Supreme Court to consider gender affirming care laws for minors

One of the highest profile cases in the Supreme Court’s upcoming term could set a precedent over the ability of several states to define laws that provide or deny gender affirming health care to teenagers.

The issue has not been considered in the past by the Court. But United States v. Skrmetti has all the hallmarks of a landmark case, as the justices will decide if a Tennessee law along with a law from Kentucky limiting such care violate the 14th Amendment’s Equal Protection Clause.

In June 2024, the Court accepted an appeal from Solicitor General Elizabeth B. Prelogar on the following question: “Whether Tennessee Senate Bill 1 (SB1), which prohibits all medical treatments intended to allow ‘a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex’ or to treat ‘purported discomfort or distress from a discordance between the minor's sex and asserted identity,’ Tenn. Code Ann. § 68-33-103(a)(1), violates the Equal Protection Clause of the Fourteenth Amendment.”

The United States filed the appeal under Title IX of the Civil Rights Act, which allows it to intervene in a private equal-protection suit of “general public importance involving alleged denials of equal protection of the laws on account of race, color, religion, sex, or national origin.”

Tennessee enacted SB1 in March 2023. The law prohibits health care providers from “[p]rescribing, administering, or dispensing any puberty blocker or hormone” to minors who identity with a gender other than their sex assigned at birth. The law made exceptions if a “medical procedure is to treat a minor's congenital defect, precocious puberty, disease, or physical injury,” and for procedures that began prior to act and concluded on or before March 31, 2024.

Three transgender adolescents living in Tennessee, their parents, and a Tennessee doctor treating adolescents with gender dysphoria sued the state, claiming violations of the Constitution’s Equal Protection Clause. The United States then joined the case under Title IX. The U.S. District Court for the Middle District of Tennessee granted a temporary injunction.

A Question of Heightened Scrutiny

The district court said the law likely violated the Equal Protection Clause and also the parents’ rights to make health decisions about their children. The court said the lawsuit failed under an intermediate or heightened scrutiny test.

A heightened scrutiny test is used by courts when considering certain forms of discrimination, and it requires that the government prove its actions furthered an important government interest by means that were substantially related to that interest. The district court said that the state of Tennessee did not prove that SB1 was related to an important state interest. 

The Sixth Circuit Court of Appeals considered the appeal along with the case from Kentucky about its law restricting gender affirming care, and reversed the injunction. In September 2023, Chief Circuit Judge Jeffrey Sutton, joined by Judge Amul Thapar, ruled in a 2-1 decision that the Kentucky and Tennessee laws treated people “evenhandedly,” did not treat people differently due to sex, and did not trigger a heightened scrutiny test. Sutton added “[N]o such form of discrimination occurs in either law. The laws regulate sex-transition treatments for all minors, regardless of sex. Under each law, no minor may receive puberty blockers or hormones or surgery in order to transition from one sex to another.”

Sutton also rejected a precedent set in Bostock v. Clayton County (2020), when the Supreme Court decided that under Title VII a person could not lose employment due to gender identity or sexual orientation. “In Bostock, the employers fired adult employees because their behavior did not match stereotypes of how adult men or women dress or behave,” Sutton argued. He concluded that such stereotypes did not apply in the Tennessee and Kentucky cases since the state laws applied to all children who are under 17 years of age.

In her dissent, Circuit Judge Helene White said the state laws violated the 14th Amendment’s Equal Protection and Due Process clauses. “The laws . . . deprive the parents—those whom we otherwise recognize as best suited to further their minor children’s interests—of their right to make medical decisions affecting their children in conjunction with their children and medical practitioners,” White concluded. She also argued that the statutes triggered heightened scrutiny and failed because they discriminated on the basis of sex.

Prelogar made a similar argument in her petition to the Supreme Court: “SB1 warrants heightened scrutiny both because it relies on sex-based classifications and because it discriminates based on transgender status, which satisfies all of this Court’s traditional criteria for recognizing a suspect classification.” The Solicitor General agreed with the district court that Tennessee’s law failed the heightened security test.

In a reply brief before the Court took the case, the state of Tennessee pointed to perceived risks related to medical interventions. “It is undisputed that these hormonal and surgical interventions carry serious and potentially irreversible side effects, including infertility, diminished bone density, sexual dysfunction, cardiovascular disease, and cancer,” it argued. “Tennessee, like many other States, acted to ensure that minors do not receive these treatments until they can fully understand the lifelong consequences or until the science is developed to the point that Tennessee might take a different view of their efficacy.”

The state agreed with Judge Sutton’s opinion that the Constitution was “neutral” on establishing “legislative regulations of new and potentially irreversible medical treatments for minors.” It also believed that the Constitution delegated such issues to the legislature’s judgment. “Concluding otherwise would violate ‘the most deeply rooted tradition in this country … that we look to democracy to answer pioneering public-policy questions,’” the brief said.

For now, United States v. Skrmetti is not yet scheduled for arguments and numerous briefs are yet to be filed. But given the questions in front of the Court, the case will draw a good deal of attention as it seeks to further define the Bostock decision, and the rights of people based on their gender identity.

Scott Bomboy is the editor in chief of the National Constitution Center.