After U.S. Supreme Court ruling, Idaho’s ban on gender-affirming care is in effect — now

The U.S. Supreme Court has ruled that Idaho’s ban on gender-affirming care for transgender minors can go into effect, overruling a lower court while the long-term constitutionality of the state’s law is still being litigated.

The decision means that medical providers in the state who provide gender-affirming care to minors — including puberty blockers, hormone treatments or transition-related surgeries — could now face felony charges and prison time of up to 10 years.

Idaho Attorney General Raúl Labrador asked the high court to allow the ban to go into effect in February, after a federal judge in Idaho temporarily paused the law in December. Judges on the 9th Circuit Court of Appeals subsequently denied Labrador’s request that they overrule the lower court judge, which led him to appeal to the conservative-dominated Supreme Court.

On Monday, the Supreme Court allowed the law to go into effect for everyone except the families involved while a lawsuit works its way through the legal system. Two of the court’s conservatives hinted they might be open to a final decision on the case favoring the state. The court’s three liberal judges dissented with the decision.

Idaho’s law is in place immediately as a result of the court’s action, the ACLU of Idaho told the Idaho Statesman. Wednesday’s order outlaws transgender health care for minors except for the two transgender teenagers and their families who sued last year, when Idaho’s Republican-controlled legislature passed what it called the Vulnerable Child Protection Act.

While many major medical organizations recommend hormone treatments and other health care for minors with gender dysphoria, conservatives in states around the country have pushed to ban the care.

”I’ve witnessed firsthand the devastating consequences of drugs and procedures used on children with gender dysphoria,” Labrador said in a statement.

The Republican attorney general said people with gender dysphoria deserve support and medical care “rooted in biological reality.”

“Denying the basic truth that boys and girls are biologically different hurts our kids,” he said.

In December, U.S. District Judge B. Lynn Winmill, a Bill Clinton appointee, communicated that the ban was likely unconstitutional, arguing that the 14th Amendment’s protections that in the past have applied to freed slaves, women and others extend to protect transgender children.

The ACLU of Idaho, which is representing the plaintiffs, called the Supreme Court ruling “awful” in a Wednesday statement.

“Today’s ruling allows the state to shut down the care that thousands of families rely on while sowing further confusion and disruption,” the ACLU said. The organization has argued that transgender care is medically necessary, and that banning it violates the constitutional rights of parents with transgender children as well as the children themselves.

The organization noted that the court’s decision “does not touch upon the constitutionality of this law.”

Paul Southwick, the ACLU of Idaho’s legal director, called the ruling “very disappointing” by phone.

”We would expect the Supreme Court to uphold equal protection rights, including for all trans kids in Idaho,” he said.

He said transgender teenagers in Idaho could still receive care out of the state.

“The fight is not over, the trans families are resilient and they will be taking care of each other during this time,” he said.

Supreme Court spars over ‘shadow’ docket, injunctions

The court’s conservatives took issue with Winmill’s universal pause on the law, arguing it went further than it needed to in preventing all aspects of Idaho’s ban on transgender minor care from going into effect.

Justice Neil Gorsuch, a member of the conservative majority, wrote that Winmill’s decision to put the entire law on hold was overly broad. While the transgender teenagers in the lawsuit have so far received puberty blockers and hormone treatments, Winmill’s decision also blocked the part of Idaho’s law that bans transition surgeries, he wrote.

The American Academy of Pediatrics generally does not recommend transition surgeries until adulthood.

“The district court’s order promised to run for the life of this lawsuit, thus preventing Idaho from executing any aspect of its law for years,” Gorsuch wrote in a concurring opinion that was joined by Justices Clarence Thomas and Samuel Alito.

Though Monday’s ruling did not address whether justices think Idaho’s law is constitutional, the court’s justices used the case as a venue to debate the high court’s use of emergency rulings, which have significantly increased in recent years, and the widespread practice of universal injunctions.

Such injunctions from lower courts can have wide and immediate impact on large portions of the country, which factions of Supreme Court justices discussed in their Wednesday decision. Gorsuch wrote that Winmill’s ban applied to the entire law even though the plaintiffs in the case have so far been treated with puberty blockers and hormone treatments, not “the surgical removal of children’s genitals,” which the law also bans, Gorsuch wrote.

He argued that injunctions from courts should be highly limited, to prevent the country’s judges from governing “an entire state or even the whole nation from their courtrooms.”

The justices also sparred over the court’s practice of accepting emergency applications and ruling on them rapidly. Most cases that are reviewed by the Supreme Court are scheduled for oral arguments, include lengthy court briefings from supporters and opponents, and result in detailed opinions from justices.

By contrast, what has been dubbed the court’s “shadow” docket includes cases brought to the court on emergency appeals, which generally are not slated for arguments but are instead quickly ruled upon with written orders, like the court’s decision on Wednesday. Those rulings sometimes do not include explanations.

Justice Brett Kavanaugh, joined by Justice Amy Coney Barrett, argued that the court should consider whether a case is likely to succeed in its entirety before they grant relief to a particular party. The argument from the two Trump-appointed justices, coupled with their agreement with the other conservatives to limit Winmill’s injunction, suggests that they may favor the merits of the law.

“This court is responsible for resolving questions of national importance, even when they arise on the emergency docket,” Kavanaugh wrote. “Fulfilling that responsibility will sometimes require us to assess likelihood of success on the merits in emergency cases involving new laws.”

Justice Ketanji Brown Jackson, a member of the court’s liberal minority, wrote in a dissent joined by Justice Sonia Sotomayor that Labrador had “not come close” to proving that the case deserved an emergency ruling from the court.

“In a troubling bid for this court’s early intervention, the state asks us to wade into the middle of ongoing lower court proceedings to weigh in on a single query concerning only one aspect of a preliminary determination by the District Court,” Jackson wrote. “We should resist being conscripted into service when our involvement amounts to micromanaging the lower courts’ exercise of their discretionary authority in the midst of active litigation.”

While the conservative justices argued that Winmill’s injunction was too broad, the district judge ruled in December that part of his reasoning was because of the practical specifics of the case: It concerns two transgender minors using pseudonyms, and Winmill said he thought it would be inoperable to grant an injunction tailored to the two minors without risking revealing their identities.

Jackson wrote that Labrador’s argument that Winmill’s decision was intended to be “universal” was wrong.

“The only problem: that’s not what the District Court did here,” she wrote. “The District Court settled on issuing a statewide preliminary injunction for a party-centered, fact-specific reason: because it found that doing so was necessary to protect the particular plaintiffs before the court, including two minors proceeding under pseudonyms, against action by the state it deemed likely unconstitutional.

“This court will almost certainly have a chance to consider the entirety of this case soon, whoever prevails below. In the meantime, it is far better for all concerned to let the lower courts proceed unfettered by our intervention.”

Justice Elena Kagan noted that she agreed with the minority that the court should not have sided with Labrador, but she did not explain her position. Chief Justice John G. Roberts Jr. was the only justice who did not take a stance.

The lawsuit over Idaho’s ban on transgender care minors is far from decided. The court’s decision on Wednesday concerned only Winmill’s preliminary ban on enforcement of the law, which has now been narrowed to exempt only the plaintiffs.

A hearing on the merits of Winmill’s injunction is scheduled to be argued before the 9th Circuit this summer. After that, the lawsuit itself will be litigated.

Monday’s decision was the second involving emergency appeals from Labrador. In January, the Supreme Court allowed the state’s total abortion ban to be enforced in emergency medical situations as part of another appeal. That case is scheduled for a Supreme Court hearing later this month.