Where does the Supreme Court stand on gender-affirming care bans?

In April, when the Supreme Court allowed Idaho to enforce its ban on gender-affirming care for transgender youth, it did not address the constitutionality of such bans or debate political interventions in medical care. But as one liberal justice noted, the high court will “almost certainly have a chance to consider the entirety of this case soon.”

The Supreme Court has yet to take up a case that answers the question of whether statewide bans on gender-affirming care are unconstitutional. That question, which would have far-reaching implications for trans youth and their families across the country, is at the center of a different legal battle in Tennessee the high court may choose to hear this year. Attorneys working for LGBTQ+ rights have asked the Supreme Court to determine whether the state’s trans care ban violates the 14th Amendment’s equal protection and due process clauses.

Tennessee’s ban on the use of puberty blockers and hormone treatment for transgender minors took effect in July 2023, after a three-judge panel on the 6th U.S. Circuit Court of Appeals made a preliminary decision in the state’s favor. Transgender youth already receiving gender-affirming care were allowed to continue it until this March — but physicians began weaning trans adolescents off of their hormone treatments last year, in order to avoid suddenly stopping care.

Attorneys with the ACLU and Lambda Legal, alongside other legal partners, filed suit later that year, and the case, L.W. v. Skrmetti, rose to the Supreme Court.

Attorneys working for LGBTQ+ rights see the potential for a Supreme Court intervention in this case as a “make or break moment.” If the conservative-majority high court agrees to take up the Tennessee lawsuit, it will either give transgender youth and their families relief and alleviate some of the hostile political pressure against trans people in the United States — or it will pave the way for more attacks and greenlight discriminatory law.

The justices have not yet decided if they will hear the case. Since February, they have repeatedly rescheduled the meeting where they would make that decision. If the Supreme Court does take up the question of whether Tennnessee’s gender-affirming care ban is unconstitutional, it would not come before the high court — at the earliest — until the next term begins in October. That’s because oral arguments for this term ended on April 30.

“We don’t have a good sense of what they’re doing here, but it does feel like even next term might be ambitious,” said Sruti Swaminathan, a Lambda Legal staff attorney focused on legal issues affecting LGBTQ+ youth, who has been working closely on the Tennessee case.

Attorneys working for LGBTQ+ rights petitioned the Supreme Court to intervene in the Skrmetti case after the full 6th Circuit ruled in September 2023 that gender-affirming care bans for trans youth in Kentucky and Tennessee must remain in place as lawsuits in those states continue.

Citing the Supreme Court case that ended the federal right to an abortion, Chief Judge Jeffrey Sutton on the 6th Circuit argued that gender-affirming care bans do not discriminate on the basis of sex. If laws restricting abortion don’t trigger heightened scrutiny — a more rigorous legal review to determine whether a law is constitutional or not — then laws restricting gender-affirming care don’t either, he wrote in the court’s decision. This line of reasoning is part of Sutton’s stance that attorneys working for LGBTQ+ rights have not made a valid constitutional challenge against gender-affirming care bans in Tennessee and Kentucky.

Swaminathan and other attorneys representing trans youth and their families believe that the high court has an obligation to weigh in to resolve conflicts between circuit courts. In their petition, they argue that the 6th Circuit is in conflict with the 8th Circuit on this question of constitutionality — in 2022, the 8th Circuit upheld a lower court order that found Arkansas’ gender-affirming care ban likely violates the 14th Amendment and discriminates on the basis of sex. LGBTQ+ rights attorneys also argue that the 6th Circuit has deepened a broader split among circuit courts on whether discrimination against transgender people triggers heightened scrutiny.

The high court is more likely to take up a case when two or more circuit courts have a split or difference in opinion. “That gave us confidence that they may consider taking our case,” Swaminathan said.

The Supreme Court has declined to intervene on issues ranging from transgender bathroom access and school sports to whether trans people are protected under disability law. This inaction has granted wins to LGBTQ+ advocates, as the high court has repeatedly refused to disturb lower court decisions, particularly from the 4th U.S. Circuit Court of Appeals. The 4th Circuit issued two rulings last month in favor of trans rights and became the first federal appeals court to rule that state health care plans must cover gender-affirming care. With regard to that case, West Virginia plans to — and would need to — ask the Supreme Court to intercede if they want that ruling overturned.

This makes the justice’s intervention in Idaho all the more unique.

On April 15, the high court allowed Idaho to enforce its ban on trans health care against all minors in the state, except for plaintiffs in the ongoing lawsuit against the ban. The state’s law also makes it a felony for medical providers to provide gender-affirming care for trans youth.

The Supreme Court’s decision focused on whether lower courts have the authority to issue broad injunctions that keep laws from taking effect across an entire state. That was the question that brought this case to the high court; Idaho’s gender-affirming care ban was blocked from taking effect by a federal district court, so the state took that dispute all the way to the top.

Federal judges across the country have repeatedly blocked anti-LGBTQ+ laws from taking effect by granting statewide preliminary injunctions, which halt enforcement until lawsuits play out. States have responded by appealing those injunctions to circuit courts, several with success. Now, the majority-conservative Supreme Court has expressed its disapproval of such broad injunctions, with conservative justices arguing that courts should only halt laws from taking effect against individual plaintiffs, not the residents of an entire state.

Although the justices have not indicated their beliefs on transgender health care restrictions, including in their order allowing Idaho to enforce its gender-affirming care ban, a recent exchange during oral arguments for a case on emergency abortion access shows that the issue is on justices’ minds.

Supreme Court Justices Amy Coney Barrett and Neil Gorsuch linked state abortion bans with bans on gender-affirming care when asking clarifying questions about the case, which deals with whether federal law can mandate that hospitals that accept Medicare funding provide abortions in medical emergencies.

Enforcement of the Emergency Medical Treatment and Labor Act, known as EMTALA, is at the center of the case. It was passed in 1986 through the authority of Congress’ Spending Clause,  which specifies how Congress can spend and allocate federal funds to states. 

During oral arguments, Barrett asked whether, in another presidential administration, it would be possible for Congress to use its spending power to forbid any hospital using federal funds from performing abortions or “gender reassignment surgery.” She pointed out the potential for such a rule to go “back and forth through Spending Clause litigation in ways that would be unusual.”

Solicitor General Elizabeth Prelogar, who represents the United States in front of the high court, responded that she believes that Congress has broad power to implement such conditions under the clause, as long as it follows the appropriate rules.

Gorsuch also connected gender-affirming care bans with abortion bans in his deliberation on the reach of the Spending Clause, and in his questioning of how the justices should reconcile that potential reach with EMTALA’s requirement that the federal government not overextend its powers when it comes to medicine.

“Could the federal government essentially regulate the practice of medicine of the states through the Spending Clause? The answer, I think, is yes, Congress could prohibit gender reassignment surgeries across the nation, it could ban abortion across the nation, through the use of its Spending Clause authority, right?” he asked Prelogar.

“I think that that would be valid legislation,” Prelogar responded.

In their order allowing Idaho to enforce its gender-affirming care ban, Gorsuch, joined by Justices Samuel Alito and Clarence Thomas, warned that “lower courts would be wise to take heed” of the high court’s refusal to allow Idaho’s ban to be blocked across the state.

Chase Strangio, the attorney of record in both the Idaho and Tennessee cases, and deputy director for transgender justice at the ACLU’s LGBTQ & HIV Project, took to social media to clarify the narrow scope of the Supreme Court’s order. It is not about transgender people and is not about whether states can ban gender-affirming care for minors, Strangio said on Instagram. The only question before the court was about how far the injunction in Idaho reaches, he said, and their order means that trans youth across the state will be kept from health care.

“This is a devastating material impact in terms of access to care more broadly in Idaho, but it is not the level of devastation that some people are suggesting, that the court has now signaled that it is constitutional for states to ban this care. That remains an ongoing subject of litigation across the country,” he said in an Instagram video.

Meanwhile, in Idaho, trans youth and their families were faced with a sudden change in whether they can access care like puberty blockers and hormone therapy.

Jenna Damron, an advocacy fellow with the ACLU based in Boise, Idaho, said that both trans adults and youth in the state are afraid about the future of their health care. “Overnight, access to these medications has now changed because of this Supreme Court ruling and that has sent the community into a sense of fear and panic and grief,” she said.