Craig Konnoth
Volume 77, Issue 2, 289-322
As states have increasingly restricted gender affirming care for minors across the nation (reinforced by a recent Executive Order by President Trump), and though the Supreme Court ruled on one such state ban, a powerful argument has largely been overlooked. This argument emphasizes the fact that transgender minors are not alone in receiving gender affirming care. Cisgender minors also receive such care for precisely the same reasons as transgender minors—unwanted breast tissue development, undesired hair growth, unusual vocal development, and puberty onset. Indeed, cisgender children receive such care at higher numbers than trans children, and many of the medications used for trans care were developed to provide care to cis individuals.
Allowing cisgender children to get care (because their sex assigned at birth aligns with the desired care) and not transgender individuals (because their sex assigned at birth does not align with the desired care) is straightforward sex discrimination. This argument has intuitive appeal, and, as this Article explains, doctrinal importance. Without a showing that cisgender and transgender minors are similarly situated, an equal protection challenge will simply not succeed, as previous Supreme Court cases suggest. Indeed, the Court’s oral arguments highlighted this particular argument.
Leading up to the argument, however, litigators de-emphasized this comparator argument, focusing on other kinds of claims. They looked primarily to the language of the statute and the causal role that sex assigned at birth plays in limiting care. This Article therefore addresses this gap. It shows the importance of comparator arguments in the sex discrimination space, develops it in detail for future litigation purposes, and calls for further research to render this argument a mainstay in future advocacy.