The U.S. Supreme Court on Wednesday, June 18, issued a decision in U.S. v. Skrmetti, a closely watched case concerning the constitutionality of state-level bans on health care for transgender people. The ruling upholds such bans, allowing states to prohibit medical treatments for transgender people, even when those same treatments remain legal for people who are not transgender.
The Court agreed with parts of the U.S. Court of Appeals for the Sixth Circuit ’s opinion that allowed a ban in Tennessee to take effect, holding that Tennessee’s SB1—which bans transgender youth from accessing hormone therapy and medications for the treatment of gender dysphoria—does not draw a sex-based (or a trans status-based) line and thus only necessitates deferential review by the courts. That means SB1 can remain in place.
The decision is based on the record in and context of the Tennessee case and therefore does not extend to other cases concerning discrimination based on transgender status. The Court left in place other Supreme Court and lower court precedent that demonstrates that other examples of discrimination against transgender people are unlawful.
“Today, the Supreme Court took the place of parents and doctors and stripped away their ability to make private, lifesaving decisions for their children,” said Sarah Kate Ellis, President and CEO of GLAAD. “This ruling is a chilling step toward unchecked government overreach, intruding on the most personal aspects of our private lives. All families are now less safe and left vulnerable to politicians and a Court that has abandoned its duty to protect personal liberties. Every family deserves the freedom to make the medical decisions that help their children live, thrive, and be well.”
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Lucas Cameron-Vaughn, Senior Staff Attorney at the ACLU of Tennessee said, “Today the Supreme Court told Tennessee transgender youth and their families that they cannot access healthcare that is vitally important for a successful life. This ruling creates a class of people who politicians believe deserve healthcare, and a class of people who do not. We will continue to stand with transgender people in Tennessee and are committed to realizing a world where all people belong, are valued, and can access the necessary healthcare they need.”
“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.”
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“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.”
Deeply flawed reporting was instrumental in bringing about the conditions for the Skrmetti ruling. Chris Geidner at Law Dork writes that, “The Atlantic put its ‘just asking questions’ story about trans kids on their cover in the summer of 2018. Seeing smoke, The New York Times began looking for fire with a series of longform stories targeting trans youth care. They weren’t alone…. In the end, so-called ‘thought leader’ publications played key roles in bringing forth this week, giving oxygen to extremists and creating a story.”
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The majority opinion leaned heavily on biased and inaccurate reporting from The New York Times. The Court cited reporting by Stephen Castle, Megan Twohey, Christina Jewett, Roni Caryn Rabin, Teddy Rosenbluth, Noah Weiland, an opinion piece by Pamela Paul, and three articles by Azeen Ghorayshi, that have promoted skepticism and fear around transgender health care. These pieces platform narratives of regret and uncertainty without adequate context or balance from the overwhelming majority of medical associations that support transgender health care. These articles frequently reflect fringe views, amplify detransition stories, or prioritize the views of anti-transgender activists and organizations over the voices of transgender people and their families personally affected by such reporting or by legislation or judicial decisions. In addition, Justice Thomas’ published concurrence also cited biased, inaccurate Times coverage.
The Court also gave credence to the appearance of scientific controversy and international “reassessment,” to argue that states should have the power to ban access. The World Professional Association for Transgender Health (WPATH), which advocates for access to transgender health care, was baselessly accused of being politically compromised. The Court cited reports from Finland’s Council for Choices in Health Care, England’s National Institute for Health and Care Excellence, and NHS England, which all encouraged caution and clinical decision-making, but not a blanket rejection of treatment. The ruling omitted the consensus from leading U.S. medical bodies, including the American Medical Association, American Academy of Pediatrics, and Endocrine Society, all of which oppose such bans, and all of which submitted amicus briefs noting that transgender health care is evidence-based and widely supported in the medical community, and that denying access can cause severe harm.
Justice Sonia Sotomayor criticized the Roberts Court’s decision, writing in her dissent that the court had retreated from “meaningful judicial review exactly where it matters most,” adding that “the court abandons transgender children and their families to political whims.”
U.S. v. Skrmetti is a challenge brought by three transgender adolescents, their families, and a Memphis-based medical provider against a Tennessee law banning gender-affirming hormone therapies for transgender people under 18. The plaintiffs contended that Tennessee’s law banning transgender health care for youth violated the Constitution. The U.S. government, under President Joe Biden, joined the case in support of the plaintiffs, arguing the law was unconstitutional under the 14th Amendment’s Equal Protection Clause. The government reversed its position after President Donald Trump took office.
Additional background:
- No court in the U.S. that has applied heightened scrutiny to a categorical ban on health care for transgender people has found that such a ban survives the test. Multiple judges found that bans were unconstitutional and that the states’ “expert” witnesses lacked credibility and expertise to support a ban.
- Every major medical association supports health care for transgender people and youth. Statements from 30+ groups here.
- 24 states continue to allow best practice health care for transgender people and youth without restriction. Some states have moved to legalize protections for people seeking health care including those from states with bans. Additional guidance here.
- Hormone therapy medication and medication to pause the effects of puberty have been used safely for decades, and is widely used by cisgender (non-transgender) people.
- More than 100,000 transgender people under 18 now live in a state with a ban on their health care.
- The case was led by the American Civil Liberties Union (ACLU) and Lambda Legal.
- GLAAD fact sheet with background and relevant resources is available here.
- Background on groups fighting to ban transgender health care include longtime opponents of LGBTQ equality, including the Alliance Defending Freedom, which fought and lost the fight for marriage equality, as well as the right to legalize discrimination at work, legalize discrimination against couples looking to adopt, and has worked to restrict reproductive health care, miscarriage care, and abortion medication.
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