Shannon Minter, legal director for the newly rechristened National Center for LGBTQ Rights (NCLR), is once again, under a second Trump administration, confronting an avalanche of anti-LGBTQ+ law, policy, and rhetoric set off by the White House.

Eight years ago, Minter led efforts by NCLR and GLAD in the first of four lawsuits to challenge Trump’s first ban on transgender service members in the military. Within weeks, the U.S. District Court for the District of Columbia issued a preliminary injunction that put a temporary halt to the discriminatory policy, which lasted almost two years. President Joe Biden restored trans military service before the Supreme Court heard Minter’s case on the merits.

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In Trump‘s second term, Minter returned to court to pursue the same strategyand was granted a preliminary injunction halting the ban almost immediately. But in a sign of the new administration’s lockstep support across the White House and Pentagon for expelling trans service members, and with an even more pliant and larger conservative majority at the Supreme Court, an injunction on the new ban lasted just months.

In May, the Supreme Court “big footed us and issued a stay,” Minter says. It could be years before the Court hears the latest trans military ban argued on the merits.

The change in Minter’s fortunes in court is emblematic of Trump’s consolidation of power across all branches of government in his second term. Together with the Supreme Court’s recent decision allowing a ban on gender-affirming care for trans youth in the Skrmetti case (which NCLR filed an amicus brief for), and a flood of anti-LGBTQ+ legislation introduced or passed in state legislatures, the U.S. has entered “a rough interim period,” the trans lawyer says.

He spoke from his home in Texas.

LGBTQ Nation: You called the Supreme Court’s decision in U.S. v Skrmetti a “cruel blow” to transgender youth and their families. How did the Court get it wrong about the case not being a violation of equal protection under the Constitution?

Shannon Minter: It’s so frustrating. This was the Supreme Court’s chance to tell us what level of scrutiny courts should apply when governments discriminate against transgender people, and they just ducked.

They went through this elaborate dodge of refusing to answer that question by absurdly finding that Tennessee’s law doesn’t target transgender youth. They just go through these formalistic mechanisms to try to somehow come to the conclusion that this law doesn’t do what it plainly does. I mean, it targets transgender youth.

But be that as it may, that is what they did. They treated it like an ordinary “nothing to see here” regulation of medical care and rubber-stamped it.

Democrats “are actually, on the whole, really stepping up, and they’re not abandoning transgender people. And I really appreciate that.”Shannon Minter

So not only is this cruel for all the families and young people in Tennessee and other states that have these bans, who now have been cut off from what is often lifesaving care for these young people, but now it’s just left transgender people in limbo.

Lower courts have no idea now what to do with all these other laws and policies that are targeting the transgender community. This decision could have provided some really clear guidance at a time when we really need it, and instead, it just left everything in a complete muddle and let states get away with these outrageous laws that cause so much harm.

What are some of the Court’s own legal precedents that it ignored by letting lawmakers target young people for being transgender?

Well, they developed a very sudden case of amnesia, because five years ago — which is nothing in Supreme Court time — they were very clear in the Bostock decision that discrimination because a person is transgender is necessarily based on sex. They literally said that you can’t discriminate against a transgender person without taking their sex into account. They were so clear. It was very logical and very strong.

But here they are with a law that could not more clearly target just the core essence of what it means to be transgender, and this is why even Justice [Samuel] Alito was like, “My majority, I’m not really sure how you’re concluding this doesn’t target transgender people.”

What triggers the activation of this law is a medical treatment that’s designed to facilitate a young person who “identifies with or lives with,” as they call it, “purported identity inconsistent with their sex.” They just threw everything that they said in Bostock out the window.  So, very disappointing.

Are there other avenues you’re pursuing to address gender-affirming care bans for trans youth in the 25 states now that have them?

Yes, although they have made it so much more difficult.

Still, this has no negative impact whatsoever on state court challenges under state constitutions. There’s already a couple of those that have been successful, and we’ll be looking more closely at other states where that may be a viable option.

And there’s another option they left open, which is if we can prove that a state ban was based on animus against transgender people. That would be unconstitutional. We did prove that in Florida. The district court found that the ban there was based on animus. That’s now on appeal to the 11th Circuit.

But it’s easier to prove that in some states than in others. In Florida, there was just an enormous amount of evidence of that. That may not always be the case. It’s actually a difficult thing to prove, so I don’t want to give people the impression that’s a slam dunk. It isn’t. But that avenue is still open, and that’s a powerful one.

Based on the Court’s ruling, which reasoned the issues in Skrmetti are better left to “the people and their elected representatives” — as they did when they overturned Roe — what’s to stop state legislatures from imposing a ban on gender-affirming care for all trans people?

Well, this decision does worry me. I’m concerned that it may give states the impression they can do that.

I will say that the decision did put a lot of emphasis on the fact that these laws are about health care for minors. They put a lot of emphasis on the fact that there is supposedly debate about the safety and efficacy of health care for minors.

“Most families love their children, including when they’re LGBTQ, even if they grow up in cultures that make that more difficult or challenging. So I don’t think we’re going to have a stark red/blue divide for that reason.”Shannon Minter

Now, I think that is honestly baloney. I mean, there is no debate among people who practice in this area of medicine and who are actual experts in this area of medicine. There are people who don’t work in medical arenas at all who are out there taking pot shots at the care, but there is no significant internal medical disagreement about this health care. But nonetheless, they believe that there is.

But there’s nothing remotely like that with adult health care. That adult health care has been provided for so long, it is so well established that it is incredibly effective, so that’s a big difference. That’s going to make it a lot harder for anyone to try to justify bans on adult health care.

Is there evidence in the Skrmetti decision or other recent Supreme Court rulings that they could revisit Obergefell v. Hodges, Lawrence v. Texas, and Loving v. Virginia, which, not for nothing, would concern Justice Clarence Thomas directly?

No, they really didn’t. There was nothing. This was exclusively an equal protection case. Those are due process cases, or also known as fundamental rights cases. And so there was no opportunity to say anything like that in this case.

Although Justice Thomas did go out of his way in his concurring opinion to say that he does not believe that the equal protection clause provides any protection for women whatsoever. That’s in a footnote where he says, in his view, if we look at the original meaning of the protection clause, that no one thought it protected women, and in his view, it does not.

After Donald Trump and the Republicans’ bruising and effective attacks on trans identity during the election and since, not many Democrats are standing up in support of transgender people. Does that matter as cases addressing trans identity make their way through the courts?

Oh, it definitely matters. But, you know, I hope that’s not entirely true.

I think we have a mainstream press now that is hell bent on fomenting division, and they are seizing upon anything anyone says in the Democratic Party that could remotely be construed as backing away or backpedaling on transgender rights, and elevating it and seeking to create a firestorm. I think it’s vastly overstated and exaggerated.

I don’t think there’s any genuine falling away to any significant degree among the Democratic Party for support for transgender rights. I mean, they defeated a federal bill that sought to ban transgender kids from school sports. Democrats did a fantastic job of defeating that.

They just did a fantastic job, with some help from the parliamentarian, admittedly, of keeping health care for transgender people in Medicaid in the reconciliation bill, the big whatever we’re calling it bill.  

No, I think people are actually, on the whole, really stepping up, and they’re not abandoning transgender people. And I really appreciate that.

What’s the status of your case representing plaintiffs challenging Trump’s ban on trans military service members, Talbott v. Trump?

We won a preliminary injunction, and a second case also won a preliminary injunction, but the Supreme Court stepped in and big-footed us and issued a stay. So sadly, because of the Supreme Court jumping in with both feet, the ban is now going into effect.

It is devastating. It’s heartbreaking that these service members are now being put into the pipeline to be involuntarily separated. It’s just — it’s awful to watch, and nothing has ever upset me more. I mean, these people have done nothing wrong. They’ve served our country with so much dedication. This is just one of the most grotesque, distressing, morally depraved things I’ve ever seen our country do.

So, while the ban has been allowed to go into effect, where are we? Are those cases still working their way through the courts, and do you anticipate getting them to the Supreme Court to get argued on the merits?

Yeah, absolutely. I mean, it’s not over.

It’s just that now, at this point, when we win — because I believe that we will win — it’s going to be after all these service members have been discharged. Then there can be a remedy where the military has to take them back.

But for many people, that’s going to be, by that point, water under the bridge, and they’ll have moved on with their lives. For many people, returning to the military isn’t going to be a viable option. You can never make up for what’s happening now.

But we’re pressing forward. It’s just that now we’re to the stage that that takes a long time. Litigation moves very slowly, so we’re nowhere near getting a final judgment from the district court. And then it has to go through appellate review, and then it can theoretically reach the Supreme Court. So, we’re sadly years away from that.

How will the Supreme Court’s decision around “universal” injunctions in the birthright citizenship case, which limited district court judges’ ability to impose them, affect the cases you’re shepherding through the courts and others that will come up around LGBTQ+ civil rights issues?

It means that we’re either going to just get relief for individual plaintiffs, or we have to bring class actions. We’ll manage that. But I think the decision is very bad for our country. I don’t think it makes any sense whatsoever. It’s going to make our lives more difficult as litigators.

Are the cases you’re handling now, and the political impetus for them, the inevitable back and forth that comes with arriving at a consensus or accommodation in a democracy? Or is it a sign that the United States is heading toward an irrevocable divide between red and blue states?

Time will tell. I certainly hope it’s not the latter.

I don’t think it will be the latter because one of the unique features of LGBTQ people is that we are born into every type of family. Like, there’s no way to really expel LGBTQ people from states or communities. Most families love their children, including when they’re LGBTQ, even if they grow up in cultures that make that more difficult or challenging.

So I don’t think we’re going to have a stark red/blue divide for that reason, but I do think in the short run, we’re going to be living in a country where some states are really strongly protective of LGBTQ people, and other states are, at least in the short run, honestly, bordering on persecuting them. And that is going to be a rough interim period.  

Science has made it possible for individuals to change sex physically now in a way never before possible, and those advances are only going to grow with time and experience. Is the ability for anybody to transition a fundamental right that’s guaranteed in the Constitution, and is it only a matter of time before society and the law catch up to that scientific reality?

Oh, definitely. We’re so blessed. I mean, as a transgender person, every day I just feel so lucky and fortunate to live in a time when medical treatment is available.

It just makes it so much easier to be a transgender person when you can medically transition, for those of us who need that, and to alleviate the distress that so many people feel, myself included, when your physical self doesn’t match who you really are.

And there’s so much evidence now that being transgender is hardwired, that it has a biological foundation, which just makes sense when you think about it. I’m really confident that over time, with so much more public understanding in support now than there was even 10, 20 years ago, that’s going to continue. It definitely will.