5 takeaways from the Supreme Court ruling on gender-affirming care

The U.S. Supreme Court's ruling Wednesday in U.S. v. Skrmetti (also known as L.W. v. Skrmetti), upholding Tennessee's ban on gender-affirming care for transgender minors, is not the ruling trans people and their allies wanted. The court ruled 6-3 to uphold the ban, claiming it didn't discriminate on the basis of gender identity but simply banned medical procedures to treat certain conditions, such as gender dysphoria, in people under 18. If the court had found it was gender identity discrimination, which a previous ruling held is a form of sex discrimination and therefore illegal, the ban would have at least been subject to greater scrutiny from the court. Here are five things to keep in mind about the ruling.

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It's obviously a bad ruling.

It’s devastating to trans youth and their families who live in states with bans. It will mean that they have to travel to other states to receive needed care, which is often lifesaving.

Chief Justice John Roberts, in his majority opinion, noted that studies in some European countries have raised questions about the effects of gender-affirming care, contending that treatments such as hormone therapy and puberty blockers are risky. So did Justice Amy Coney Barrett, in her concurring opinion.

Justice Clarence Thomas also wrote a concurring opinion questioning the scientific case for gender-affirming care. “Before this Court, the United States asserted that ‘overwhelming evidence’ supports the use of puberty blockers and cross-sex hormones for treating pediatric gender dysphoria, and that this view represents ‘the overwhelming consensus of the medical community.’ These claims are untenable,” he asserted. (Elizabeth Prelogar, who was U.S. solicitor general in the Biden administration, was among the attorneys who argued against the Tennessee law when the high court heard the case in December. When Donald Trump returned to office, the federal government switched to supporting the ban.)

But these treatments are endorsed by every major U.S. medical association, and they are never entered into lightly.

“This decision is bad,” said a statement from Oliver Hall, trans health director at the Kentucky Health Justice Network. “It’s based on junk science and fear. It will have lasting implications that will inevitably touch all of our lives in profoundly negative ways, but it will not stop trans youth from transitioning, and it will not stop those of us committed to showing up for trans youth from continuing to show up and get them the care they need.”

Justice Sonia Sotomayor wrote in her dissent, “By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims. In sadness, I dissent.” She was joined in the dissent by Justice Ketanji Brown Jackson and in most of it by Justice Elena Kagan.

But it could have been worse.

The majority opinion claimed that the Tennessee law merely bans treatment for certain medical conditions in minors, such as gender dysphoria, and “does not classify on the basis of transgender status.” Therefore, the majority concluded, the ban does not amount to discrimination based on sex or gender identity — and a 2020 Supreme Court decision, Bostock v. Clayton County, held that job discrimination based on gender identity or sexual orientation is sex discrimination and therefore banned by federal law.

The Skrmetti decision, while negative for trans rights, did not limit the application of the Bostock ruling to employment discrimination. Therefore some anti-trans laws can be challenged with the argument that federal law prohibits anti-trans discrimination in other aspects of life, legal experts say.

Jennifer Levi, senior director of transgender and queer rights at GLAD Law, further explained that the Skrmetti decision leaves open the possibility of challenging bans that can be shown to be based on “invidious discrimination” on the basis of sex or gender identity.

For instance, a federal judge in Florida ruled that his state, in banning gender-affirming care for trans minors and restricting it for trans adults, was discriminating against them simply for being trans. “The State of Florida can regulate as needed but cannot flatly deny transgender individuals safe and effective medical treatment — treatment with medications routinely provided to others with the state’s full approval so long as the purpose is not to support the patient’s transgender identity,” U.S. District Judge Robert Hinkle wrote in June 2024, in blocking Florida’s ban. However, in August, a three-judge panel of the U.S. Court of Appeals for the 11^th Circuit put his injunction against the ban on hold, so it can be enforced while the case is appealed. In the 2-1 ruling, two appellate judges differed with Hinkle’s conclusion that the state acted with invidious discrimination, while one agreed with it. The case remains pending.

The anti-trans executive orders issued by Trump can still be challenged, added Chase Strangio, co-director of the American Civil Liberties Union’s LGBTQ and HIV Project, on a conference call with reporters. Strangio argued the case against the Tennessee ban before the high court; he was the first out trans person to argue before the Supreme Court. These orders often refer to “gender ideology” or use similar terms, clearly showing animus against trans people, he said.

And even though the Supreme Court majority found that the Tennessee law doesn’t violate the U.S. Constitution, state constitutions provide another avenue of argument against bans, Strangio and others said.

Liberal states most likely won't enact bans.

While the Skrmetti decision allows Tennessee’s ban and others to stand, it does not mandate or green-light bans in other states or other forms of discrimination, Karen Loewy, director of constitutional law practice at Lambda Legal, said on the conference call. Therefore, there likely won’t be efforts to ban this care in liberal states, some of which have taken steps to provide protections for those receiving the care, including those coming from out of state.

“It’s a country divided,” Levi added in a phone interview with The Advocate, with states clearly on opposite sides of the issue.

Donna Lieberman, executive director of the New York Civil Liberties Union, released a statement saying her state will continue to stand behind gender-affirming care for trans youth. “Let’s be clear: Today’s ruling neither removes nor affects our New York state’s protections for trans people and their right to access gender-affirming care in New York,” she said. “The NY Equal Rights Amendment, which the NYCLU helped lead to victory on the 2024 ballot, cemented these protections. Gender-affirming care is available and protected for New Yorkers. Anyone who comes to our state has the fundamental right to get the care they deserve.”

So did California Attorney General Rob Bonta. “All Americans regardless of their gender identity have the inalienable right to equal protection under the law. This includes the right to access health care free from discrimination,” he said. “Across the nation, we’ve seen a rise in hate-fueled violence and intimidation against our LGBTQ+ community, and laws such as Tennessee’s Senate Bill 1 only serve to exacerbate these conditions by blatantly discriminating against transgender youth and denying them access to critical lifesaving care. In California, we will continue to promote and protect access to health care, not restrict it. My office and I remain committed to safeguarding and upholding the health care rights and freedoms for all individuals, including our transgender youth.”

The decision is also unlikely to lead to bans on care for trans adults, although conservative states may try.

“The court was very clear to talk about how this was about care for minors, not adults,” Strangio said.

“This decision is very clear about the age factor — the court here went out of its way to confine it to care for minors,” Loewy added.

As noted, the challenge to Florida’s severe restrictions on gender-affirming care for trans adults and its ban on this care for minors is still pending. The Skrmetti decision leaves room for challenges to any forthcoming attempts to restrict care for adults, the lawyers said.

The fight goes on.

.While the Skrmetti decision is devastating, it isn’t the end of the line. There were setbacks on marriage equality and the right to private consensual sex before the Supreme Court ruled in favor of these rights. In the 2003 consensual sex decision, which turned on sodomy laws, Justice Anthony Kennedy wrote for the court majority that a previous ruling upholding those laws, Bowers v. Hardwick, “was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent.” So the court could always rule in favor of gender-affirming care if such a case reaches it — and if the ideological makeup of the court is different than it is today. (However, we’re also seen the court reverse itself and take away rights, as in the Dobbs decision, which overturned Roe v. Wade and its nationwide guarantee of abortion rights. And Clarence Thomas has said the court should revisit marriage equality and sodomy laws.)

Other fights can be waged in state legislatures and Congress. “The law the court upheld is an attack on some of the most vulnerable in our community — but we still have other tools to challenge anti-trans laws in courts across the country,” said a statement from U.S. Rep. Mark Takano. “As chair of the Equality Caucus, I am committed to continuing to lead elected officials from across the country in the fight for full equality for transgender people under the law here in Congress.”

Kelley Robinson, president of the Human Rights Campaign, issued this statement: “As parents, advocates, and community leaders, we know that our fight doesn't end in courtrooms — it lives in our communities, our hearts, and our unwavering commitment to each other. Still, we will not be deterred. We will support families forced to make impossible choices, fund legal challenges, and build a movement so powerful that no politician can ignore us. Together, we will turn this pain into power and keep fighting until every transgender person in America can live with dignity, safety, and the freedom to be who they are.”

Andy Marra, executive director of Advocates for Trans Equality, had this to say: “This is not a total defeat. We still have powerful legal tools at our disposal. We will use them to fight the extremists’ relentless and perverse attacks on transgender people and to hold elected officials accountable for abusing their power. Today’s ruling may be a setback, but it does not end our work. We at A4TE remain committed to advancing equality for trans communities and will continue to work alongside families, medical experts, advocates, and allies across the country to challenge these bans from courthouses to Capitol Hill.”

“While this isn’t the decision we hoped for, it does not deter us on our fight for collective liberation,” said a statement from Mariah Moore, director of policy and programs at Transgender Law Center. “Today’s ruling is a painful reminder of the challenges we continue to face in the fight for trans rights, autonomy, and access to care for all people. We share the deep disappointment felt by so many across the country and remain committed to fighting for those impacted by the harmful restrictions the federal government has allowed to go into effect.”