Nashville ruled the ban unconstitutional. First, the judge declared that the state law was based on the minors’ sex, treating them differently because they are transgender. Discrimination based on that status, the judge found, meant that the minors were entitled to constitutional protection (using the same standard that judges use for discrimination against women).

Next, the judge said, the youth and their parents were likely to win their case ultimately because the state had not shown that the ban was “substantially related to an important state interest.”

A federal appeals court overturned that result, finding that a law that discriminates based on sex is only unconstitutional if it “perpetuates invidious stereotypes or unfairly allocates benefits and burdens.” The Tennessee law, it said, does neither. Transgender people, it added, have not suffered from unfavorable treatment because of their identity and they are not born with a transgender condition. That court allowed the ban to stand, leading the federal government to take the case to the Supreme Court.

Significance of the case

Any time that the Supreme Court agrees to decide what the Constitution means in a new context, it is potentially of profound importance. Since 1803, the Court has claimed the final authority to judge the constitutionality of federal laws, and it has claimed the same authority over state laws since 1816. The 1803 decision came in Marbury v. Madison and the 1816 ruling came in Martin v. Hunter’s Lessee.

The challengers in this case appear to have an advantage at the outset, because of some of the language that Justice Neil M. Gorsuch used four years ago in the Bostock decision interpreting the application of the 1964 civil rights law to protect transgender people against workplace bias. A government document in the new Tennessee case cites Gorsuch as having written then that “transgender status is inextricably bound up with sex.”

However, two of the Justices who joined in the six-member majority led by Gorsuch are no longer on the Court: the late Justice Ruth Bader Ginsburg and now-retired Justice Stephen G. Breyer. They have been replaced by Justices Amy Coney Barrett and Ketanji Brown Jackson. Would one of them, a conservative and a liberal, make a fifth vote for a majority? Would the four others then in the majority be willing to extend constitutional rights based on gender identity?

Two of the dissenters four years ago, Justice Samuel A. Alito, Jr., and Clarence Thomas, were firmly opposed to the Bostock ruling, so it is most unlikely that they would favor extending constitutional protection to transgender people as an act of judicial choice.

And then there is the ninth Justice, Brett M. Kavanaugh. He, too, dissented four years ago, tellingly writing this: “To think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology but also a mistake of history and sociology….Congress has consistently treated sex discrimination and sexual orientation discrimination as legally distinct categories of discrimination.” Kavanaugh at that time clearly saw transgender and gay people as different from traditional women and men in terms of entitlement to legal equality.

It is no surprise, then, that the state of Tennessee, in defending its ban, relies upon Kavanaugh’s comments four years ago and mounts a sweeping condemnation of the reasoning by the Bostock majority. If that reasoning is extended to the Constitution’s text, the state brief asserts, that doctrine will be on a “collision course” with the religious rights of other people and the privacy rights of women and girls as transgender people use their equality in increasingly expansive and intrusive ways.

The Court’s options, in deciding core constitutional questions, are never easy choices. Establishing a never-before-existing right to equality surely is one of the hardest.
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The Court’s hearing in this case begins at 10 a.m. tomorrow and is scheduled for one hour. The audio (but not the video) will be broadcast “live” on the Court’s homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio will also be available, under the case title (United States v. Skrmetti), on C-Span TV at this link: cspan.org/supremecourt