BACKGROUNDER: How the First Supreme Court Case on Transgender Medical Care Could Impact the State of Healthcare and LGBTQ+ Rights Across the Country

On December 4th, 2024, the Supreme Court will hear oral arguments for US v. Skrmetti, the first ever case addressing the constitutionality of bans on medical care for transgender youth. This case challenges Tennessee's law (Senate Bill 1), that bans affirming healthcare treatments for transgender youth in the state and could determine whether the law violates the Equal Protection Clause of the U.S. Constitution. With healthcare bans for transgender youth also enacted in 25 other states, the consequences could be far-reaching for the transgender community and the state of healthcare.

Human Rights Campaign President Kelley Robinson released the following statement ahead of oral arguments:

"At its heart, this case is about human dignity. Transgender youth are not political pawns-they are children who deserve compassion, medical care and the same opportunities to thrive as all youth, and their parents deserve the same rights to support their needs as all other parents. No politician should ever be able to interfere in the decisions best made by families and doctors-but that's exactly what these discriminatory bans allow.

Every child deserves access to healthcare that supports their well-being. Nearly every major medical organization agrees: gender affirming care isn't a political statement; it's healthcare that can prevent depression, reduce suicide risk, and help children thrive. This is about healthcare, plain and simple."

"The Supreme Court now faces a fundamental question: Will we honor our constitutional promise of equal protection, or will we allow discriminatory laws to systematically marginalize young people?"

The History of the Case:

Senate Bill 1, Tennessee legislation that bans affirming care for transgender youth regardless of parental consent and medical recommendation, was signed into law in March 2023. In April 2023, the American Civil Liberties Union, the ACLU of Tennessee, Lambda Legal, and Akin Gump Strauss Hauer & Feld LLP sued the State of Tennessee on behalf of families and transgender youth to block the state's ban. The United States then joined the case in opposition to the state ban. A district court judge later determined that the plaintiffs were likely to succeed on their constitutional claims and issued a preliminary injunction, blocking the law from going into effect.

The district court decision was later appealed up to the 6th Circuit, where a divided panel reversed the lower court's decision. The plaintiffs filed petitions for a Writ of Certiorari asking the U.S. Supreme Court to review the 6th Circuit's reversal. In June 2024, the Supreme Court agreed to take up the United States' petition. This is the first time the Court will hear a case involving access to transgender medical care [NOTE: this case considers a wide range of gender affirming medical care, but surgeries are not at issue in this case]. Oral arguments will be heard on December 4th this year on whether the Tennessee ban violates the Equal Protection clause of the constitution.

The Impact of Healthcare Bans on Trans Youth:

As reported by The Williams Institute, there are more than 300,000 high school-aged (ages 13-17) transgender youth in the United States today, many of whom need gender-affirming care.

• As of August 2024, 39.4% or 118,300 trans youth aged 13-17 are living in the 26 states that have passed bans on gender-affirming care.
• This includes 2,300 youth living in the two states-Arkansas and Montana-where bans are currently on hold or blocked from enforcement through court orders.
• If Tennessee's ban is determined constitutional, these numbers can be expected to increase.

According to analysis by HRC, previous studies have found that transgender and non-binary youth who are able to receive hormonal treatments report positive psychosocial impacts, including increased well-being and decreased depression.

• Other recent studies have found that receipt of puberty blockers can dramatically reduce risk of suicidality - in some cases by over 70% - among transgender youth, compared to those who were unable to access desired treatment.

A study by Stanford University School of Medicine found that positive mental health outcomes were higher for transgender people who accessed gender affirming hormone treatment as teenagers versus those who accessed it as adults. A third study, published in the New England Journal of Medicine, found that, two years after initiating gender affirming hormone treatment, transgender youth reported higher levels of life satisfaction and positive affect, and lower levels of gender dysphoria, depression and anxiety.

State Legislative State of Play:

Transgender people of all ages have seen an unprecedented number of attacks limiting their freedoms and positioning them at the center of hateful political discourse. Bans restricting medication treatment for gender dysphoria for transgender youth are part of a larger extremist campaign to villainize transgender people, push them back in the closet and remove them from public life. In the last two years:

• More than 400 anti-transgender bills have been introduced in state legislatures across the country.
• While the majority of these bills were blocked, 60 passed and became law, limiting the rights of transgender people throughout the country. Of those bills that were signed into law, 28 banned or restricted healthcare access for transgender people.

As of today, 26 states have passed laws banning some type of gender-affirming care for minors. Twenty-four states, including Tennessee, ban puberty blockers and/or hormone therapy treatments, removing access to best practice, medically necessary care for transgender youth. [In two states, Arizona and New Hampshire, the bans only apply to some extremely rare types of care for minors.]

• 22 bans on access to hormone treatment are in effect, with bans in Arkansas and Montana currently blocked. Some of these laws threaten investigation and even imprisonment for parents and/or medical professionals who help children access the healthcare they need.

Potential Impact of the Case:

In this case, the Supreme court will determine what kind of legal review gender identity based discrimination should receive:

• Rational review analysis (under which states are more likely to win), or
• Intermediate review analysis that sex discrimination receives (under which people impacted by discriminatory laws or policies are more likely to win).

Additionally, the Supreme Court will likely decide whether Tennessee's ban on transgender healthcare violates the Equal Protection Clause of the Constitution.

If the Supreme Court rules that gender identity discrimination must be analyzed under intermediate scrutiny AND decides that Tennessee's law is unconstitutional, then similar bans enacted by other states are also unconstitutional and states cannot prohibit healthcare for transgender people.

If the Supreme Court rules that gender identity discrimination must be analyzed under intermediate scrutiny, and sends the Tennessee ban back to the 6th circuit, the Court will have sent a strong message to the lower courts that any action by a government that treats transgender people differently from non-transgender people - including laws and policies - will rarely be permissible. It could also hold that laws prohibiting healthcare for transgender minors violates the equal protection clause.

• Moving forward, it will be easier for LGBTQ+ advocates to win cases challenging laws that discriminate against transgender people, and LGBTQ+ people too.

If the Supreme Court reverses the 6th Circuit by finding that gender identity must be reviewed under an intermediate review analysis rather than rational review, BUT holds that laws prohibiting healthcare for transgender minors do not violate the equal protection clause even under a stricter standard, bans on gender affirming care for minors will remain in place. States with bans may strengthen those bans and states with no bans may adopt bans in the future.

• However, while the Court will have found that healthcare for transgender minors is one of the rare circumstances in which the government has an important interest in acting, it will have made it unconstitutional in most cases for states and the federal government to adopt bans on gender-affirming care for adults and to pass other laws that discriminate against transgender people.

If the Supreme Court affirms the 6th Circuit decision that gender identity is correctly reviewed under a rational basis analysis, and holds that laws prohibiting healthcare for transgender minors do not violate the equal protection clause, then bans on gender affirming care for minors will remain in place. States with bans may strengthen those bans and states with no bans may adopt bans in the future.

• Moving forward, states will be further emboldened to treat transgender people differently from non-transgender people.

The Human Rights Campaign is asking the court to stand against this clearly discriminatory legislation and to uphold equal protection for all people.

The Human Rights Campaign is America's largest civil rights organization working to achieve equality for lesbian, gay, bisexual, transgender and queer people. HRC envisions a world where LGBTQ+ people are embraced as full members of society at home, at work and in every community.

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