This Supreme Court Case Could Change Everything for Trans Rights
US v. Skrmetti could slow the wave of anti-trans laws—or tell policymakers it’s “open season.”
Madison Pauly
In 2016, when Tennessee OBGYN Susan Lacy learned she would be providing gender-affirming care to transgender patients in her new job at a reproductive health clinic in Memphis, she felt out of her depth. But it didn’t take long to realize that hormone treatments for trans folks weren’t so different from those she’d been providing for years to cisgender patients. She already knew how to use pills, patches, gels, and injections, with their different formulations and side effects, to reduce menopausal night sweats, hot flashes, and brain fog. Patients who took hormones for gender dysphoria told her they felt a similar sense of relief. “It didn’t matter about socioeconomics, age, race, feminizing or masculinizing hormone therapy,” Lacy says. Often the first reaction was, “I finally feel like I can think straight.”
Now a gynecologist in solo practice, Lacy has more than 300 adult trans patients. At one time, her patient list also included trans teenagers with the consent of their parents. But last year, Tennessee prohibited the prescription of certain medications to minors to treat the distress many trans people feel when their bodies do not align with their gender identity. Under the law, cisgender kids could keep receiving the meds: puberty blockers for those who start puberty too early, for instance, or testosterone or estrogen for teens who enter puberty late. But if the purpose was to treat gender dysphoria, those same medications were forbidden.
On Wednesday, the US Supreme Court will hear oral arguments in a landmark lawsuit challenging the Tennessee ban, brought by the Biden administration’s Department of Justice, Lacy, and three trans minors and their families. United States v. Skrmetti is one of the biggest cases of the term and the first major trans-rights case to be heard by the court since far-right lawmakers and policy groups launched a coordinated campaign inundating statehouses with hundreds of anti-trans bills a few years ago. Legal experts say the Skrmetti case could shape the landscape for trans rights for years to come, while testing how far the Court’s conservative supermajority is willing to extend its 2022 decision allowing states to ban abortion: Will the justices give states free reign to outlaw yet another form of healthcare?
“Before treatment, I hid,” one plaintiff, 15-year-old Ryan Roe, wrote in a declaration asking a federal judge to put the ban on hold. But with hormone therapy, “I am raising my hand in class again and participating in all aspects of school. I feel stronger—physically, mentally and emotionally. I feel so happy with myself and that makes me feel like I can do and be more.”
That changed, he added, when Tennessee lawmakers began debating the gender-affirming care ban. “Hopelessness creeped in again.”
The Skrmetti arguments are happening at a time of intense fear and vulnerability for the trans community. President-elect Donald Trump and his allies bet on transphobia to take back the White House and Congress, pouring millions into anti-trans campaign ads and vowing a broad crackdown on what Trump refers to as “left-wing gender insanity” (though the extent to which trans issues swayed the electorate remains unclear). Supported by groups like the Heritage Foundation, the think tank behind Project 2025, and Alliance Defending Freedom, a religious-right legal behemoth, states have made particular targets of trans young people, restricting their use of school bathrooms and locker rooms, their participation in sports, and discussion of LGBTQ-related topics in classrooms and libraries.
They have also targeted medical care, with nearly half of states outlawing gender-affirming treatments for people under 18, cutting off access for an estimated 118,300 trans teens. The bans have been enacted over the objections of virtually all leading US medical associations, which consider such treatments clinically appropriate. One study of almost 12,000 trans teenagers found that those who received hormone therapy reported lower rates of depression and suicidality compared to those who wanted but didn’t receive the treatment. When Tennessee’s ban took effect, Lacy says, “the biggest sense from the patients was despair—anger and despair.” Parents, meanwhile, were frustrated: “Why can I not make this decision for my child?”
“It is painful to even think about having to go back to the place I was in before I was able to come out and access the care that my doctors have prescribed for me,” one of the plaintiffs, a 15-year-old trans girl known as L.W., wrote in a declaration. She struggled to focus and connect with friends, and got sick when she had to use the boy’s bathroom at school.
L.W.’s mother, Samantha Williams, wrote in a declaration of her own that starting gender-affirming medical care had improved her daughter’s physical and mental health: “She has more confidence, she is fully present, and not only does she accept hugs, but she also gives hugs.” The Tennessee ban prompted Williams and her husband to consider moving their family away from relatives, work, and the community where their two children had grown up. “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,” Williams wrote.
LGBTQ-rights organizations have filed lawsuits over almost every gender-affirming care ban, with Skrmetti the first case to reach the Supreme Court. Now, justices are being asked to set the standard under which lower-court judges must evaluate whether laws like Tennessee’s violate the Equal Protection Clause of the US Constitution. The justices’ eventual decision could have implications not just for gender-affirming care bans, but for future anti-trans laws in statehouses and Congress. “It will tell the next administration whether it’s open season to continue with these attacks on trans young folks and transgender people more broadly,” says Jenny Pizer, chief legal officer of the LGBTQ civil rights organization Lambda Legal, “or whether there’s going to be some limits.”
There’s a potential wild card in the mix: When Trump takes office, his Department of Justice is likely to try to reverse the Biden administration’s position and withdraw the case. Pizer says that if that happens, there’s no telling how the Supreme Court would respond. They could agree to kill the case, deny the request, or push a decision off till next term. Or, they could let the federal government withdraw but allow the case to proceed, with only the Tennessee families and Lacy as plaintiffs.
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.
In fact, that’s what happened in the Middle District of Tennessee federal court, where the Skrmetti case started. “The Court acknowledges that the state feels strongly that the medical procedures banned by [the law] are harmful to minors,” District Judge Eli Richardson wrote last year in an order temporarily blocking the law. “The medical evidence on the record, however, indicates otherwise.”
Richardson’s decision wasn’t controversial at the time—every federal judge, including Trump appointees, who had looked at gender-affirming care bans up until that point had blocked them. But the Sixth Circuit Court of Appeals, which oversees Tennessee, went the other way, ruling 2 to 1 that the law did not discriminate based on sex, and thus it didn’t have to meet the higher level of scrutiny. (The judges also shot down the plaintiffs’ two other arguments—that anti-trans discrimination is unique and merits a closer look by the courts, and that the ban violates parents’ right to direct their children’s medical care.) In the 14 months since that decision, more courts have upheld gender-affirming care bans for minors, including in Ohio, Oklahoma, and Missouri.
If the Supreme Court agrees with the Sixth Circuit’s approach, courts going forward will apply the lowest level of scrutiny to gender-affirming care bans. The result, says Jess Braverman, legal director at the advocacy group Gender Justice, would be “like a rubber stamp.”
Casual Supreme Court observers would be forgiven for thinking that the question of whether anti-trans discrimination counts as sex discrimination has already been settled. In his majority opinion in the court’s last major trans-rights case, Bostock v. Clayton County in 2020, Justice Neil Gorsuch stated, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” But since that ruling, which involved a funeral home employee who was fired after transitioning, conservative lawyers and public officials have been trying to limit Bostock from being applied to situations beyond employment. The result has been an escalation of the legal battles over federal protections for trans people: Do existing sex-discrimination laws shield them at school? What about at the doctor’s office?
In arguing that Tennessee’s ban discriminates based on sex, 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.
Tennessee Attorney General Jonathan Skrmetti contends that the ban does not discriminate based on sex. Instead, he says, the law is a health care regulation that applies to everyone. “The law draws a line between minors seeking drugs for gender transition and minors seeking drugs for other medical purposes,” he argues in his brief. “Boys and girls fall on both sides of that line.”
In making that argument, Skrmetti repeatedly cited Dobbs v. Jackson Women’s Health Organization, the 2022 case that overturned the federal right to abortion. As Susan Rinkunas has noted over at The New Republic, the Tennessee AG is picking up on an aside by Justice Samuel Alito in the Dobbs ruling that Mississippi’s abortion ban didn’t violate the Equal Protection Clause because, according to the justice, the ban didn’t discriminate based on sex. To back up this assertion, Alito cited a Supreme Court ruling from 1974, Geduldig v. Aiello, which held that an insurance policy specifically excluding pregnancy-related coverage was not a form of sex discrimination, and applied to everyone. That ruling and a related decision were deemed so outrageous at the time that Congress swiftly enacted the Pregnancy Discrimination Act to override them.
Now, there is a risk that when the Supreme Court decides Skrmetti, it will apply the same reasoning from Geduldig and Alito’s sidenote in Dobbs: Even when laws restrict medical treatments that only matter for certain groups—like pregnant women, or trans people—those laws aren’t inherently discriminatory, because not every member of that group requires that type of care. “It’s kind of like our Supreme Court is a bunch of freshman philosophy students,” Braverman says. “It’s like they’re all asking, ‘Do we see the same color when we see yellow?’ Except lives are at stake.”
To Braverman, it’s no surprise that the arguments being used to defend bans on gender-affirming care are the same as those used to defend bans on abortion. “It’s the same people who are litigating it in court, and they’re making the same argument,” Braverman says. “If we treat what’s happening to transgender people as though it’s happening in a vacuum, everyone’s going to lose all their rights.” If the Supreme Court sides with Tennessee, for example, states might be emboldened to try banning other types of sex-specific healthcare, such as IVF or birth control, the ACLU warns.
“The real question in this case is, ‘Can powerful interest groups like the Heritage Foundation or Alliance Defending Freedom make up lies about your health care, and then use those lies to make your healthcare illegal?” Shawn Thomas Meerkamper, senior staff attorney at the Transgender Law Center, said in a briefing for journalists. “Because that’s what’s happening here.”
“One of the things that I think is so concerning about these laws is allowing legislators with no medical knowledge to restrict care for a specific diagnosis,” Lacy says from her office in Memphis. When the Tennessee ban came down, she tried to help her young patients find ways to keep up their existing prescriptions. Some families drove across the border to a clinic in Illinois or flew to other states where the medications were still legal. But for patients needing new prescriptions, her hands were tied.
She thinks about the families that never call her office in the first place—the “chilling effect” stopping parents from even considering medical care as an option after their children come out as trans. “I think when that law was passed, a lot of those parents just said, ‘Nope, can’t even deal with it,’” Lacy says. “Prior, they would say, ‘Well, let’s go in and let’s at least have the conversation.’”
Beyond the chilling effect, Lacy fears how laws like Tennessee’s worsen hostility toward transgender people. She worries about her own daughter, who came out as trans as a young adult, being judged based on how others perceive her gender identity. “There’s just a fear of the risk of existing in the world where the state is saying that you don’t have a right to exist,” Lacy says. “And that’s very, very frightening.”
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