U.S. Supreme Court upholds ban on gender-affirming care for transgender minors

In a 6 to 3 decision led by Chief Justice John Roberts, the U.S. Supreme Court ruled that states may ban gender dysphoria treatment for minors, even when their parents want it for their child.

Roberts said the specific law in question —SB 1 from Tennessee—does not discriminate on the basis of sex because minors are prohibited from receiving gender dysphoria treatment "regardless of the minor's sex."

The majority said it rejects the plaintiffs' argument that SB1 "enforces a government preference that people conform to expectations about their sex."

"SB1 does not exclude any individual from medical treatments on the basis of transgender status. Rather, it removes one set of diagnoses —gender dysphoria, gender identity disorder, and gender incongruence— from the range of treatable conditions."

U.S. v. Skrmetti originated with one transgender girl and two transgender boys, whose parents filed suit after the Tennessee legislature banned medical treatment for young people diagnosed with gender dysphoria. (Gender dysphoria is defined by the medical profession as clinically significant discomfort that one's sexual identity is different than one's documented gender at birth.) A Memphis doctor, Susan Lacy, joined the lawsuit, which was successful at the district court. There, the judge ruled that the ban enables "disparate treatment on the basis of sex." But the Sixth Circuit U.S. Court of Appeals disagreed.

Both the transgender youth and the U.S. government appealed to the Supreme Court. The court accepted the appeal but posed the question with language many might read as putting a thumb on the scales of justice: Does "Tennessee Senate Bill 1 (SB l), 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'" violates the Equal Protection Clause of the Fourteenth Amendment.

The court heard arguments in December, during the last month of President Biden's administration. Solicitor General Elizabeth Prelogar, who spoke on behalf of the Biden administration's opposition to Tennessee's law, said it discriminates on the basis of sex, in violation of the equal protection clause. She also argued the court should scrutinize the law at a heightened level (greater than the easy requirement of simple rational basis). And she urged the Supreme Court to send the case back to the Sixth Circuit U.S. Court of Appeals with instructions to examine the ban with that heightened level of scrutiny.

In February, the Department of Justice under President Trump wrote letter to the court, saying "The Department has now determined that SB1 does not deny equal protection on account of sex or any other characteristic. Accordingly, the new Administration would not have intervened to challenge SB1." The letter carried the name of Curtis Gannon, deputy solicitor general.

Wednesday's 6 to 3 vote broke down in the usual split: Dissenting justices were Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.

Leading the dissent, Justice Sotomayor said the Tennessee "law conditions the availability of medications on a patient's sex.

"By retreating from meaningful judicial review exactly where it matters most," wrote Sotomayor, "the Court abandons transgender children and their families to political whims.

"In sadness, I dissent."

"Today's ruling is a devastating loss for transgender people, our families, and everyone who cares about the Constitution," said Chase Strangio, Co-Director of the ACLU's LGBTQ & HIV Project. "Though this is a painful setback, it does not mean that transgender people and our allies are left with no options to defend our freedom, our health care, or our lives. The Court left undisturbed Supreme Court and lower court precedent that other examples of discrimination against transgender people are unlawful.  We are as determined as ever to fight for the dignity and equality of every transgender person and we will continue to do so with defiant strength, a restless resolve, and a lasting commitment to our families, our communities, and the freedom we all deserve."

 "This is a heartbreaking ruling, making it more difficult for transgender youth to escape the danger and trauma of being denied their ability to live and thrive," said Sasha Buchert, Counsel and Director of the Nonbinary and Transgender Rights Project at Lambda Legal. "But we will continue to fight fiercely to protect them. Make no mistake, gender-affirming care is often life-saving care, and all major medical associations have determined it to be safe, appropriate, and effective. This is a sad day, and the implications will reverberate for years and across the country, but it does not shake our resolve to continue fighting."

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