The Uncertain Future of Gender-Affirming Care for Minors, Part 1: United States v. Skrmetti

In recent years, numerous states have enacted laws that restrict or prohibit access to GAC for minors. Tennessee’s Senate Bill (SB) 1, which is currently under review by the US Supreme Court in United States v. Skrmetti, is one such law. This alert, the first in a series exploring the legal uncertainties surrounding GAC for minors, examines Skrmetti and its implications for the rights of transgender youth and their families, as well as the legal and ethical obligations of the health care providers who serve them.

SB 1’s Prohibitions and Penalties

Enacted in 2023, SB 1 prohibits health care providers from performing or offering to perform certain medical procedures on an individual younger than 18 (1) to enable the individual to identify with, or live as, a gender identity inconsistent with the individual’s sex assigned at birth, or (2) to treat the individual’s discomfort or distress from such incongruence. Specifically, the law prohibits prescribing, administering, or dispensing any puberty blocker or hormone or performing surgery for such purposes. The law defines sex as the immutable characteristics of the reproductive system that define an individual as male or female, as determined by anatomy and genetics at birth.

SB 1 provides two exceptions to its prohibitions: one for medical procedures necessary to treat a minor’s congenital defect, precocious puberty, disease, or physical injury, excluding gender dysphoria and related conditions; and another for medical procedures that began before the law’s effective date of July 1, 2023, and concluded by March 31, 2024. The Tennessee Attorney General has primary enforcement authority, and relevant state regulatory agencies may discipline health care providers who violate the law. An injured minor or a non-consenting parent also may sue a health care provider for damages, costs, and attorney’s fees.

According to the legislative findings, SB 1 seeks to protect minors from physical and emotional harm, citing the risks of irreversible sterility, disease and illness, and adverse and sometimes fatal psychological consequences of GAC. The law also expresses the state’s interest in encouraging minors to appreciate their sex, particularly as they undergo puberty, and in preventing procedures that might encourage them to disdain their sex.

To date, more than two dozen states have enacted laws like SB 1 to regulate or restrict GAC for minors. While some of these laws are comparatively limited (e.g., banning only surgical care), others are more far reaching in their scope of prohibitions, penalties, and individuals impacted. This varied policy landscape reflects differing approaches to balancing parental rights, medical ethics, and the perceived need to protect minors.

SB 1’s Journey Through the Courts

Before SB 1 took effect, a group of transgender minors, their parents, and a physician who treats minors with gender dysphoria sued Tennessee Attorney General Jonathan Skrmetti and other state officials, challenging the constitutionality of the statute. They argued that SB 1 violates their constitutional rights to equal protection of the law and due process, and to nondiscrimination under the Affordable Care Act. In furtherance of the Biden Administration’s commitment to LGBTQ+ rights, the federal government intervened to assert that SB 1 violates the Equal Protection Clause of the 14th Amendment.

On July 7, 2023, a federal district court in Tennessee issued a statewide preliminary injunction that prevented enforcement of SB 1’s restrictions on puberty blockers and hormone therapies. The court held that SB 1 constitutes both an impermissible sex-based and transgender-based classification under the Equal Protection Clause. The law explicitly delineates its prohibitions based on sex, the court reasoned, as it requires a comparison between a minor’s sex at birth and the minor’s gender identity to determine eligibility for treatment. Additionally, the court found that SB 1 imposes disparate treatment based on transgender status, which inherently involves a sex-based classification. Consequently, the court applied an intermediate scrutiny standard of review and concluded that the state failed to provide sufficient evidence that the banned medical procedures posed significant risks, especially since the law permits the same procedures for other medical conditions.

The district court also held that SB 1 violates the plaintiffs’ rights to due process under the 14th Amendment by infringing parents’ fundamental right to direct their children’s medical care. Applying strict scrutiny, the court determined that the state failed to show that the law was the least restrictive means to achieve its purported goal of protecting minors, particularly given the broad consensus among major medical organizations that GAC is appropriate and beneficial when clinically indicated.

On appeal, the Sixth Circuit Court of Appeals stayed the district court’s preliminary injunction, allowing SB 1 to take effect. In contrast with the district court, the appellate court held that SB 1 is not an unconstitutional sex-based or transgender-based classification under the Equal Protection Clause. The statute applies equally to all minors, the court explained, regardless of their sex at birth, and does not prefer one sex over another. The court also noted that neither the Supreme Court nor the Sixth Circuit has recognized transgender status as a “quasi-suspect class” warranting heightened scrutiny. Therefore, the court applied rational basis review — the least stringent standard of constitutional review — and concluded that SB 1 was rationally related to the state’s legitimate interest in protecting minors from the potential risks of GAC.

The Sixth Circuit also rejected the plaintiffs’ due process claim. The court emphasized that the US Constitution does not guarantee an affirmative right to receive particular medical treatments, especially those that are experimental or have uncertain long-term effects. It further found that the state’s interest in safeguarding the health and wellbeing of minors justified the statute’s restrictions.

The Sixth Circuit’s opinion conflicts with the Eighth Circuit’s decision in Brandt v. Rutledge. In that case, the Eighth Circuit reached a contrary outcome with respect to an Arkansas law prohibiting GAC for minors, concluding that the law violated the Equal Protection Clause. This circuit split on the constitutionality of state GAC laws underscores the need for definitive resolution by the Supreme Court.

The Dynamics at the Supreme Court

Following the Sixth Circuit’s ruling, both the federal government and private plaintiffs in Skrmetti petitioned the Supreme Court for writ of certiorari. On June 24, 2024, the court granted the federal government’s petition, which is limited to whether SB 1 is unconstitutional under the Equal Protection Clause.

On December 4, 2024, the Supreme Court heard oral arguments. They focused on whether SB 1 discriminates on the basis of sex, whether transgender individuals are a quasi-suspect class, and whether SB 1 serves a legitimate or important state interest. The challengers argued that the statute is a sex classification on its face that violates the Equal Protection Clause, harming transgender adolescents who need GAC. The state officials contended that the law is a neutral regulation based on medical purpose, not sex, which protects minors from risky, unproven, and irreversible interventions.

The oral arguments revealed a range of perspectives and concerns among the Supreme Court’s nine justices. Some justices, including Justices Thomas and Alito, appeared to be skeptical of the challengers’ position that SB 1 classifies minors based on sex and the reliability of the medical evidence supporting GAC. Justices Sotomayor, Kagan, and Jackson, by contrast, appeared to agree with the challengers’ characterization of the statute as sex-based and the need for heightened scrutiny, and probed the purpose of and justification for the law. Other justices, including Chief Justice Robert and Justices Kavanaugh and Barrett, questioned the role of the courts in deciding issues of evolving medical practices, and the implications for this case in matters involving transgender individuals’ participation in women’s sports and access to bathrooms that align with their gender identity.

After President Trump took office, the Deputy Solicitor General notified the Supreme Court on February 7 that the US Department of Justice (DOJ) reconsidered the federal government’s position and determined that “the government’s previously stated views no longer represent the United States’ position.” That is, the DOJ has “now determined that SB1 does not deny equal protection on account of sex or any other characteristic.” Nevertheless, the Deputy Solicitor General urged the court not to dismiss the case, noting that the court’s decision is necessary to resolve many similar pending cases and that a live controversy still exists between the private plaintiffs and state officials.

A decision in Skrmetti is expected by this summer.

Key Takeaways

Skrmetti presents a critical and consequential question of constitutional law for transgender minors, their families, and health care providers specializing in GAC. The Supreme Court’s decision will determine whether SB 1 and similar laws will remain in effect or whether they will be struck down as unconstitutional deprivations of equal protection. The ruling will also impact other areas of law and policy that affect transgender individuals, such as education, employment, health care, and civil rights, including the enforceability of President Trump’s Executive Order 14187. That order, which provides that the federal government “will not fund, sponsor, promote, assist, or support the so-called ‘transition’ of a child from one sex to another,” is the subject of our next installment about the legal uncertainties facing GAC for minors.

Even if the Supreme Court upholds SB 1, the legal challenges to state GAC laws may not end there. Challengers to these laws potentially may assert a substantive due process claim based on parents’ right to direct the medical care of their children, which the Supreme Court did not agree to review. Other potential claims may include that Section 1557 of the Affordable Care Act, which prohibits sex-based discrimination in federally funded health care programs and activities, overrides state laws restricting GAC for minors.

Health care providers, particularly those who provide GAC to minors, should pay close attention to the outcome of this case, as it may affect their ability to offer GAC, their exposure to liability, and their compliance obligations. Providers should consult with legal counsel to ensure that they are informed of their rights and responsibilities and that they are prepared to respond to changes in the evolving legal landscape.