WASHINGTON — The Supreme Court opens a new term Monday, facing major decisions on whether states can ban “gender-affirming care” for transgender teens and if the U.S. government can restrict the sale of untraceable “ghost guns.”
Both cases could have a broad impact in the years ahead.
The first could outlaw discrimination nationwide against transgender youth, or instead uphold the power of red states to decide the divisive issue on their own.
The other — to be argued Tuesday — could score another victory for gun rights groups, making it easier for criminals and many others to get firearms they cannot obtain legally.
They are among the many contentious issues due to be decided in the coming term, including whether the government can restrict the marketing of new e-cigarettes that appeal to minors and whether states can set age limits for pornographic websites.
The transgender and gun cases both arose from appeals by Biden administration lawyers. They are asking the conservative-dominated Supreme Court to overturn decisions from even more conservative lower courts.
Last year, Tennessee joined 23 other conservative states to outlaw the use of puberty blockers and other hormones that allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.”
The Williams Institute at UCLA told the court that “more than 100,000 youth aged 13 to 17 identify as transgender and live in states where their access to puberty-blocking medication and gender-affirming hormone therapy is threatened by state prohibitions.”
Most red states have also refused to abide by new Education Department rules that forbid schools and colleges from discriminating against transgender students.
After months of delay, the Supreme Court announced in June that it would hear the Biden administration’s appeal challenging the Tennessee law as unconstitutional.
“This is obviously the blockbuster case of this term,” said Washington attorney Deepak Gupta. “It’s about the fundamental power of parents to direct medical care for their children.”
While the Constitution forbids states and public agencies from discriminating based on race or sex, the court has not said whether this antidiscrimination rule extends to gender identity.
The ACLU and Lambda Legal sued to block the Tennessee law on behalf of three transgender adolescents and their parents who had been obtaining hormones from the Vanderbilt University Medical Center.
But the Ohio-based 6th Circuit Court allowed it to take effect in a 2-1 decision. Chief Judge Jeffrey Sutton said state lawmakers had questioned the safety and long-term effectiveness of hormone treatments. In cases like this, judges should proceed cautiously and defer to lawmakers, he said.
The court will hear arguments in the case of U.S. vs. Skrmetti in December, and the outcome may rest with Chief Justice John G. Roberts Jr. and Justice Neil M. Gorsuch.
Four years ago, they ruled the federal civil rights law forbids job discrimination against transgender employees. Writing for a 6-3 majority, Gorsuch said the 1964 law prohibited discrimination on the basis of sex, and firing employees because of their gender identity was clearly discrimination based on sex, he said.
The new case asks whether the same understanding applies to the Constitution’s even broader guarantee of “equal protection of the laws.”
The ghost guns case will be argued on Tuesday.
In recent years, police agencies, including the Los Angeles Police Department, have voiced alarm at the growing threat of easy-to-assemble guns that can be bought as kits online.
Three years ago, the LAPD said these “ghost guns are an epidemic not only in Los Angeles but nationwide. … Ghost guns are real, they work, and they kill.”
The Justice Department told the court that local law enforcement agencies seized more than 19,000 ghost guns at crime scenes in 2021, a more than tenfold increase in four years.
In her appeal, Solicitor General Elizabeth Prelogar said these gun kits could “effectively nullify” gun laws dating back to 1968 that allow police to trace weapons that are used in crimes.
Without new regulations, “anyone could buy a kit online and assemble a fully functional gun in minutes — no background check, records, or serial number required,” she said. “For example, the ‘Buy Build Shoot’ kit marketed by Polymer80 allowed a purchaser to assemble a fully functional Glock-variant semiautomatic pistol in as little as 21 minutes,” she said.
“The lack of serial numbers, transfer records, and background checks made ghost guns uniquely attractive to people who were legally prohibited from buying guns or who planned to use them in crime,” she added.
Two years ago, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a regulation to say gun parts, including a frame or receiver, will be deemed a “firearm” if they could be readily assembled into a working weapon.
Two gun owners and several manufacturers filed a suit before a federal judge in north Texas, who ruled the regulation was illegal and could not be enforced.
Last year, the Supreme Court kept the federal regulation in place by a 5-4 vote.
California Atty. Gen. Rob Bonta had joined with state attorneys in 13 other blue states in urging the Supreme Court to revive the federal rules on ghost guns.
They said that even in states such as California that forbid the manufacture and sale of weapons with no serial numbers, the previous “federal inaction has enabled individuals to circumvent state gun laws and bring unserialized weapons into the very states that have been trying to keep them out.”
For example, even though California has attempted to curb unserialized guns since at least 2016, these weapons accounted for nearly 30% of all guns recovered in the state by the ATF, he said.
Meanwhile, the number of unserialized guns recovered by California law enforcement agencies increased from 167 in 2016 to nearly 12,900 in 2022, a 77-fold increase, Bonta said.
Undeterred by the Supreme Court’s order last August, the conservative 5th Circuit Court in New Orleans struck down the ATF regulation in November and ruled a “weapon parts kit” is not a firearm, even if it can be assembled into one.
In April, the justices said they would hear the government’s appeal in the case of Garland vs. VanDerStok.
The outcome in both cases could be affected by the presidential election in November.
If Donald Trump wins the election, his administration could withdraw the Biden administration’s pair of appeals in January, and let stand the conservative lower court rulings.
