303 Creative, Transgender Rights, and the Ongoing Culture Wars
By Michael R. Ulrich
The Supreme Court’s ruling in 303 Creative LLC v. Elenis suggests a willingness to ignore the rights and health implications for minority populations under the guise of protecting against theoretical harms. The decision is a crucial blow to strides made in achieving gay rights, and may bolster other attacks on LGBTQ+ rights. As laws that restrict the rights of transgender people in the U.S. face challenges in court, the legal, public health, medical, and bioethics communities have an essential role to play both in properly framing the legal issue, as well as explaining what is truly at stake in these cases to minimize the chances of similarly harmful rulings for the transgender community moving forward.
In 303 Creative, the Supreme Court held that Colorado could not punish a website designer who may theoretically start creating wedding websites but wants to refuse to serve gay customers. While the Court stated the issue as Colorado potentially forcing the designer to speak in support of gay marriage, an alternative framing is that the Court prohibited the state from protecting its gay citizens from discrimination from any business that can conceivably categorize their services as speech.
As I have written elsewhere, carving out an exemption from general public accommodation anti-discrimination laws for those who wish to declare “no gays” has significant public health implications for a population already suffering from mental health disparities. Discriminatory laws that specifically target transgender people are likely even more damaging. What began with bills that limit the ability of an individual to use bathrooms that align with their gender identity has grown into bans on sports, using preferred names and pronouns, books, and even essential health care. Research has demonstrated the negative expressive impact the law can have on mental health, which is particularly troubling for the transgender community. While suicide alarmingly has become the second leading cause of death for youth in the United States, transgender youth have episodes of suicidal ideation at 2-3.5 times the rate of their cisgender peers. Despite these disparities, the deluge of restrictions persists, with bans on gender affirming care perhaps the most disturbing given that some transgender youth have described suicide as an alternative to hormone therapy.
When you hear the justifications for bans on gender affirming care, it would be understandable if you have a spell of déjà vu. Preventing regret for the those who lack sufficient capability to understand the consequences of their decision are some of the same paternalistic arguments made for decades to restrict access to abortion. Mix in a bit of misinformation — substitute experimental, irreversible surgeries performed on prepubescent children in place of abortions causing breast cancer — and you can see how easily the oppressive playbook has been repurposed for a new fight after Dobbs v. Jackson Women’s Health Organization rescinded the constitutional right to access abortion.
I have been working with a group of bioethics scholars and lawyers to push back against these blatant misrepresentations used to prop up the hundreds of bills that are denying medical care to youth in desperate need of help. But how much courts are willing to listen to the truth remains to be seen. Despite some early success in lower courts that have struck down these health care bans, state legislatures move forward undeterred and even achieved a recent victory with Tennessee’s ban allowed to go into effect before a ruling on the merits of its constitutionality has taken place. 303 Creative, where the Court ignored the health implications of service denials, is likely to strengthen the resolve of those targeting transgender rights. And again, the framing of the legal inquiry will be key.
For example, BPJ v. West Virginia considers whether West Virginia’s law defining girl and woman as biologically female for secondary school sports is valid. The district court describes the central question as whether West Virginia can protect equal athletic opportunities for females by excluding transgender girls from participating in girls’ youth sports. Yet, the plaintiff — an eleven-year-old transgender girl who wants to try out for the girls’ cross-country and track teams — believes the state is simply targeting transgender girls to bar them from participating in sports. Some context may help to clarify which of these is more accurate.
West Virginia suggests the law in question is about protecting female athletes. “The record makes abundantly clear, however, that West Virginia had no ‘problem’ with transgender students playing school sports and creating unfair competition or unsafe conditions,” according to the district court. In fact, there was “no known instance of any transgender person playing school sports” in the entire state. Setting aside the fact that the unfair advantage argument lacks supporting evidence, West Virginia’s law was, as the court rightfully put it, “a ‘solution’ in search of a problem.” Thus, a central aspect of these cases must be an evaluation of states’ authority to target transgender individuals and subject them to harm with no discernable benefits to the public.
Even the lowest level of judicial scrutiny, rational basis review, requires a legitimate government interest. Participating in culture wars does not qualify. Courts must investigate alleged government justifications to avoid rubber-stamping restrictions that do nothing but harm groups that already suffer disproportionately. If courts are unwilling to take on this central role of promoting and protecting justice, health disparities for the transgender community — and, likely, minoritized, marginalized, and underserved communities more broadly — will only get worse.
Michael Ulrich is Assistant Professor of Health Law, Ethics, & Human Rights at Boston University’s School of Public Health and School of Law.
