What to Expect as the Supreme Court Weighs in on Gender-Affirming Care for Trans Youth
For the first time, the justices will deliberate over a state’s authority to ban gender-affirming care for trans youth and whether such a ban constitutes sex discrimination.
By: Orion Rummler, Grace Panetta
This story was originally published by the 19th.
For the first time, the Supreme Court on Wednesday will consider a state’s authority to ban gender-affirming care for transgender youth and whether such a ban constitutes sex discrimination. Oral arguments for United States v. Skrmetti, a case focused on Tennessee’s right to ban such health care for minors, will give new insights into the justices’ thinking around gender-affirming care for trans youth — at a time when that care is banned across the country and is expected to come under fire during a second Trump administration.
The issue at the core of this case is whether banning a certain kind of health care for just one group — transgender youth — violates the 14th Amendment’s equal protection clause by discriminating based on sex. Laws that make sex-based classifications are subject to a more rigorous legal review to determine their constitutionality, and it would be difficult for Tennessee’s law to survive that scrutiny.
What will happen at the Supreme Court on Wednesday, and what’s next? The 19th has followed this case from the beginning and explains it here.
What will happen during oral arguments?
Oral arguments will last approximately one hour. The majority of that time will be dedicated to attorneys answering the justices’ questions, not rehashing each point of the case so far. Solicitor General Elizabeth Prelogar, representing the United States, will be allotted 15 minutes to make the best legal case and answer those questions, as will the attorneys for the ACLU and Lambda Legal — who are respondents in support of the trans adolescents and their families, who are challenging to ban. The Tennessee attorney general’s office will have 30 minutes to do the same.
Based on previously filed briefs, the solicitor general, alongside attorneys from the ACLU and Lambda Legal, will argue Wednesday that Tennnessee’s gender-affirming care ban for minors is sex discrimination — and that the Supreme Court should vacate the U.S. Court of Appeals for the 6th Circuit decision that allowed the ban to take hold.
On the opposing side, the office of Tennessee’s attorney general will argue that the Supreme Court should affirm the 6th Circuit decision, which held that the gender-affirming care ban has nothing to do with sex, and that it does not target trans people.
Columbia Law School’s Center for Gender and Sexuality Law expects the justices to push both parties to explain why Tennnessee’s gender-affirming care ban is or is not making a sex-based classification, and for the justices to disagree about the potential influence of abortion rights cases, like Dobbs v. Jackson Women’s Health Organization, on the case. The ways that the justices describe cisgender and transgender youth is also a point of interest for legal experts.
How did we get here?
This case began in April 2023 as L.W. v. Skrmetti, when the ACLU and Lambda Legal sued Tennessee — via the state’s attorney general Jonathan Skrmetti — to block the state’s health care ban. Attorneys filed the lawsuit on behalf of Samantha and Brian Williams of Nashville, and their teenage daughter, alongside two other families of transgender youth and Dr. Susan Lacy, a Memphis-based gynecologist who has provided gender-affirming care to adults and minors in the state.
In July 2023, a three-judge panel on the 6th Circuit allowed Tennessee’s ban to take effect, blocking the statewide preliminary injunction that had been put in place by U.S. District Judge Eli Richardson. After the full circuit court upheld the opinion, Lambda Legal and the ACLU appealed to the Supreme Court — and the Biden administration joined the case. The high court accepted the case at the end of its last term in June.
When will the Supreme Court make a decision? What could the outcomes be?
Following oral arguments, the justices will meet to decide the case and write the opinion of the court — typically accompanied by a dissenting opinion. That decision is expected to be handed down toward the very end of the court’s term in June 2025. Chase Strangio, co-director of the ACLU’s LGBT & HIV Project and a counsel of record in his case, outlined potential outcomes from the Supreme Court during a Monday press briefing.
“The outcome that we’re hoping for is that the Supreme Court recognizes that this is a law that draws distinctions based on sex, and therefore, under its long-standing precedent, the right standard of review is heightened scrutiny, and the court should therefore send it back down for the lower court to apply that standard,” Strangio said.
However, there is a chance that the justices could choose to get more involved, he added. Instead of sending this case back to the lower courts with a mandate to apply more rigorous legal scrutiny — one that Tennessee’s law is unlikely to survive — the justices could decide that the law is unconstitutional, or vice versa, on their own.
How could this case impact trans people more broadly?
The precedent set in this case will impact ongoing legal battles surrounding gender-affirming care bans across the country. Depending on the breadth of the justices’ final decision, and how far the court is willing to stretch its ruling that overturned federal abortion rights, this case has the potential to imperil transgender Americans’ ability to access health care, as well as the ability of all Americans to make decisions about their health.
“What the state of Tennessee is arguing is really dangerous for any person who has any sort of medical condition,” Ezra Young, a civil rights lawyer and constitutional scholar, previously told The 19th. Tennessee is dictating what medical treatments people should or should not be allowed to have, Young said; that goes well beyond states’ authority to regulate medicine, specifically because giving health care to trans people is not a public health concern.
While arguing that Tennessee’s gender-affirming care ban warrants heightened scrutiny because it discriminates against transgender people, Prelogar warned that the justice’s decision in this case could have large-scale consequences for transgender Americans. “Transgender individuals … are a discrete minority accounting for roughly one percent of the population. Their transgender status bears no relation to their ability to contribute to society, yet they face a wave of hostile legislation targeting them in all areas of life. And that wave will undoubtedly grow if this Court holds that laws discriminating against transgender Americans — which could include, for example, laws prohibiting them from adopting children or becoming licensed as teachers — warrant only the most deferential review under the Equal Protection Clause,” Prelogar wrote.
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