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All The Ways The Supreme Court Could Impact Gender Justice This Term, Explained (And What We’re Doing About It)
For the past handful of summers, the U.S. Supreme Court has issued decisions that impact the lives of women and LGBTQI+ people across the country. This term will be no different. From a case about “reverse discrimination” against heterosexual women to a case threatening experts’ ability to continue to recommend cost-free coverage of preventive health care services, this term is shaping up to be important for gender justice. Below, we describe some of the most important cases impacting our rights this term, and what we’re doing to fight back. We will update this post as the Court decides to hear more cases, and as it issues these key decisions.
Ames v. Ohio Department of Youth Services
Marlean Ames says she’s a victim of “reverse discrimination”—that she was not hired for the internal promotion she wanted, and was instead demoted from her then-current position, because she is not gay. Because the person who received the promotion she wanted is gay, as are the person who replaced her in her former job and her former supervisor, Ames contends that her heterosexuality must be the reason for her workplace woes. After losing in the Sixth Circuit, Ames has appealed to the U.S. Supreme Court because she believes that in her case she was unfairly required to show “background circumstances” that would support her suspicion that her employer “is that unusual employer who discriminates against the majority.” She argues that this requirement itself discriminates against members of “majority” groups.
NWLC joined an amicus brief to the Court in this case, led by the NAACP Legal Defense & Educational Fund, that explains that the relevant federal law protecting against employment discrimination—Title VII—was enacted to protect historically marginalized groups, especially Black people, from unfair treatment at work. And data shows that, just as when Congress enacted Title VII, Black people and other members of historically oppressed groups are far more likely to endure employment discrimination than workers who are not in these groups. Thus, although Title VII serves to protect all people equally—including those in the “majority” as well as those in the “minority”—it does not require courts to ignore the reality that discrimination against those in historically oppressed groups is simply much more likely than discrimination against those who are not.
The Court heard arguments in this case on February 26.
Kennedy v. Braidwood Management Inc.
For over a decade, the Affordable Care Act (ACA) has required insurers to cover expert-recommended preventive health services without cost-sharing (a.k.a. without any deductibles, copayments, or coinsurance required). This requirement has ensured no-cost coverage of crucial care, such as cancer screenings and contraception, for over 150 million people. Now the Supreme Court will consider a case that puts no cost-coverage of preventive care in jeopardy: Kennedy v. Braidwood Management Inc.
This is a case manufactured by conservative extremists to once again attack the ACA. The case was strategically filed in front of federal district court judge Reed O’Connor, who has garnered national attention for his activist decisions against the ACA. The anti-ACA plaintiffs got exactly what they wanted when Judge O’Connor attempted to lift the requirement that insurers cover any of the preventive services recommended by expert federal agencies since the ACA went into effect in 2010. When the government urgently appealed to block that radical decision, the National Women’s Law Center submitted an amicus brief to the appeals court. Our brief focused on the importance of protecting access to women’s preventive services—one of the three categories of preventive health services required to be covered without cost-sharing under the ACA. We explained that without the women’s preventive services provision, millions of women—particularly those who face multiple and intersecting forms of discrimination—would lose access to essential health care, including screenings for sex-specific forms of cancer, breastfeeding services and supplies, and contraception.
The Court of Appeals’ decision left the women’s preventive services requirement safe for now, but the U.S. Supreme Court is set to decide other questions in this case this term. Specifically, the Court will decide whether the expert agency the recommends most of the 100 preventive health services covered under the ACA violates the Appointments Clause of the U.S. Constitution because its members are not each individually confirmed by Congress. We have broken down—and debunked—the challengers’ legal arguments in a fact sheet about this case. In real world terms, this case will decide whether coverage of preventive health services should be guided by experts—who are able to update their recommendations based on the latest science and innovations—or if almost all preventive coverage requirements previously set will be effectively nullified. NWLC joined an amicus brief to the Supreme Court highlighting that the loss of up-to-date, no-cost preventive care would reverse the progress our country has made since the ACA to improve health outcomes and health equity, particularly for low-income women, women of color, and LGBTQI+ people. If the Court agrees to roll back preventive coverage requirements, its decision could have devastating public health consequences—and it could pave the way for continued litigation that may ultimately eviscerate the women’s preventive services coverage requirements entirely.
The Court will hear arguments in this case on April 21.
Medina v. Planned Parenthood South Atlantic
Like millions of other Medicaid recipients, Julie Edwards sought routine medical care from her chosen provider, Planned Parenthood, in her home state of South Carolina. Julie sought access to birth control because she has diabetes and was advised by doctors that complications from her condition would make carrying a pregnancy to term dangerous. After struggling to find a provider that would take Medicaid and also provide her with the birth control method she wanted, Edwards became a patient at Planned Parenthood South Atlantic (PPSAT). At PPSAT, Julie was provided the services she was looking for and at a level of care that made her decide that she would return there for future reproductive health care needs.
Then the state thwarted her decision. In July 2018, South Carolina’s Department of Health and Human Services terminated PPSAT’s participation in the state Medicaid program, not because PPSAT was unfit to perform Medicaid-covered services, but rather because the governor sought to withdraw state Medicaid funding from any organization that provides abortion care.
For Julie and other Medicaid recipients, this has meant that they can no longer see their preferred providers for well-women visits, contraception counseling, and STI screening—simply because those providers offer a comprehensive spectrum of reproductive health care services. This is contrary to the Medicaid law itself, which was amended by Congress shortly after the program was established to provide Medicaid recipients with the right to freely choose their providers. Finding a provider that takes Medicaid is a challenge in itself; once found, it is unsurprising that Medicaid recipients often choose to become regular patients with those providers. Julie is no different from the millions of women across the United States who rely on Medicaid for access to health care services, including outsized proportions of women of color who live in states with anti-abortion policies like South Carolina’s. For women with limited means, stigmatizing and unlawful limitations on their choice of providers creates yet another obstacle in their path to accessing essential health care—and further puts them at risk for adverse health outcomes.
NWLC anticipates joining a brief to the Supreme Court in defense of Medicaid recipients’ freedom to access reproductive and other forms of health care from providers that they trust. The Court will hear arguments in this case on April 2.
Lackey v. Stinnie
On first glance, Lackey v. Stinnie might not seem like an important gender justice case. The case began as a challenge to the Virginia DMV’s policy of automatically suspending the license of any driver who had unpaid court fines and fees. But, because of this case, the Court seized an opportunity to deny civil rights litigants fee awards (reimbursement from state defendants for attorneys’ fees and costs) when they succeed in resolving their lawsuits after winning a preliminary injunction (an early order in a case that blocks a challenge law or policy). Instead, the Court determined that these brave plaintiffs should not be considered a “prevailing party” under the federal civil-rights fee-shifting statute, even when states change their policies as a result of the decisions in their cases.
Dry though this issue might sound, it is nearly existential for the people helped by the National Women’s Law Center and the other nonpartisan, nonprofit public interest organizations dedicated to protecting civil rights for women and girls of color and LGBTQ people through the courts. That’s why NWLC joined eighteen other organizations in an amicus brief in this case. Fee awards make civil rights lawsuits possible. Without them, many people who have their rights violated will no longer be able to find lawyers to represent them. And when people are unable to challenge violations of their rights, those rights become meaningless—a right that goes unenforced is a right on paper alone.
United States v. Skrmetti
Just since 2022, about half of the states in the U.S. have adopted harmful and medically unjustified bans on essential health care for trans youth. Now, for the first time, the Supreme Court is considering whether these dangerous laws are constitutional. Its upcoming decision in U.S. v. Skrmetti, the challenge to Tennessee’s ban on gender-affirming care for young people, may have far-reaching impacts for trans people all over the country—and it could potentially reshape sex discrimination protections for everyone.
The National Women’s Law Center joined an amicus brief in this case explaining why Tennessee’s ban is unconstitutional. Our brief laid out why courts need to treat gender-affirming care bans as sex discrimination—meaning that courts need to be skeptical of the reasons states give for the unequal treatment required by these laws and require that the law effectively serve important state interests if it should be permitted to stand. And we showed why the Court of Appeals got their sex discrimination assessment wrong. The Court of Appeals tried to invent broad exceptions to what counts as sex discrimination under the U.S. Constitution, directly contradicting decades of Supreme Court decisions on gender equality. If this misinterpretation is upheld, not only will it be much harder to challenge anti-trans health care bans—it could open the door for courts to allow many other forms of sex discrimination too. Our amicus brief explains why the Court should reject this baseless and dangerous revision of long-established sex discrimination standards and strike down Tennessee’s ban as unconstitutional.
