There is more drama than usual around the start of the new U.S. Supreme Court session, which begins Monday, October 6.
First up, an appeal seeking a First Amendment protection for therapists who want to use “conversion therapy” on minors will be heard in court Tuesday, October 7. The following week, the justices meeting in private conference will decide whether to allow a transgender athlete to withdraw her lawsuit seeking to compete on a women’s team in college —a withdrawal her right-wing opponents are urging the Court to deny. Soon thereafter, the Court will schedule oral arguments in a second transgender athlete case. Any day now, the Court will announce whether it will grant President Trump’s request to delay the implementation of a lower court ruling that allows a gender-neutral identification information on passports.
And also any day now, the Court could announce whether it will hear at least two appeals seeking to require schools to notify parents if their child seeks to use a different name or pronoun in school.
The first Tuesday’s argument
The argument before the Court Tuesday, October 7, is Chiles v. Salazar (Colorado), asking whether a state law that bans therapists from attempting conversion therapy on minors violates the First Amendment. The state law in question is Colorado’s Minor Conversion Therapy Law.
In Chiles, a Colorado Springs therapist named Kaley Chiles wants to engage in conversion therapy for patients under 18, but Colorado law prohibits such therapy for minors. In 2014, the Supreme Court declined to review a legal challenge to California’s law against conversion therapy; and in 2023, it declined to review a challenge to Washington State’s law. But now, with a solid and more aggressively conservative majority on the bench, the Court has decided to answer the question out of Colorado.
The Tenth Circuit U.S. Court of Appeals last year denied Chiles’ appeal, saying she failed to show the Colorado law “lacks neutrality” or that it was targeted at therapists whose religious beliefs oppose homosexuality.
The Trump administration submitted a brief in support of the therapist and against the Colorado law. Its brief says, “Colorado is muzzling one side of an ongoing debate in the mental-health community about how to discuss questions of gender and sexuality with children. Under the First Amendment, the State bears a heavy burden to justify that content-based restriction on protected speech.”
The state of Colorado’s brief says the law allows therapists to engage in a wide range of therapies for minors, regarding their sexual orientation or gender identity, “including minor patients who do not wish to act on their sexual attractions for religious or any other reasons.”
“The only thing that the law prohibits therapists from doing,” said Colorado’s brief, “is performing a treatment that seeks the predetermined outcome of changing a minor’s sexual orientation or gender identity, because that treatment is unsafe and ineffective.”
One particularly interesting brief, in support of the Colorado law, was filed by five parents of children who were given conversion therapy. Two of the five parents said they lost their children to drugs and suicide because of the therapy. Another brief, filed by nine former promoters of conversion therapy, says they “cannot take back the harm they caused, but they recognize their unique obligation and opportunity to prevent future damage by sharing what they learned through decades of failed attempts to change sexual orientation and gender identity.” Their brief says conversion therapy is “fundamentally ineffective” and has caused “documented psychological harm, including increased suicide risk….”
Tuesday’s argument will take place at 10 a.m. Eastern Daylight Time. To hear the court arguments streamed live, click on the “Live Audio” icon on the Supreme Court website’s home page. A recording of the one-hour argument will be available under the “Oral Arguments” tab later that day; and a transcript of the proceeding will also be posted on the website later in the day.
Gender sport
There are three petitions awaiting action from the Court concerning the attempts by some states to ban transgender females from competing in school sports competitions for girls and women. Two appeals —one from Idaho and another from West Virginia— have been accepted by the Court for review. The third appeal —from Arizona— is still awaiting a signal from the Court.
But in an unusual development, Lindsay Hecox, the transgender plaintiff in one of the two accepted cases, formally notified the Supreme Court September 2 that she had voluntarily withdrawn her original lawsuit against the state of Idaho’s law banning transgender females from female athletic competitions.
Hecox’s litigation succeeded at the lower court levels, so the state of Idaho, joined by the Alliance Defending Freedom, brought appeal, Little (Idaho) v. Hecox, to the Supreme Court. But Hecox’s attorneys from the ACLU said they wished to withdraw the underlying litigation “with prejudice,” meaning “there is no possibility that the controversy might reemerge.”
That last phrase may be one-part wishful thinking. The Supreme Court announced July 3 that it was accepting the state’s appeal of the Ninth Circuit U.S. Court of Appeals. Idaho and the Alliance Defending Freedom, a group that has pressed many anti-LGBTQ appeals, want the Supreme Court to overturn that decision. And, they have accused Hecox and her attorneys of trying to game the judiciary system.
In their petition to the Supreme Court, Idaho and the Alliance said the case presents a clear question: “Whether laws that seek to protect women’s and girls’ sports by limiting participation to women and girls based on sex violate the Equal Protection Clause of the Fourteenth Amendment.” They responded to Hecox’s withdrawing of the case with a metaphorical “Hell no.”
Idaho and the Alliance’s brief said Hecox is simply trying to manipulate the legal system to avoid a decision from the Supreme Court on the matter. They note that, as a student at Boise State University, the 24-year-old plaintiff could still try to play on a women’s sports team.
The target of Little (Idaho) v. Hecox is a law the Idaho legislature passed and Governor Bradley Little signed, in 2020. Entitled the “Fairness in Women’s Sports Act,” the law requires that “Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex” in public high schools or colleges. Any dispute in a player’s eligibility for a female team must require a statement from the disputed player’s doctor attesting to the student’s genetic makeup, testosterone levels, and “internal and external reproductive anatomy.”
A second case testing a law banning transgender females from female sports competitions is West Virginia v. BPJ. It asks whether it violates the constitution or Title IX for states to allow separate sports teams for boys and girls. In April 2023, the Supreme Court voted 7 to 2 in a previous iteration of West Virginia v. BPJ to reject the state’s request that to vacate a federal appeals court injunction that prevented the anti-transgender law from taking effect. The injunction is set to remain in place until the appeals court rules on the constitutionality of the law.
While both Hecox and BPJ have been granted appeals, neither has been scheduled for an argument date. The court has put Hecox’s request to withdraw her case on the calendar for its October 17 private conference. A third case involving transgender female athletes in women’s competitions is Petersen v. Jane Doe, out of Arizona. The Court has not yet indicated whether it wants to hear that appeal.
Other appeals awaiting word from the Supreme Court in the coming days include:
Littlejohn v. Leon County (Florida):This appeal was brought by the parents of a middle school student in Florida. The parents claim the county school district has a “secret gender support plan” that was applied to their 13-year-old daughter, allowing the student to use a different name, “they/them” pronouns, and male bathrooms at school. The school did not notify the student’s parents before taking these actions, but an Eleventh Circuit U.S. Court of Appeals panel said the school’s actions did not “shock the conscience,” and it upheld a district court ruling that said the case should be taken up by state courts. A similar case has emerged from the First Circuit, Foote v. Ludlow, where an 11-year-old middle school student in Massachusetts wanted to transition to “genderqueer.” The child’s guardians oppose helping the student do that and say the Ludlow school district is one of “More than 1,000 public school districts [to] have adopted secret transition policies….” Both the Florida and Massachusetts cases are still filing preliminary briefs.
Kim Davis v. Ermold (Kentucky): This is county clerk Kim Davis’ second petition to the Supreme Court, over her refusal to issue marriage licenses to same-sex couples after the Supreme Court ruled states could not ban such licenses for same-sex couples. In this latest petition, Davis is asking to be excused from paying a $100,000 fine for refusing to issue a license to David Ermold and David Moore. She also seeks the Court to overturn Obergefell v. Hodges, the 2015 decision striking down state bans on same-sex marriage.
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