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Next step for transgender-related laws: Court

Experts expect to see individual, state and even federal government suits over recent transgender-related legislation.
Next step for transgender-related laws: Court
Posted at 8:30 PM, Apr 28, 2023

Transgender-related legislation has passed into law in 15 states in recent months, now that Montana's Republican Gov. Greg Gianforte signed a bill Friday that bans certain gender-affirming medical procedures for transgender minors. It would also penalize doctors and nurses who provide those services.

It's the same bill at the root of a political firestorm that put Montana in national headlines this week after Montana House Rep. Zooey Zephyr was banned from the House chamber in a party line vote. House Republicans accused her of breaking decorum and inciting her supporters after she told lawmakers they would have blood on their hands if they supported the bill.

While condemning Zephyr's punishment, the American Civil Liberties Union of Montana and Lambda Legal also promised to challenge the bill she spoke out against in court.

It would be among many legal challenges headed to court over transgender-related laws in the U.S. Constitutional law experts predict it's just the beginning, with hundreds of other bills still being considered in statehouses across the country.

"We're going to see a number of challenges," said Constitutional law professor Constance Van Kley. "We're going to see challenges brought under state constitutions, we're going to see challenges brought under the federal constitution. And we're going to see these challenges brought by a number of different actors."

That could mean individuals challenging that the laws violate their constitutional rights, local governments challenging states and even the federal government challenging newly passed state bills.

SEE MORE: Montana not the only state targeting transgender health care

The Department of Justice filed suit this week, taking on Tennessee's new ban on gender-affirming care for youth, saying it violates the 14th Amendment's Equal Protection Clause by denying medical care to young people based solely on who they are. Tennessee Gov. Bill Lee calls the DOJ's action "federal overreach at its worst."

"I think the most significant decision to look to is a case called Bostock V. Clayton County," Van Kley said.

In that case, the U.S. Supreme Court decided Title VII of the Civil Rights Act of 1964 protects employees against discrimination on the basis of sex, sexual orientation and gender identity. But Van Kley says it doesn't apply to state laws, leaving a legal gray area.

"As a matter of law, the Bostock decision is fairly narrow," Van Kley said. "It just has to do with this particular statute. And so it doesn't bind other courts in other areas. There's a question as to whether it will be persuasive to those courts in other areas. And then there remains this big question hanging out there of whether or not the federal Constitution protects against discrimination on the basis of gender identity. And that's an unresolved question."

Kansas is one of the latest states to ban gender-affirming care, as the Republican controlled legislature this week voted to override the Democratic governor's veto.

Organizations like the ACLU and Lambda Legal promise to keep fighting these laws in court.

"I think we'll probably see the [Supreme] Court resolve this question of whether or not the Equal Protection Clause protects against discrimination on the basis of gender identity in some way over the next several years, but with all of these different challenges, all of these different laws, I don't know what that is going to look like," Van Kley said.

The new law in Montana is scheduled to take effect Oct. 1.


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