Gender-affirming care for transgender youth in the United States has been a prevalent topic in recent years. States are working to either ban, restrict, or protect gender affirming care for minors. United States v. Skrmetti, a pending Supreme Court case, is one of many debates over whether legislation that bans or restricts gender-affirming care violates the Equal Protection Clause of the Fourteenth Amendment.
Gender-affirming care is defined as “all medical treatments 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.’” The most common forms of gender-affirming care are puberty blockers, hormones, and reconstructive surgeries.
In 2021, Arkansas was the first state to pass legislation restricting access to gender-affirming care, and many states have followed in Arkansas’ footsteps. As of today, 26 states have passed similar laws restricting gender-affirming care, and 24 states professionally or legally penalize healthcare workers who provide gender-affirming care to minors. Seventeen states are defendants in current lawsuits over the restrictions. Despite these legal challenges, most of the laws are currently in effect. These laws have a massive impact on the transgender youth of America.
With a new President in office, access to gender-affirming for minors is as relevant of an issue as ever. We can expect to see legislative change at the federal level in addition to activity at the state level. Soon after his inauguration, President Trump signed an executive order addressing gender-affirming care in the United States. Trump’s order says that the federal government will not “‘fund, sponsor, promote, assist, or support’ gender-affirming care for children.” Among the transgender community, the order raises concern over its discriminatory effects due to the subsequent limitation on gender-affirming care.
The United States can expect to see more changes in the near future through the case of United States v. Skrmetti. A decision in United States v. Skrmetti has the potential to overturn laws that ban gender-affirming care for minors. Skrmetti aims to reinstate gender-affirming care in more than two dozen states. However, the anticipated outcome is that the Skrmetti decision will align with the Trump administration and uphold the state laws restricting gender-affirming care.
The issue in Skrmetti arose in March 2023, when the governor of Tennessee signed Senate Bill One into law. Senate Bill One bans gender-affirming care for transgender youth. Within that same year, 19 other states enacted similar laws restricting or banning gender-affirming care for minors. The LGBTQ community challenged this bill and others as discriminatory in violation of the Equal Protection Clause. Skrmetti is the case to follow for the status of gender-affirming care accessibility for minors in the United States.
United States v. Skrmetti is the first case where the Supreme Court is considering how the Equal Protection Clause applies to this kind of medical care. The Court’s decision will ultimately depend on whether the justices classify this kind of limitation on medical care as a matter of age or sex. The Supreme Court is more likely to uphold the laws banning gender-affirming care if it determines that the limitations discriminate on the basis of age rather than sex. The level of scrutiny applied in these cases depends on the above determination. The plaintiffs in Skrmetti contend that they are being discriminated against on the basis of their sex/identity as transgender. The Attorney General of Tennessee contends that the law is merely an age limitation, applicable to all sexes/genders.
United States v. Skrmetti is already a historical moment. Chase Strangio, representing the plaintiffs, is the first openly transgender lawyer to argue in front of the Supreme Court of the United States. The Skrmetti decision will have large implications for the availability of gender-affirming care for transgender youth, regardless of how the court decides. If Tennessee’s Senate Bill One is upheld, more states will enact similar bans, making it much harder for transgender youth to obtain gender-affirming care in those states. Many medical associations around the country recognize that gender-affirming care for transgender youth is often life-saving care. According to The Trevor Project’s 2020 National Survey, 54% of young people who identify as transgender or nonbinary have seriously considered suicide and 29% have attempted to end their lives. Further restrictions on access to this care would likely increase rates of mental health issues and suicide in the youth of America. Additionally, patient-physician relationships may be negatively affected if the states restrict physician judgement and patient choice in this way. Physicians know more about each individual patient than the state legislature. This intervention into the kinds of care physicians is allowed to give patients may hinder the patient’s trust that the physician is giving them the best possible care.
On the other hand, there could be some negative implications if the Court sides with the plaintiffs. By striking down Tennessee Senate Bill One, more states would allow minors to receive gender-affirming care. Gender-affirming care is experimental, and its long-term physical effects are not well known. It can be difficult for parents or children to provide informed consent for medical treatments like this, as they may not know of all the risks. Striking down the law as a violation of the Equal Protections Clause could lead to an increase in children experiencing long-term physical harm from these treatments. Whichever way the Court comes out in Skrmetti will set a precedent for how transgender issues are viewed and analyzed under the Constitution going forward.