A turn to sanity? SCOTUS upholds Idaho law limiting “transitioning”

Amid ongoing controversy over “gender affirming” care for minors experiencing gender dysphoria wishing to transition, a divided Supreme Court recently largely upheld Idaho’s Vulnerable Child Protection Act (VCPA). The VCPA, applicable to children and vulnerable adults, bans medical professionals from performing surgeries on those under eighteen to sterilize, mutilate, or construct artificial tissue appearing to be genitalia differing from their biological sexes, and performing mastectomies. Moreover, the VCPA prevents medical personnel from administering or supplying medications to induce profound morphologic changes in their genitals or transient or permanent infertility including puberty-blockers or supraphysiological doses of testosterone to females or such doses of estrogen to males and/or removing otherwise healthy or nondiseased body parts or tissues.

As one of twenty-five jurisdictions barring health providers from performing gender-transition surgeries, prescribing puberty blockers, and/or providing hormone treatments for those under eighteen, Idaho became the second state to criminalize such treatments. Medical personnel who violate the VCPA can be convicted of felonies and imprisoned for not more than ten years. Another section of the VCPA, focused on vulnerable adults, allows violators to be fined up to $25,000.

After Idaho’s legislature passed the VCPA, on April 4, 2023, Governor Brad Litt signed it into law, effective January 2024. Within weeks, the parents of two minors who sought to transition challenged the VCPA. Pam Poe was a ninth-grader born male who identified as female since seventh-grade. Sixteen-year-old senior Jane Doe was born female but publicly identified as male, starting in the fall of 2020.

Relying on the Fourteenth Amendment to the United States Constitution, the students alleged that the VCPA violated their rights to equal protection. The parents argued that the VCPA violated both their rights to autonomy in raising their children and their due process protections because it failed to provide fair notice about its requirements.

In Pam Poe v. Labrador, a federal judge in Idaho enjoined enforcement of the entire VCPA. The Ninth Circuit, without comment, denied Idaho’s request to stay the trial court’s dictate. When Idaho officials filed an emergency appeal with the Supreme Court—not surprisingly, in light of its many radical positions opposed to Christian beliefs—the Federal Justice Department submitted a brief supporting the plaintiffs arguing the VCPA violated their rights.

On April 16, 2024, a divided Supreme Court limited the trial judge’s order in a brief twelve-line judgment. The Court allowed Idaho officials to enforce the VCPA against all non-parties pending the disposition of an appeal to the Ninth Circuit and its own decision whether to hear a subsequent challenge if one is filed.

Justice Kagan, with whom the emergency appeal was filed in her capacity of handling such cases for the Supreme Court, denied the request for the stay. Chief Justice Roberts did not reveal how he voted.

Justice Gorsuch’s concurrence, joined by Justices Alito and Thomas, criticized the trial court for overreaching in enjoining the entire VCPA. Justice Kavanaugh, joined by Justice Barrett, agreed with Gorsuch that the trial judge exceeded his authority but focused on the nature of emergency appeals. Justice Jackson, joined by Justice Sotomayor, dissented because she thought the Court should have allowed the litigation below to play out before intervening.

Pam Poe v. Labrador is noteworthy for two legal reasons.

First, in an issue beyond the scope of this column, the Supreme Court warned federal trial judges not to exceed the boundaries of their authority in preventing states from enacting duly adopted statutes.

Second, following rulings of the Sixth and Eleventh Circuit upholding similar laws in Tennessee and Alabama, respectively, banning “affirming care” for minors, an interesting situation is taking shape. More specifically, if the Ninth Circuit affirms its earlier order, it will create a “split between” the Circuits such that the Supreme Court is more likely to intervene to put all states and Americans on an equal footing.

Moving beyond solely legal arguments are questions about the role of legislatures, courts, and parents. While “[t]he child is not the mere creature of the State,” controversies over transgender surgery and treatments raise significant issues about the relationship among parents, states, and the courts.

Parents certainly remain the primary caregivers of their minor children. Yet, what oversight should states have in protecting impressionable, likely immature, young people and, for that matter, vulnerable adults, from engaging in life-altering and still largely experimental treatments? How can individuals under eighteen who cannot accept aspirin from school nurses, purchase cigarettes, vote, or enter contracts agree to submit to social pressures are, often with the backing of their parents and medical personnel, be encouraged to proceed with “transitioning.”

It is unclear why it is urgent for young people to undergo such significant changes so quickly without pause, at least until reaching adulthood, when they are free to act independently and, hopefully, more maturely. Why are parents not urging their minor children to act cautiously? Perhaps parents and their children need counseling from non-advocacy groups before proceeding. Of course, young people experiencing gender dysphoria deserve compassion and support in their struggles. Still, patience should be in order because most young people identifying as transgender accept their biological sexes by the time they reach adulthood.

Dignitas Infinitas, on human dignity, promulgated on April 2, 2024, by the Dicastery for the Doctrine of the Faith, offers sound moral advice and perspective. Amid predictable wailing and gnashing of teeth from the so-called mainstream media opposed to its guidance, Dignitas Infinita presciently rejects both “gender-affirming care” and “gender theory” as grave violations of human dignity. It also affirms Biblical teachings that because men and women are biologically different, one cannot become the other. Dignitas Infinita adds that attempting to change one’s sex “amounts to a concession to the age-old temptation to make oneself God, entering into competition with the true God of love revealed to us in the Gospel.”

A final ironic issue concerns democracy. Critics who seek to invalidate laws such as the VCPA, often as “threats to democracy,” miss two related key points. First, as a republic, not a democracy, Americans elect representatives to enact laws and policies on their behalf. Second, as a republic, voters can replace politicians who fail to govern as they wish. Thus, rather than work within the democratic process they supposedly cherish, critics resort to unelected federal judges—even as Justice Thomas mused that the Supreme Court “may have become the most dangerous branch” because it can override the will of voters.

What critics ignore is that the VCPA intends to protect vulnerable minors. Yet, rather than caring about minors, the critics of the VCPA and similar laws focus on imposing their ideological goals at all costs. These critics are indifferent to the well-being of youth experiencing gender dysphoria as they encourage minors to take medications and undergo potentially dangerous procedures subjecting themselves to irrevocable changes they likely do not fully understand in lieu of exercising caution by waiting until they reach adulthood to act. Although the Supreme Court largely upheld the VCPA, stay tuned, as this and related battles are sure to continue.