On April 16, the Supreme Court ruled that Idaho can enforce its Vulnerable Child Protection Act, which was passed to protect children from the “lasting harm and irreversible damage” of transgender “medical treatment.” With the Supreme Court’s order, the law can go into effect while the litigation winds itself through the court system. This is undoubtedly a victory in the gender ideology war. And not just for Idaho, but for the whole nation. This ruling marks the first time the Supreme Court has weighed in on the issue of whether states can prohibit minors from taking cross-sex hormones and puberty blockers and undergoing gender transition surgeries. And although the court didn’t make a final ruling on the law’s constitutionality, its short order and the concurring opinions shed light on where the court might rule when this case — or one like it — inevitably reaches the court on the merits.
Background
In 2023, Idaho passed the Vulnerable Child Protection Act. The act, like similar laws across the nation, prohibits doctors from giving puberty blockers and cross-sex hormones to minors and from performing surgeries that “sterilize or mutilate” children’s genitals. Doctors who violate the law can be imprisoned for up to 10 years. Two children and their parents, represented by the ACLU and others, sued the Idaho attorney general arguing that the law violated the 14th Amendment. The plaintiffs asked for an injunction — basically a fancy legal term that means that the law can’t go into effect while the case is litigated.
The most important factor in granting an injunction is whether the party asking for it is likely to win the case “on the merits,” that is, after the case is fully litigated — after discovery, motions, briefing, trial, etc. The district court held that the plaintiffs were likely to win because the act, in the court’s opinion, unconstitutionally denied transgender children the equal protection of the law and parents the right to make decisions concerning the care, custody, and control of their children. Accordingly, the court issued an injunction. And not just any injunction. The district court barred Idaho from enforcing any part of the law on any person in the entire state of Idaho. Typically, judges, particularly district court judges, only make rulings that affect the parties in the case. Not so here. The judge ruled that a “statewide injunction” was appropriate to prevent “needless and repetitive litigation.”
Idaho then appealed to the Ninth Circuit, asking only that it “stay” — or put on pause — the district court’s order, and at minimum scale it back such that it applied only to the parties in the case. In other words, Idaho asked that it be permitted to at least enforce the law against everyone except the two children and parents involved in the case. Seems like a reasonable position. Apparently, the Ninth Circuit didn’t think so. It denied Idaho’s appeal, so Idaho appealed to the Supreme Court asking for an “emergency order” that would overturn the district court’s injunction.
The Supreme Court’s Opinion
In a very short order, the Supreme Court “stayed” the district court’s order, meaning that Idaho can enforce the act against all non-parties while the litigation plays out in the lower courts. In addition to the short order, there were two concurring opinions, one written by Justice Neil Gorsuch and another by Justice Brett Kavanaugh, that shed more light on where the Supreme Court stands on this critical issue.
Justice Gorsuch, joined by Justices Thomas and Alito, rebuked the district court for granting a “universal injunction.” By granting such a broad injunction, the district court prohibited Idaho from enforcing the act against non-parties, including its “prohibition against surgeries to remove or alter children’s genitals,” and this despite the fact that neither of the plaintiffs “had sought access to those surgeries or demonstrated that Idaho’s prohibition of them offended federal law.” How could a district court judge order that a state be prohibited from enforcing part of a duly enacted law that affected neither of the plaintiffs in the case — and before the case was even decided on the merits? It could not, said Justice Gorsuch, and “[i]n choosing such an extraordinary remedy, the district court clearly strayed from equity’s traditional bounds.”
Why It Matters
This is an important holding, not only because it allows Idaho to enforce this critical law for at least the next few years, but also because of the message it sends to lower courts who are issuing orders that routinely exceed their authority.
But even more important than allowing the law to go into effect is the signal that the Supreme Court sent on where it stands with respect to the constitutionality of laws like Idaho’s Vulnerable Child Protection Act. Currently, an estimated 22 states have laws in effect that prohibit so-called “gender-affirming” medical treatment. The only two federal appellate courts — the Sixth and Eleventh Circuits — that have ruled on the issue have upheld their constitutionality. But many district court judges, like the one here, have found such laws unconstitutional. And it’s very likely that the Ninth Circuit will rule that Idaho’s law is unconstitutional. If that happens, it will create “a circuit split” and an inevitable showdown at the Supreme Court.
So how might the court rule? To be clear, it would be unwise to read too much into the Supreme Court’s current order. It wasn’t a ruling on the merits, and the heart of the concurring opinions dealt with overbroad district court injunctions and how the Supreme Court should handle such cases moving forward. But it isn’t as if the order tells us nothing. The fact that the Supreme Court overturned the district court’s broad injunction might indicate that the Supreme Court believes that the law is constitutional — that Idaho is likely to succeed on the merits. Second, in discussing the criteria for whether the Supreme Court should even accept emergency applications like Idaho’s in the middle of litigation, Justice Kavanaugh, who was joined by Justice Amy Coney Barrett, stated that one of the criteria the Supreme Court should use is whether the merits of the case “warrant [the] Court’s review.” In other words, the Supreme Court should be inclined to make interim emergency orders like this one if the case is significant enough that the Supreme Court will ultimately need to take the case at a later date and rule on the law’s constitutionality. Given that the Supreme Court did make such an order in this case, and the order overturned the lower court’s holding, it shows that at least some members of the Supreme Court stand ready to intervene if the district court’s opinion doesn’t change.
Thus, while it would be too much to say that the war has been won, it would be too little to say that gender ideology hasn’t suffered a defeat. Everyone in favor of protecting children from genital mutilation, double mastectomies, and from the irreversible damage of puberty blockers and cross-sex hormones can and should celebrate. We can’t have the final victory celebration yet, but this ruling puts us one step closer.
S. Ernie Walton is an assistant professor at Regent University School of Law in Virginia Beach, Virginia.
