Supreme Court upholds Tennessee ban on gender-affirming care for minors

Three years after the Supreme Court overturned Roe v. Wade, allowing states to ban abortion, the justices have decided to let states ban another politically controversial form of health care—this time, gender-affirming medical treatments for minors.

In a major ruling on Wednesday, the Supreme Court upheld a Tennessee law banning transgender kids, but not cisgender kids, from accessing puberty blockers and hormone therapy—regardless of their parents’ support for the treatment. Tennessee’s law is one of 25 state bans on pediatric gender-affirming care passed nationwide since 2021. Nearly all of those laws are currently facing legal challenges by transgender children and their families, and are now expected to be allowed to remain in effect.

The 6-3 decision in United States v. Skrmetti was one of the most anticipated rulings of the year. In their decision today, the justices decided that Tennessee’s ban on gender-affirming care for minors does not treat people differently based on sex, but rather based on age and the medical reason for treatment. As a result, they ruled, the law only has to meet a low legal standard in order to be considered constitutional.

The “case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field,” Chief Justice John Roberts wrote in the majority opinion. “The voices in these debates raise sincere concerns; the implications for all are profound.”

After concluding that the Tennessee law does not violate the Equal Protection Clause of the 14th Amendment, Roberts said that the court was leaving the issue of pediatric gender-affirming care to the states—the same position the court took in the decision overturning Roe v. Wade. “We leave questions regarding its policy to the people, their elected representatives, and the democratic process,” Roberts wrote in his opinion on Wednesday.

The ruling, led by the court’s conservatives, is a major loss for the transgender community at an extremely vulnerable moment. The case is the first Supreme Court ruling on one of the many anti-trans state laws passed in recent years, as powerful religious-right organizations and conservative politicians mounted a coordinated campaign inundating state legislatures with hundreds of bills attacking trans rights of children and adults in schools, sports, and the privacy of doctors’ offices. The attacks have only intensified since President Donald Trump took office in January, and declared that the federal government would recognize only biological sex, not gender identity—forbidding trans people from getting passports that accurately reflect their gender, kicking them out of the military, and ordering supportive teachers to be prosecuted. Another executive order, which has been temporarily blocked by the courts, ordered all federal funding cut off for hospitals and other institutions that provide gender-affirming care to people under 19.

Access to gender-affirming treatments for trans youth is supported by virtually all major US medical associations, including the American Academy of Pediatrics and the American Medical Association. Such care is only provided with the consent of a parent or guardian, and is much rarer than the media and political attention would suggest: A recent study of 5.1 million privately insured patients found that less than .05 percent of youth ages 8-17 were transgender and received puberty blockers or hormones. Even among trans youth, most did not pursue medical treatment.

The lawsuit challenging Tennessee’s ban was brought by the Biden administration’s Department of Justice, an OBGYN treating transgender patients, and three trans teenagers and their families. “I do not want to see her go back to the dark place she was in prior to coming out and receiving the life-saving treatment she needs,” Samantha Williams, the mother of one of the young trans plaintiffs, said of her daughter in a court declaration.

“For so many families, they’ve already experienced the worst nightmare,” Chase Strangio, the ACLU lawyer representing the transgender kids and their families, said in an interview before the ruling. “The healthcare has already been banned in their state. They already have to travel extraordinarily long distances. Many of them are on their third or fourth state and trying to access care. This decision will have a huge impact on how we understand our legal rights and protections moving forward, [but] materially and emotionally for transgender young people and their families, the worst case scenario has already happened.”

The lawsuit asked the justices to decide which legal standard courts should use when evaluating if bans like Tennessee’s are constitutional under the Equal Protection clause of the 14th Amendment. Under longstanding precedent, courts are required to scrutinize laws more closely if they treat people differently based on sex, race, or other protected characteristics. As I reported last December:

Legally speaking, the main issue in the case boils down to the question of whether bans on gender-affirming care are a form of sex-based discrimination. If they are, then states going forward will have to prove, when challenged, that the bans are “substantially related” to an “important state interest.” That’s a fairly high bar—one that would require judges to weigh the medical and scientific evidence around the prohibited treatments. When trial courts have looked at that evidence in the past, they’ve overturned the bans, siding with the trans youth and their families.

At oral arguments in December, Tennessee Solicitor General J. Matthew Rice argued that his state’s ban does not treat people differently based on their sex, but rather based on age and medical purpose. On the other side, Biden’s Justice Department argued that the Tennessee law was sex discrimination, and thus had to be scrutinized under the higher bar.

DOJ lawyers point to the text of the law, which explicitly says that the state wants to “encourage[e] minors to appreciate their sex” and forbid treatments that might “encourage minors to become disdainful of their sex.” The “purpose is to force boys and girls to look and live like boys and girls,” appellate judge Helene White summarized in a dissent from the Sixth Circuit ruling. Under the law, kids can receive puberty blockers and hormone therapy if the medications are provided to help them conform their bodies to their sex assigned at birth, but not if the treatments are provided to help them not conform. “There is no way to determine whether these treatments must be withheld from any particular minor without considering [the minor’s] sex,’” DOJ lawyers argue in their Supreme Court briefing.

When the case first arrived at the district court, the judge applied the higher bar, known as “heightened scrutiny,” and blocked the law from taking effect. But when the Sixth Circuit Court of Appeals ruled on the case in 2023, it decided that the ban did not discriminate based on sex, and thus only had to meet the low level of scrutiny, which experts describe as a “rubber stamp.”

Today, the Supreme Court court agreed, and rubber-stamped Tennessee’s ban. The decision will likely put an end to similar legal arguments challenging other states’ gender-affirming care bans.

“If a transgender boy seeks testosterone to treat gender dysphoria, SB1 prevents a healthcare provider from administering it to him,” Roberts reasoned in the summary of the majority opinion. “If his biological sex were changed from female to male, SB1 would still not permit him the hormones he seeks because he would lack a qualifying diagnosis. The transgender boy could receive testosterone only if he had a permissible diagnosis (like a congenital defect). And, if he had such a diagnosis, he could obtain the testosterone regardless of his sex or transgender status.”

Justice Sonia Sotomayor authored a dissent. “[The court] authorizes, without second thought, untold harm to transgender children and the parents and families who love them,” she wrote. “Because there is no constitutional justification for that result, I dissent.”

The ruling is not likely to affect current challenges against other anti-trans laws involving bathroom access and sports, according to Strangio.

Yet it is likely to serve as a “green light” to the Trump administration, says Shannon Minter, legal director of the National Center for Lesbian Rights, to “go ahead, full steam ahead. You can just continue trampling over this community as viciously as you want.”

But Strangio and other LGBTQ-rights litigators aren’t giving up in the fight against gender-affirming care bans. They’ve also raised a separate constitutional argument that the bans violate parents’ rights to direct their children’s medical care. Today’s decision doesn’t touch on that argument—and the Supreme Court could decide to hear it as soon as next year, Strangio says.

“We will find ways to keep fighting,” Strangio vowed. “We’ll fight in state court. We’ll lobby Congress. We’ll lobby our state legislatures, and we’ll organize in the streets. As we’ve always done.”