Transgender health care

The Supreme Court will decide if the government can ban transgender health care

Given the Court’s Republican supermajority, this case is unlikely to end well for trans people.

by Ian Millhiser

The Supreme Court announced on Monday that it will hear United States v. Skrmetti, a case asking whether laws restricting many forms of gender-affirming care for transgender patients are permissible under the Constitution and federal law. Many red states have already enacted restrictions on who may obtain such care.

The plaintiffs in the Skrmetti case have very strong legal arguments under the Court’s existing precedents. The Court has long held that laws that discriminate on the basis of “sex,” meaning sex assigned at birth, are invalid unless the government can offer an “exceedingly persuasive justification” for the law. And a bipartisan majority of the justices held in Bostock v. Clayton County (2020) that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

So state laws that deny health care to trans people, while allowing cisgender patients to receive similar care, should not be upheld under existing law.

That said, the legality of these bans have divided lower courts, with some Republican judges relying on the Court’s decision overruling Roe v. Wade to support the proposition that state legislatures have broad authority to ban medical procedures they deem harmful, even if their judgment is at odds with the consensus within the medical profession.

In April, moreover, a majority of the justices voted to temporarily reinstate Idaho’s ban on gender-affirming care for minors — though the Court’s order Labrador v. Poe also prohibits Idaho from enforcing its ban against the two trans children who actually sued in that case. 

Though the confusing web of concurring and dissenting opinions in the Labrador case largely focused on a procedural issue that is tangential to the question of whether trans health bans are legal, Justice Brett Kavanaugh wrote an opinion, joined by Justice Amy Coney Barrett, which suggests that the state is likely to succeed in its defense of its anti-trans law. While Kavanaugh and Barrett are conservative Republicans, they are ideologically in the middle of this lopsided Court.

All of which is a long way of saying that, while it is possible that the Supreme Court will strike down — or, at least, place limits upon — state laws banning transgender health care, the most likely outcome is a significant defeat for trans people.

The legal arguments against trans health bans, briefly explained

There are several strong arguments against permitting the government to ban gender-affirming care. One is that all laws that discriminate against transgender people are dubious under the Constitution. The left-leaning United States Court of Appeals for the Fourth Circuit has embraced this position.

The Supreme Court has long held that groups that have experienced a “history of purposeful unequal treatment” which “frequently bears no relation to ability to perform or contribute to society,” should enjoy enhanced protections against discrimination. These enhanced protections are known as “heightened scrutiny.”

Yet, while there are strong arguments that trans people have experienced such discrimination, it’s also been a long time since the Court recognized that a new class of individuals are entitled to the protections of heightened scrutiny. Before former President Donald Trump remade the Court, the justices danced around applying heightened scrutiny to laws that discriminate on the basis of sexual orientation, but ultimately they never did it.

So, if a much more liberal Court shied away from giving heightened protection to gay and bisexual Americans, it’s hard to imagine the current Court extending such protection to transgender people. Notably, this question is not before the Court in the Skrmetti case, although it could arise in a future case.

A second argument that could justify striking down bans on trans health care is that these bans violate the constitutional “right to privacy,” a right that allows Americans to make certain medical choices without interference from the government, and also to make certain decisions about how they want to raise their children.

But it’s also very difficult to imagine the current Court’s Republican majority embracing this argument. The most famous right-to-privacy case is, of course, Roe v. Wade, a case that this Court recently overruled and that most Republican judges believe to be anathema. The justices also say that they won't consider this right-to-privacy argument in Skrmetti.

Then there’s a third argument in favor of allowing trans people to make their own health care choices, and this one has actually won some support from the Court’s current Republican members.

Bostock held, in a 6-3 decision authored by Republican Justice Neil Gorsuch and joined by Republican Chief Justice John Roberts, that a federal law that forbids “sex” discrimination in employment also prohibits discrimination on the basis of sexual orientation or gender identity. 

The Court reasoned that discrimination against an LGBTQ employee necessarily requires the employer to discriminate on the basis of sex. If Tom is allowed to date Lily, for example, but Anesha is not, that’s just ordinary sex discrimination because Anesha is being treated differently than Tom because she is a woman.

Similarly, Bostock reasoned that if an employer penalizes an “employee who was identified as female at birth” for identifying as a man or for exhibiting stereotypical male behavior, but does not apply a similar sanction to “a person identified as male at birth,” then that’s just ordinary discrimination on the basis of sex.

Federal law also bans sex discrimination in health care. So Bostock’s reasoning should also prevent many attempts to ban gender-affirming care. 

As the Fourth Circuit explained in its recent decision in Kadel v. Folwell, holding that state-provided health insurance could not refuse to cover certain treatments for trans people, these refusals were illegal because they applied only to people of one sex. The state’s Medicaid program, for example, covered “breast-reduction surgery to treat excess breast tissue in cisgender men, but not to treat gender dysphoria in transgender men; and chest-reconstruction surgery for cisgender women post-mastectomy, but not for gender dysphoria in transgender women.”

Again, this is just ordinary sex discrimination. A state could potentially refuse to cover breast-reduction surgery altogether. But it cannot cover this treatment when a man (or someone assigned the male sex at birth) seeks it, but refuse to cover it when a woman (or someone assigned the female sex at birth) seeks the same treatment.

This said, there may be limits to the Bostock framework. Suppose that a treatment exists that is used solely to treat transgender women, for example. Because this treatment would be used exclusively on people assigned the male sex at birth, a ban on it would not engage in traditional sex discrimination because it would not allow people assigned the female sex at birth to obtain care that others cannot receive.

But it’s far from clear whether any such treatment exists. And, even if it does, the Bostock framework should give trans people broad access to many forms of gender-affirming care.

The strongest legal argument in favor of transgender health bans

While the legal arguments against trans health bans are exceptionally strong, some lower court judges have articulated another argument that is likely to appeal to the justices who joined Dobbs v. Jackson Women’s Health Organization (2022), the Court’s decision holding that abortion policy should be set by elected lawmakers and is not determined by the Constitution.

The best articulation of this alternative theory is Judge J. Harvie Wilkinson’s dissenting opinion in the Kadel case, which argues that a pro-trans reading of the Constitution or anti-discrimination law “would encroach on a State’s prerogative under its basic police power to safeguard the health and welfare of its citizens.”

Wilkinson claims that the medical treatments at issue in cases like Kadel, “puberty blocking drugs, cross-sex hormones, and gender reassignment surgery,” are all “matters of significant scientific debate and uncertainty.” And these debates should be resolved by elected officials and not by unelected judges.

Wilkinson is correct that states must have some authority to restrict or ban medical treatments that may be harmful — no one questions the government’s authority to prohibit doctors from prescribing heroin, for example. Similarly, a state may prohibit doctors from providing a treatment that is widely accepted as inappropriate for a certain medical condition. While breast reduction surgery is the right treatment for some patients diagnosed with gender dysphoria, a state should be allowed to prevent doctors from using it to treat the common cold.

Of course, the Fourth Circuit majority has a good response to Wilkinson. Physicians who provide gender-affirming care are not akin to quacks who write prescriptions for heroin, so long as they make treatment decisions that align with prevailing medical standards. As the Kadel majority explains, the World Professional Association for Transgender Health recommends “assessment, counseling, and, as appropriate, social transition, hormone therapy, and surgical interventions to bring the body into alignment with one’s gender identity.”

Will that argument convince a majority of the justices? Probably not. The Supreme Court’s Republican majority is notoriously allergic to expertise. Two of the biggest cases this term are expected to transfer a simply extraordinary amount of policymaking authority from experts in federal agencies to the judiciary — rejecting a seminal 1984 Supreme Court decision that held that courts should defer to agencies in large part because “judges are not experts” on matters of policy.

Still, the fact remains that two of the Court’s Republicans — Roberts and Gorsuch — joined the majority in Bostock. So there is, at least, some hope for trans patients that those two justices will apply Bostock to bans on gender-affirming care.