When the Supreme Court hears U.S. v. Skrmetti on Dec. 4, trans youth and LGBTQ+ advocates across the country will be watching with bated breath.
The case, which centers on a Tennessee law, will allow the U.S. Supreme Court Justices to decide whether gender-affirming-care bans for minors are unconstitutional under the basis of sex discrimination.
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It’s the first major trans rights case to reach the nation’s highest court after statehouses have passed scores of anti-trans laws in recent years restricting transgender Americans’ ability to use the bathrooms of their choice, play on women’s sports teams, and access certain kinds of health care.
“The central arguments are about not just the legitimacy of trans healthcare, but about, in some sense, the legitimacy of trans people as members of civic life and public life,” Chase Strangio, co-Director for Transgender Justice with the ACLU’s LGBT & HIV Project who is arguing for the plaintiffs in this case, told TIME.
Tennessee’s law Senate Bill 1 (SB1), which the Biden Administration, a doctor, and three families challenged, prohibits doctors from prescribing pharmaceutical and surgical care for transgender minors that are looking to gender transition. Tennessee is home to more than 3,000 transgender adolescents, and across the U.S. there are some 300,000 transgender youth aged 13 to 17, according to UCLA School of Law’s Williams Institute.
Gender-affirming care refers to the social, psychological, and medical care prescribed to trans individuals to support their gender identity when it conflicts with the sex they were assigned at birth. The type of care a minor receives varies from child to child, but the Association of American Medical Colleges says gender-affirming care includes counseling on changes in a child’s social expression (like name changes or hairstyle), puberty blockers, hormone therapy, or surgery—though research from the Harvard T.H. Chan School of Public Health found minimal to no use of gender-affirming surgeries on transgender and gender diverse minors in the U.S. Decisions on the type of gender-affirming care a minor patient receives require consultation between a parent and doctor. Twenty-four states passed gender-affirming care bans for minors, though some are not currently in effect, according to the Movement Advancement Project. Other states, including Florida, have ongoing litigation challenging care restrictions for transgender adults.
What the Supreme Court Justices decide will have significant ramifications for trans youth in Tennessee and beyond—and the stakes could extend to trans adults as well, says Human Right Campaign (HRC) senior director of litigation Cynthia Weaver. “Certainly, how the Court comes out in this Skrmetti case will have some impact on laws that further restrict care for adults,” she says. “It may also encourage or discourage other states to contemplate further restrictions on adult care.”
What the case is about
In U.S. v. Skrmetti, the Supreme Court will decide whether Tennessee’s ban on gender-affirming care for transgender youth violates the 14th Amendment’s Equal Protection Clause.
The case was filed in 2023 on behalf of Dr. Susan Lacy, a medical doctor, Samantha and Brian Williams of Nashville, Tenn. and their teenage transgender daughter, and two other anonymous families. The Biden Administration is also a party in the case in support of plaintiffs.
Tennessee’s Senate Bill 1 (SB1) prohibits doctors from prescribing certain types of treatment for transgender minors, including puberty blockers and hormones. Minors who are seeking that same medication “for other medical purposes,” the state said in a brief, are permitted to take that medication. “The legislature determines that medical procedures that alter a minor’s hormonal balance, remove a minor’s sex organs, or otherwise change a minor’s physical appearance are harmful to a minor when these medical procedures are performed for the purpose of enabling a minor to identify with,” a gender identity different from the minor’s sex at birth, to “protect the health and welfare of minors,” SB1 says.
The plaintiffs, however, argue that Tennessee’s law violates the Equal Protection Clause, because it bans medical treatment in what they say are “explicitly sex-based terms,” according to their brief.
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The Supreme Court will need to decide what level of scrutiny is applicable for Tennessee’s gender-affirming care ban. Respondents believe SB1 should be subject to rational basis review. Laws that do not discriminate against people based on their sex, gender, or other protected class have to pass the rational basis test. “[It] basically means that they have to be rationally related to a legitimate government interest,” says UCLA Law School professor emeritus Eugene Volokh. Volokh uses state laws regulating medical marijuana as an example. “If a state wants to say, ‘We don’t want to allow marijuana even for medical purposes, because we think that, on balance, marijuana doesn’t have sufficient medical benefits to outweigh the harms that it can cause,’ that’s a rational decision for a state,” he says.
The plaintiffs, on the other hand, are arguing for a higher bar for the law to meet, which would make it harder for Tennessee to justify the ban. Under heightened scrutiny, the Supreme Court would have to analyze the laws the state is passing under a more careful review because they would impact a particular population based on a protected characteristic: race, sex, religion, etc.
The District Court applied heightened scrutiny to the case and enjoined the law, but the Sixth Circuit disagreed and applied a rational basis test, which allowed the law to stand. That decision was appealed up to the Supreme Court.
There’s also an important precedent that may affect this case. In 2020’s Bostock v. Clayton County, which concerned a plaintiff who was fired after expressing interest in a work gay softball league, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, which was heard alongside Bostock and involved a woman who was fired for being transgender, the Supreme Court ruled in plaintiffs’ favor. It was the first time the Supreme Court found that sex discrimination protections extended to sexuality and gender identity. If the Court rules in favor of the plaintiffs in Skrmetti, it would reaffirm that position.
Potential impacts of the ruling
The Supreme Court could rule in a number of different ways.
It could find that SB1 violates the Constitution and overturn the ban, which would be a win for LGBTQ+ advocates. Or it could hand down a narrow ruling that would determine the level of scrutiny that applies but send the case back to a lower court to apply that standard. It could instead find that gender-affirming care bans for minors should only receive a rational basis review, which would likely leave the law in place and also affect laws restricting gender affirming care for adult patients, and healthcare more broadly. “There’s potential, because this is a sex-based argument, for this court to say, ‘Actually, we don’t really think that differentiation based on sex deserves any heightened protection.’ And so that could also alter any other types of cases that are broad based on sex discrimination, beyond transgender people,” says Ulrich.
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The incoming Trump Administration could also affect the case. The United States is a party in this case, because the Biden Administration sided with the plaintiffs. But “most people expect that the federal government, once the administration changes, will change their position and switch to supporting Tennessee’s law,” says Ulrich.
Experts are mixed on what effect that could have. Weaver says that with oral arguments already in motion, and the independence of the Supreme Court from other branches of government, there should be no impact. But Ulrich says it is possible the Court could decide to take on a new hearing to see whether they want to accept the petition from the ACLU and Lambda Legal, who are representing plaintiffs.
No matter the outcome, the Supreme Court is set to weigh in on one of the most contentious issues in the country. Transgender rights have become a potent political talking point, and about 50% of Americans believe changing their gender is morally wrong, per a June 2024 Gallup report. But only 34% are in favor of banning gender-affirming-care for transgender minors, the same poll found.
Medical providers are largely in support of this type of care. Every major medical and mental health association in the U.S. has espoused the benefits of gender-affirming-care on the mental health of transgender youth, per GLAAD. A peer-reviewed study published in the journal Nature Human Behavior found that when anti-transgender laws are passed, suicide attempts by trans and nonbinary minors increase anywhere from 7 to 72%.
“Looking at the LGBTQ+ movement broadly as it relates to gay and lesbian people versus where we are with trans people, I think this is really an inflection point,” Strangio said. “It’s not just affecting trans people, it’ll affect all LGBTQ people. It’ll affect all people who experience gender-based discrimination.”