Supreme Court Upholds Tennessee’s Ban on Gender-Affirming Care for Minors, Risking Widespread Impacts on Access to Care for Transgender Individuals in America

An ideologically divided Supreme Court upheld Tennessee’s ban on gender-affirming care for minors on Wednesday in its opinion in United States v. Skrmetti, with the six conservative justices voting to uphold the ban and the three liberal justices dissenting.

The law at issue, Tennessee Senate Bill 1, prohibits any treatment 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.” Specifically, it prohibits medical providers from prescribing puberty-delaying medications, offering hormone therapy, or performing surgery to treat gender dysphoria, asserting that there are “less invasive approaches that are likely to result in better outcomes” to treat gender dysphoria. The law preserves a provider’s right to prescribe those treatments for purposes other than gender dysphoria, gender identity disorder, or gender incongruence. Over half of states have similar laws, ensuring that the decision will have widespread impact on transgender youth throughout America.

Three transgender minors, their parents, and a doctor challenged SB1, asserting that it violates the Equal Protection Clause of the Fourteenth Amendment, which prohibits any State from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” The District Court declared the law unconstitutional on its face, finding “that transgender individuals constitute a quasi-suspect class, that SB1 discriminates on the basis of sex and transgender status, and that SB1 was unlikely to survive intermediate scrutiny.” The Sixth Circuit reversed, holding that SB1 did not classify on the basis of sex because the law “regulates sex-transition treatments for all minors, regardless of sex” and “declined to recognize transgender individuals as a suspect class, finding that transgender individuals are neither politically powerless nor a discrete group defined by obvious, immutable, or distinguishing characteristics.”

The majority, in an opinion authored by Chief Justice Roberts, agreed with the Sixth Circuit. It found that SB1 did not classify on the basis of sex, rather, it classified on the basis of age and medical diagnosis. By doing so, it permitted the Court to apply a lower legal standard of review known as “rational basis” review. When a court reviews a law under the rational basis standard, great deference is given to the legislature and a statutory classification will be upheld “so long as there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” By determining that rational basis review applied, the Court thus only needed to find that there were conceivable facts that supported the Tennessee Legislature’s decision to apply SB1 based on age and medical diagnosis.

The Court found that SB1’s classification on the basis of age and medical diagnosis was supported by the Tennessee Legislature’s findings that administration of puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence can lead to irreversible sterility, increased risk of disease and illness, or adverse and sometimes fatal psychological consequences; that such treatments are often experimental in nature; that minors lack maturity to fully understand the impacts of these treatments, leading to regret later in life; and that “discordance between sex and gender” “can be resolved by less invasive approaches that are likely to result in better outcomes for the minor.” The Court reasoned that the age and diagnosis-based classifications “are plainly rationally related to these findings and the State’s objective of protecting minors’ health and welfare.” The majority rejected the plaintiffs’ argument that SB1 would not pass even rational basis review because Tennessee “failed to explain why it has banned access to puberty blockers and hormones ‘only where they would allow a transgender minor to identify or live in a way inconsistent with their sex[,]’” stating that it would not “second-guess the lines that SB1 draws.”

The majority concluded by acknowledging that the case “carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field.” But instead of protecting the ability of medical providers to evaluate those debates in the context of what is best for each patient, the Court left the question “to the people, their elected representatives, and the democratic process.”

In a scathing dissent authored by Justice Sotomayor, the dissenting justices found that “Tennessee’s law expressly classifies on the basis of sex and transgender status, so the Constitution and settled precedent require the Court to subject it to intermediate scrutiny[,]” a level of review that would have given allowed the Court to more critically review SB1. As outlined in the dissenting opinion, “[t]he level of constitutional scrutiny courts apply in reviewing a state action is enormously consequential.” A different standard of review certainly could have yielded a different result. By refusing “to call a spade a spade” and acknowledge that SB1 classified on the basis of sex, Justice Sotomayor wrote, the Court “here does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight,” and “authorizes, without second thought, untold harm to transgender children and the parents and families who love them.”

The effects of this decision remain to be seen, but, as Justice Sotomayor warned, it is likely that this decision paves the way for legislatures across the nation to enact laws further restricting care to transgender individuals, regardless of their wants, needs, or the opinions of their medical providers. The impact of this decision is currently being processed by health care providers across the nation who must now analyze whether the laws of their state allow them to continue providing medical and surgical care to transgender minors or individuals younger than the age of 19. Such analysis will also require consideration of whether third-party payors doing business in their state will continue to reimburse for care to transgender individuals.  Please note that at this time, President Trump’s Executive Order No. 14187 has been enjoined by federal judges in both Maryland and Washington.

As new developments arise, we will continue to update our Dobbs Decision Resource Center. In the meantime, please contact one of the lawyers in Shipman’s Health Law practice group if you have questions about this ever-changing legal landscape.