Speaker Series: Hila Keren

Statutory bans on providing necessary treatments to trans minors are already in place in about half of the nation’s states. Although many courts have found such treatment bans unconstitutional, the Sixth Circuit affirmed bans enacted by Tennessee and Kentucky in L.W. v. Skrmetti. The decision rejected two separate constitutional challenges under the Equal Protection Clause and the Due Process Clause. However, when the challengers petitioned for the Supreme Court’s review, the Court only agreed to consider the argument—made by the Government as an intervening plaintiff—that the treatment bans discriminate on the basis of sex and transgender status in violation of the Equal Protection Clause. It took no action on the private plaintiffs’ petitions—minors, parents, and doctors—who argued that the treatment bans not only discriminate but also infringe on parental rights in violation of the Due Process Clause.

This Article is the first to analyze the adverse ramifications of such a selective review of the treatment bans. It argues that deciding Skrmetti without considering parental rights is a flawed way to adjudicate the constitutionality of the bans. Far from being merely a procedural issue, narrow consideration stands to skew the substantive outcome of the litigation, allowing the bans to survive despite their striking conflict with the Constitution. This is a possible result not due to a weakness of the legal arguments regarding discrimination: The bans explicitly target transgender adolescents, preventing only them from undergoing treatments that cisgender minors are permitted to receive. Rather, as this Article shows, it is the conservative orientation of the Court that makes the invalidation of the bans under the Equal Protection Clause an unlikely result.

Yet, this Article offers more than an analysis of how selective consideration begets injustice. Because it acknowledges that treating trans youth touches ideological nerves that impact adjudication, it takes on an original task: uncovering arguments that would justify invalidating the bans outside of the liberal framework. By uniquely examining the issue from a conservative perspective, this Article aspires to help persuade enough Republican appointees on the Court that the treatment bans are unconstitutional for reasons independent of their discriminatory intent and content. It canvasses multiple resources to show how conservatives are less united with regard to state intrusion into parental rights than they are in their resistance to gender identity issues. Based on this study, the Article argues that the main path to saving minors’ access to gender-affirming care is to find common ground between liberals and some conservatives on the Court around the bans’ impact on the fundamental rights of parents to direct the upbringing, including healthcare needs, of their children free of government intervention.

Delving even deeper in search of such a coalition, this Article highlights conflicting priorities on the right side of the political map, analyzing how the treatment bans contradict key principles of the libertarian and neoliberal strands within the conservative movement. This nuanced understanding might persuade some Justices, who are more committed to limiting state power than to promoting religious values, to be more skeptical of the bans and join their liberal colleagues in invalidating them as a display of unprecedented government overreach.

Therefore, there might currently be a narrow window of opportunity to invalidate the bans and resume trans minors’ access to the treatments their doctors advise and their parents agree they need. This insight should lead the Court to broaden its review and consider the threat to parental rights before deciding Skrmetti. Yet, if this does not transpire due to excessive partisanship, the Article’s long-term contribution is identifying—for future litigation—how the treatment bans clash not only with trans rights but also with conservative principles. As this Article shows, due care for all minors, regardless of their gender identity, could and should be within reach even in a conservative Court.

To register, contact Sophie Kofman at skofman@abfn.org. 

Hila Keren brings a unique global perspective on contracts and business law to the classroom, having studied, taught and practiced law in Israel for more than two decades. She served on the Faculty of Law of her alma mater, the Hebrew University in Jerusalem, from 2005 until her appointment to Southwestern in Fall 2010. At Hebrew University, she taught basic and advanced courses in contracts as an Assistant Professor of Law and earned the Outstanding Teaching Award. In 2006, Professor Keren was elected by the Israel Academy of Sciences and Humanities to be a member of its Young Researchers’ Forum. Professor Keren was appointed Associate Dean for Research in 2019.

At Southwestern, Dean Keren teaches in the areas of contracts and business law. In addition to earning her LL.B. and Ph.D. degrees in Israel, Dean Keren completed two years of post-doctoral studies at the Center for the Study of Law and Society at the University of California, Berkeley in 2005. During her studies, she was awarded the Birk Foundation Award for Distinguished Research in the Field of Law, the Alice Shalvi Scholarship for Original Feminist Legal Studies, the Rector’s Prize for Outstanding Doctoral Students and the Golda Meir Fellowship. She returned to UC Berkeley in 2007-2008 to teach Contracts and Challenges to Legal Rationality as a Visiting Professor.