Supreme Court Upholds State Ban on Gender-Affirming Care for Youth

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On June 18, the Supreme Court an opinion in United States v. Skrmetti upholding a Tennessee law banning the provision of gender-affirming care for youth under 18, concluding that the law did not violate the Equal Protection Clause of the U.S. Constitution. This decision closes off some—but not all—lines of legal challenge against the growing number of bans on providing or covering such services. At the federal level, that includes pending reconciliation language that would prohibit federal Medicaid funding for gender-affirming care for people of all ages, as well two Executive Orders and a series of memos released by HHS and the Department of Justice.

Importantly, this decision did not address federal constitutional theories relating to parents’ rights to make decisions about how to raise their children. Moreover, many state constitutions include rights broader than those defined under the U.S. Constitution.

The Court’s reasoning also has broader implications for other types of laws that target people on the basis of transgender identity, as well as bases like sexual orientation or sex. The Court concluded that Tennessee’s law draws distinctions on the basis of the patient’s age and the medical purpose of a given treatment, not on the basis of the patient’s sex or transgender status. Notably, certain types of legal distinctions—including those based on sex—receive heightened review under the Equal Protection Clause due to the legacy of historical discrimination. By focusing on specific medical diagnoses and interventions, notwithstanding the fact that those diagnoses and interventions are relevant only for transgender youth, the decision aligns with the Trump Administration’s professed goal of limiting so-called “disparate impact” theories, under which a policy that focuses on facially neutral criteria can be struck down if the policy’s negative impacts fall disproportionately on members of a protected group.

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