The Supreme Court will hear arguments Wednesday on Tennessee’s ban on gender-affirming care for youth — a case that has major implications not just for trans people of all ages, but for how states are able to regulate health care more broadly.
In recent years, half of U.S. states have enacted bans on puberty blockers, hormones, or surgery for trans youth. Tennessee’s ban, which asserts that the state has a “legitimate, substantial, and compelling interest in encouraging minors to appreciate their sex,” is the first to come before the country’s highest court.
The core question of the case, United States v. Skrmetti, is whether Tennessee’s ban on gender-affirming care for youth unconstitutionally discriminates against people on the basis of sex. The oral arguments will occur less than two months before President-elect Donald Trump, who has pledged to stop any federal support of gender-affirming care, will enter the White House.
The justices are expected to rule in the case next spring. Beyond what it could mean for state attempts to restrict access to gender-affirming care for both minors and adults, experts tell STAT the case could also affect future attempts to regulate other areas of health care like reproductive health, and how the federal government interprets the Affordable Care Act’s nondiscrimination rule.
“U.S. v. Skrmetti is a prime example of how the legal world and the medical world have been thrust together,” said Meredithe McNamara, an assistant professor of pediatrics at Yale. “The medical community at large really needs to understand how health regulation is changing.”
What to know about the Tennessee transgender care ban for minors
The Tennessee law banning minors from receiving gender-affirming care was enacted in March 2023 and went into effect that summer. Three families and a health care provider have challenged the law, arguing among other things that it violates the Equal Protection Clause of the 14th Amendment.
The case went to a federal district court in Tennessee, where the U.S. Department of Justice first joined the challenge to the ban. That court granted a preliminary injunction on the puberty blocker and hormone ban, while allowing the surgical ban to remain.
The state then appealed that decision in the Sixth Circuit, which determined that the law does not discriminate based on sex, going against the precedent set by the Supreme Court in a 2020 case, in which it ruled that prohibitions on sex discrimination also protect trans and nonbinary people. Federal lawyers and the American Civil Liberties Union petitioned the Supreme Court to review the Sixth Circuit decision.
The American Academy of Pediatrics, the American Medical Association and almost two dozen other professional medical organizations have filed an amicus brief in support of reversing the Sixth Circuit’s judgement, detailing the benefits of gender-affirming care for minors. The brief reviews the evidence on the mental health benefits that gender-affirming care can have for young people and guidelines for how care is safely provided. But these issues won’t be the focus of the Supreme Court arguments.
“The medical community may pay attention to these arguments and say, ‘Hey, why aren’t we discussing the science or the evidence as much?’” McNamara said. “People will be talking about the evidence, but it’s kind of tangential.”
The court could rule on whether the ban is constitutional — but there are other possible outcomes, too. The justices could rule that the Sixth Circuit needs to apply a higher level of scrutiny to the case and send it back to them. Or they could rule that the case doesn’t need further scrutiny and let the Sixth Circuit decision, and the ban, stand.
“It’s hard to predict what this court will do,” said Nicole Huberfeld, a health law professor at Boston University who studies the intersection of health and constitutional law. The questions the justices ask during oral arguments may offer hints at their thinking. Huberfeld expects to hear questions related to other big health policy issues like Medicaid, spending power, and state regulatory power.
If the Supreme Court rules against the ban in some way, it could render bans in other states immediately unconstitutional, or state-by-state litigation could be required to make that happen.
It’s also possible (though unlikely) that the incoming Trump administration could withdraw the challenge, Huberfeld said. The administration could also switch the position of the U.S. government in the case, Chase Strangio, who will argue the case for the ACLU as the first openly transgender lawyer to argue before the Supreme Court, said in a press briefing Monday. To change positions with a change in administration wouldn’t be unusual, and shouldn’t affect the court’s ability to decide the case, added Pratik Shah, another lawyer working to challenge the ban.
Do transgender care bans constitute sex discrimination?
While this is the first gender-affirming care ban to come before the Supreme Court, it’s not the first time that the question of sex discrimination and transgender people has come up. In 2020, the Supreme Court weighed in with the case of Bostock v. Clayton County. Trump appointee Justice Neil Gorsuch wrote in the majority opinion that, in the workplace, discrimination based on gender identity or sexuality is a type of sex discrimination.
“If you can’t think about the nature of the problem without thinking about the sex of the person, then you have discrimination on the basis of sex,” Huberfeld explained.
Whether the ban is classified as sex discrimination could have implications for the years-long back and forth over Section 1557 of the Affordable Care Act, which specifically prohibits certain health care providers, including those who receive federal funding, from discriminating based on characteristics like race, age, disability, and sex. When former President Barack Obama was in office, he made a rule that discrimination based on “sex” included discrimination based on gender identity. Trump reversed that rule when he took office, then Biden returned to the more inclusive definition.
Trump can reverse the Biden administration’s rule again without the Supreme Court. But the future ruling could be a tool for federal legislators and in lawsuits from states challenging Section 1557.
It’s impossible to say if the court will follow its own precedent in this case. If the Supreme Court agrees with the Sixth Circuit that the Tennessee law does not constitute sex discrimination, other laws regulating access to gender-affirming care for trans people could pass more easily.
To protect people from unfair discrimination, courts use three different tiers of scrutiny to interrogate the constitutionality of laws that might target specific groups of people. These tiers — “rational basis review” at the base level, then “intermediate” and finally “strict” scrutiny — provide benchmarks for how much proof the government must provide that a law targeting a specific group fulfills a government purpose, and how important that purpose is. The Supreme Court has previously stated that intermediate scrutiny must be applied when a person’s rights are being threatened or restricted on the basis of sex.
At the Supreme Court, the DOJ will argue that Tennessee’s ban is subject to this intermediate scrutiny because it is a ban based on somebody’s sex, and that under the scrutiny, the ban does not pass muster. The Sixth Circuit ruled in the Skrmetti case that gender-affirming care bans for trans youth are not subject to intermediate scrutiny because the law bans transition for all minors, regardless of their sex assigned at birth.
“Tennessee is making a series of broader constitutional claims about when the courts can ignore, in essence, the overall principle that when the government draws sex-based lines … the government has to show its work,” Strangio said at the briefing. If the Supreme Court adopts the idea that cases like this do not need intermediate scrutiny, “then it could erode equal protections based on sex more broadly.” (A press officer for Jonathan Skrmetti, the Tennessee attorney general, declined an interview before the oral arguments.)
The ruling will be “an important tool for folks on either side,” said Caroline Medina, the director of policy at the Whitman-Walker Institute, an LGBTQ-focused research and advocacy organization.
Why bans on gender-affirming care for adults could be next
Health policy experts say that if the ban on gender-affirming care for youth is upheld, it could set the stage for future restrictions on adult access, both at the state and federal level.
“We’ve already started to see some of that, so I’m not sure that is a trend that will reverse,” Medina said. Idaho, South Carolina, and Florida have already banned Medicaid funding for adults seeking gender-affirming care. And in Florida, there are restrictive logistical hoops to jump through for adults, such as requiring care be provided only by physicians, that make it harder to access care.
“It’s really hard to see what any sort of justification would be for banning adult care,” McNamara said. “The only purpose in banning care for adults has got to be animus.”
Broader implications for health care
It wasn’t until 2021 that the first state ban on gender-affirming care for youth was passed, in Arkansas. A year later, the Supreme Court overturned Roe v. Wade, unleashing “chaotic conflict between state laws and federal laws” regarding abortion and reproductive health, said Huberfeld.
U.S. v. Skrmetti is another opportunity for the Supreme Court to hand more power to states when it comes to regulating medical care, health policy experts said. And while gender-affirming care and abortion are the most contentious types of health care currently being litigated by states, there are others that could come under the spotlight soon.
States have already shown interest in limiting access to contraceptives and in cutting back requirements for vaccinations. Health policy experts also pointed to stigmatized health care like HIV care or substance use treatment as potential targets.
“We need to pay close attention to this case and how these arguments unfold because we’re likely to see similar themes creep up when health care is regulated in other ways with the incoming administration,” McNamara said.
Clinicians, especially doctors, are often reluctant to think of their jobs as political, McNamara said. But she believes that it’s important for doctors to join licensing boards and get involved in local policy processes.
Bans on any type of health care have ripple effects, she said. “You could literally ban the treatment of toe fungus, and I do think that everybody would feel some sort of aftershock of that.”