The LGBTQ+ Supreme Court cases to watch this term
04/01/25
trudestress
All this term's cases
The Supreme Court justices
Fred Schilling, Collection of the Supreme Court of the United States
In its 2024-2025 term, the U.S. Supreme Court has heard or will hear four cases centered on LGBTQ+ rights. They include a challenge to Tennessee's law banning gender-affirming care for transgender minors; a case in which a woman claims she suffered discrimination because she is straight; one on whether employers' insurance plans have to cover drugs used for pre-exposure prophylaxis, or PrEP, to prevent infection with HIV; and one on whether parents have to be notified if LGBTQ-themed books are read in their children's classes and if they should be able to opt their children out of those lessons. Decisions are expected near the end of the court's term in June.
The future of gender-affirming care
Demonstrators at the Supreme Court building during the gender-affirming care case
Nikki Aye for The Advocate
In December, the court heard a case challenging Tennessee's ban on gender-affirming care for trans youth. Families with trans children, plus a doctor, had sued over the law, which was signed by Republican Gov. Bill Lee in 2023. The case is known as L.W. v. Skrmetti, L.W. being the trans daughter of Samantha and Brian Williams of Nashville, and Skrmetti being Jonathan Skrmetti, the attorney general of Tennessee. It was briefly known as U.S. v. Skrmetti when President Joe Biden's administration joined the case on behalf of the plaintiffs, but under Donald Trump, the federal government has changed sides and now supports the Tennessee law. The plaintiffs argue that the law violates the U.S. Constitution’s guarantees of equal protection and due process as well as the Affordable Care Act’s Section 1557, which bans sex discrimination in health care. It seeks to overturn the law's bans on puberty blockers and hormone therapy for trans youth and does not address a ban on gender-affirming surgery, which is almost never performed on minors.
U.S. District Judge Eli Richardson granted a preliminary injunction in June 2023, blocking the law from being enforced. However, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit lifted that in September 2023. So the plaintiffs asked the court to review the Sixth Circuit’s decision. Attorney Chase Strangio of the American Civil Liberties Union, representing the plaintiffs, became the first out trans person to argue a case before the Supreme Court. The plaintiffs are also represented by Lambda Legal, the ACLU's Tennessee affiliate, and the law firm of Akin Gump Strauss Hauer & Feld LLP. As Biden was still in office when the case was heard, U.S. Solicitor General Elizabeth Prelogar also argued on behalf of the plaintiffs.
The court's three liberal justices appeared sympathetic to trans youth and inclined to overturn the law, the conservative majority skeptical of overturning it. However, LGBTQ+ rights groups remain cautiously optimistic. “The arguments at the Supreme Court made it unequivocally clear: banning medically necessary care for transgender youth is unlawful discrimination that puts their health and well-being at risk,” said a statement from Naomi Goldberg, executive director of the Movement Advancement Project.
There are several possible outcomes, Lambda Legal attorney Sasha Buchert said in an interview on the group's website. "A ruling in favor of the families would return the case to the lower courts to apply the appropriate standard of review for improper sex-based classifications," Buchert said. "If the Court upholds the ban, the Tennessee law would remain in effect, depriving trans minors from receiving hormone therapy, greenlighting similar bans already enacted in other states, and potentially emboldening even more states to pass similarly restrictive laws and perhaps even more draconian bans. However the case is decided, it is likely to have a significant impact on how much deference courts give to bans on medical care to treat gender dysphoria."
Anti-straight discrimination
LGBTQ-friendly workplace
shutterstock creative
The court heard arguments in February in Ames v. Ohio Department of Youth Services, a case that could redefine how discrimination claims are handled under Title VII of the Civil Rights Act. At issue is whether so-called majority-group plaintiffs — such as heterosexual employees alleging discrimination based on sexual orientation or white employees claiming they were discriminated against because of their race — must meet a higher evidentiary standard than other plaintiffs in discrimination cases.
The case, brought by Marlean Ames, a former Ohio Department of Youth Services (the state’s juvenile justice department) employee, challenges a rule the U.S. Court of Appeals for the Sixth Circuit applies, requiring majority-group plaintiffs to demonstrate additional “background circumstances” to establish a discrimination claim. Ames, who is heterosexual, alleges that she was denied a promotion and later removed from her position while less qualified queer employees were given the roles she sought. Her case was dismissed under the Sixth Circuit’s heightened standard.
At the high court, Ohio’s attorneys argued that there was no clear evidence that Ames's sexual orientation was a factor in the employment decisions against her. However, her attorney, Xiao Wang, argued that the additional requirement imposed by the Sixth Circuit is inconsistent with Title VII. “This court has said that Title VII aims to eradicate all discrimination in the workplace,” Wang told the justices. An attorney for the U.S. Department of Justice also argued in Ames's favor.
Both liberal and conservative justices asked probing questions about the background circumstances rule. Conservative Justice Amy Coney Barrett wondered that if the rule was scrapped, there would be a flood of cases alleging discrimination. Wang said more than half of the circuits do not use the background circumstances test, yet they have not seen a surge in litigation. If the justices rule in Ames’s favor, the case could eliminate the background circumstances rule entirely.
PrEP coverage
rtem evdokimov/shutterstock
The court agreed in January to hear Kennedy v. Braidwood Management, a case hinging on the Affordable Care Act's requirement that employers' insurance plans cover, among other things, preventive medications specifically for PrEP without employee cost-sharing. Braidwood Management and some other Texas-based employers claim that the mandate for this coverage violates their religious freedom. "The PrEP mandate forces religious employers to provide coverage for drugs that facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use," says the lawsuit, filed in 2020 in U.S. District Court in Texas. "It also compels religious employers and religious individuals who purchase health insurance to subsidize these behaviors as a condition of purchasing health insurance." The companies are represented by Jonathan Mitchell, the former solicitor general of Texas, who has targeted marriage equality, abortion rights, and the right to private sexual behavior. He crafted a Texas law that bans most abortions after a fetal heartbeat is detected and allows private citizens to sue anyone who aids or abets an illegal abortion.
Initially, U.S. District Judge Reed O’Connor sided with the plaintiffs, ruling that the ACA mandate violated their religious rights. However, the Department of Justice swiftly appealed, and the U.S. Court of Appeals for the Fifth Circuit upheld the district court’s decision butlimited the scope of its effect. The decision meant that while the plaintiffs are exempted, the broader mandate requiring insurance providers to cover preventive services, including PrEP, remains in effect nationwide. The federal government appealed last year, while Joe Biden was still president. The government, perhaps surprisingly, is still expected to argue in favor of the mandate, or at least the process that created it. The Kennedy named in the case, which has undergone several name changes, is Robert F. Kennedy Jr., the secretary of Health and Human Services appointed by Trump. Kennedy inherited the case from Xavier Becerra, Biden's HHS secretary.
At the heart of the case is the structure of the U.S. Preventive Services Task Force, which issues recommendations for preventive services like PrEP. The Fifth Circuit ruled that the Task Force’s structure violated the Appointments Clause of the U.S. Constitution. Under Biden and Becerra, the government maintained that the Task Force operates within constitutional bounds, with members serving as “inferior officers” under the secretary’s supervision, that this structure is consistent with constitutional requirements, and that it is vital to ensure that essential preventive services are covered under the ACA. Kennedy filed a brief in February with a similar argument, saying, “Task Force members are inferior officers, because the Secretary of HHS — a quintessential principal officer — remains responsible for final decisions about whether Task Force recommendations will be legally binding on insurance issuers and group health plans.”
The court has scheduled oral arguments in the case for April 21.
LGBTQ+ books in schools
OJUP/Shutterstock
Oral arguments in Mahmoud v. Taylor are set for April 22. In this case, a group of religious parents in Montgomery County, Maryland, are seeking the power to opt their children out of lessons that include books with LGBTQ+ themes. In October 2022, the Montgomery County Public Schools approved several such books for its language arts curriculum. Parents would be notified about when these books would be part of lessons and could opt their children out if they objected.
"At first, teachers and principals sought to accommodate these requests by excusing students when the books were read in class," says a Montgomery County schools brief filed with the Supreme Court. "The growing number of opt-out requests, however, gave rise to three related concerns: high student absenteeism, the infeasibility of administering opt-outs across classrooms and schools, and the risk of exposing students who believe the storybooks represent them and their families to social stigma and isolation. These consequences would defeat MCPS’s 'efforts to ensure a classroom environment that is safe and conducive to learning for all students' and risk putting MCPS out of compliance with nondiscrimination laws."
After the district ended the opt-out policy in 2023, parents from various religious faiths — Muslim, Roman Catholic, and Ukrainian Orthodox — sued in U.S. District Court in Maryland, saying that exposing their children to this material violated their religious freedom and parental rights. The named plaintiff is Tamer Mahmoud, a Muslim with three children in the district, but several other parents are involved. The named defendant is Thomas W. Taylor, the Montgomery County superintendent of schools. The parents are represented by the Becket Fund for Religious Liberty. Eric Baxter, senior counsel at Becket, has accused the district of “cramming down controversial gender ideology on three-year-olds."
In August 2023, U.S. District Judge Deborah L. Boardman denied the plaintiffs' request for a preliminary injunction that would restore the opt-out policy. She said the parents were unlikely to succeed in proving the merits of their case. "With or without an opt-out right, the parents remain free to pursue their sacred obligations to instruct their children in their faiths," she wrote. "Even if their children’s exposure to religiously offensive ideas makes the parents’ efforts less likely to succeed, that does not amount to a government-imposed burden on their religious exercise." The U.S. Court of Appeals for the Fourth Circuit upheld her ruling, so the parents appealed to the Supreme Court.
The books include Pride Puppy, Uncle Bobby's Wedding, Born Ready: The True Story of a Boy Named Penelope, and Love, Violet. The authors and illustrators of these and the other books in the curriculum released a statement of support for the district through PEN America, a group that advocates for freedom of expression. "We created our books with love and care," it reads in part. "Children and their parents need to see families like their own in books. We have all had the experience of meeting a child and their family who are delighted by our books. We have been told about children hugging our books and carrying them everywhere they go. We have heard emotional stories from adults who wish they had had our books when they were growing up. These were the books we ourselves needed when we were young."
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