Is the U.S. Supreme Court Skeptical of Limiting State Regulation of Gender-Affirming Care? (Court Report)

On December 4, 2024, oral arguments were held in the long-awaited U.S. Supreme Court case of United States v. Skrmetti which challenged the constitutionality of Tennessee’s 2023 law banning medical interventions commonly known as “gender-affirming” care. The case was brought by three transgender teens and their families, as well as a doctor who provides gender-affirming care in Tennessee who argued that the law violated the 14th Amendment’s Equal Protection Clause. Additionally, the U.S. Department of Justice was permitted to join the plaintiffs in the case due to a federal law permitting such action in equal protection cases. The U.S. District Court for the Middle District of Tennessee granted a preliminary injunction finding the law “facially unconstitutional.” However, the Sixth Circuit Appellate Court reversed this decision, determining that the state was likely to succeed in the case, and therefore was entitled to enforce the law during litigation. The U.S. Supreme Court accepted the case in June 2024, almost a year and a half after the law was initially enacted.

In general, discriminatory laws need only be rationally related to a legitimate state interest to pass muster, however, certain classes of individuals are granted the much greater protection of strict scrutiny, which requires that the discriminatory law is justified by a compelling state interest; it is narrowly tailored to achieve this interest; and it is the least restrictive means to achieve the interest. Sex is one of those classes which are afforded strict scrutiny. In Skrmetti, the plaintiffs’ case hinges on the premise that the 2023 ban on gender-affirming care is not only a violation of the Equal Protection Clause of the Constitution, but, most importantly, constitutes sexual discrimination, and therefore, afforded the protections of strict scrutiny. 

Throughout the oral arguments, all three of the Court’s liberal Justices seemed sympathetic to the plaintiff’s arguments, however, the Court’s conservative justices showed extreme skepticism. Additionally, the conservative justices questioned whether or not the courts were the appropriate venue to evaluate such disputed, complex, and evolving medical treatments. They focused on a variety of reports disputing the medical necessity of gender-affirming care and pointed towards the stance of specific European nations regarding the practices. 

Based on the tone of oral arguments, it seems likely that the Court will uphold Tennessee’s ban on gender-affirming care for minors. The outcome of this case will fortify gender-affirming care bans across the country and force care advocates to seek out new legal arguments to counteract the policies. It seems likely that those arguments will take on a parental rights focus, and the country will have to wait for a case to work its way back to the U.S. Supreme Court to receive a final verdict on gender-affirming care bans. However, we won’t know the final outcome of the case until the Court releases its decision next year. Often, controversial decisions are held back until the end of the Court’s term in June. 

Monthly Court Report

State high courts issue thousands of opinions each year, and these decisions can have major impacts on public policy. To help you keep track of consequential judicial decisions and their impact on state policy, MultiState publishes the Monthly Court Report, which offers a monthly recap of notable state high court decisions to provide a more dynamic picture of public policy trends.