Robbie Ottley, UGA ’24

As transgender people have become more visible in the United States, and as the increasingly extremist Republican Party has sought to use new culture war issues to divide Americans, several states have passed legislation to ban gender-affirming care for trans youth. In the most recent session of the General Assembly, Georgia fell victim to this regressive ideology by passing its own gender-affirming care ban in Senate Bill 140. However, lawsuits against similar legislation in other states have so far successfully argued that gender-affirming care bans facially violate both the Equal Protection Clause and protected due process rights. This post concludes that SB 140, too, is flatly unconstitutional and its enforcement should be prevented by federal courts.

Transphobic rhetoric and legislation have spiked in recent years. Emerging from the conservative establishment’s goal to boost its popularity through “resentments and cultural schisms,” politicized transphobia scapegoats over a million Americans with language of “eradicat[ion].” These transphobic efforts have major concrete consequences, especially for trans youth, who attempt suicide nearly three times more often than their cisgender peers. Since 2021, bans on gender-affirming care have become a popular method of weaponizing transphobia, with 20 states passing bans by law or policy as of June 6, 2023. SB 140, similar to other bans, prohibits “surgical procedures that are performed for the purpose of altering primary or secondary sexual characteristics” as well as “hormone replacement therapies.”

SB 140 and other gender-affirming care bans, however, are based entirely on scapegoating for political gain, and fly in the face of well-established medical science. Supporters of SB 140 argue they are protecting children, but actual doctors have proven the importance of gender-affirming care for trans youth. In 2018, the American Academy of Pediatrics recommended “that youth who identify as [trans] have access to comprehensive, gender-affirming, and developmentally appropriate health care,” acknowledging the severe consequences on trans children’s mental health when gender-affirming care is not provided. Further, while supporters of SB 140 paint gender-affirming care as widespread, even the sponsor of the bill admitted he didn’t know how many children would be affected by the legislation.

Fortunately, the General Assembly will not have the final word on the matter, because SB 140 is unconstitutional. Gender-affirming care bans have been enjoined in federal court in Alabama and Arkansas — with the latter injunction upheld by the Eighth Circuit — for violating the Equal Protection Clause and parental due process rights. A court challenge to SB 140 would show that it violates the Constitution on both grounds.

SB 140 first violates the Constitution by denying equal protection to Georgians. The Fourteenth Amendment’s Equal Protection Clause is the Constitution’s anti-discrimination provision, prohibiting states from “deny[ing] to any person . . . the equal protection of the laws.” When a discriminatory state action is challenged under the Equal Protection Clause, courts will ask whether the discrimination is sufficiently justified. While the answer varies depending on what group is being discriminated against, most discriminatory laws must either satisfy a “heightened scrutiny” test or a “rational basis” test. Under the heightened scrutiny test, a law is constitutional “if it is substantially related to an important government purpose.” Under the less stringent “rational basis” test, a law is constitutional “if it is rationally related to a legitimate government purpose.”

If a heightened scrutiny standard applies, SB 140 fails the test. Heightened scrutiny applies in cases of discrimination based on sex. While case law is evolving on trans rights, in 2020 the Supreme Court held that sex discrimination includes discrimination against trans people in the landmark case Bostock v. Clayton County. Further, multiple circuit courts have held that heightened scrutiny applies to trans people, as trans people are a “quasi-suspect class” even outside the context of sex discrimination. Under heightened scrutiny, the justifications for SB 140 — undermining medical science while harming the very children the legislation claims to protect — are not grounded in reality and therefore do not constitute an “important government purpose.”

But, if the rational basis standard applies instead, SB 140 also fails the test. The “legitimate government purpose” standard is “enormously deferential to the government” and much lower than the heightened scrutiny standard. Still, a law is unconstitutional under rational basis when it “has the peculiar property of imposing a broad and undifferentiated disability on a single named group.” SB 140’s only purpose is to impose such a disability on trans youth, and it therefore unconstitutionally lacks a rational basis.

SB 140 second violates the Constitution by denying Georgia parents their due process rights. Parents have a fundamental due process right to make decisions about the “care, custody, and control of their children,” which the Supreme Court has called “perhaps the oldest of the fundamental liberty interests recognized by this Court.” The parental care right includes protections of parents’ ability to “seek and follow medical advice” for their children. By preventing parents from seeking gender-affirming care for their children when they believe it would be necessary, SB 140 infringes on parents’ due process right to authorize medical treatment for their children.

Because it infringes on equal protection and due process rights, SB 140 is facially unconstitutional. Litigation to block the bill is expected, and the stakes are life and death: Democratic Rep. Karla Drenner was not speaking hyperbolically when she begged trans youth “please don’t kill yourself” in response to the bill’s passage. When injured plaintiffs challenge SB 140, federal courts should not hesitate to use constitutional grounds to overrule the ban.