In major transgender rights case, Supreme Court sides with state over parents
In a landmark ruling Wednesday, the U.S. Supreme Court upheld a state law banning gender-transition treatment for minors.
The 6-3 decision in U.S. v. Skrmetti is expected to have major consequences for transgender children and their families around the country. Supporters found the decision 鈥渉eartening,鈥� citing the need to protect vulnerable children from potentially irreversible decisions. Opponents say it will harm those same children by denying them medical care that could prevent self-harm or suicide. On Wednesday, justices declined to build heightened constitutional protections around an issue at the heart of America鈥檚 culture wars in recent years.
In doing so, the high court has further fleshed out its jurisprudence concerning transgender rights, a relatively novel legal issue for courts. With this ruling, state governments will now have broader discretion to regulate the medical care that children and teens identifying as transgender can receive. While Wednesday鈥檚 decision applies specifically to transgender children, some legal experts argue that parents鈥� rights to make health care decisions for their children could be diminished in its wake.
Why We Wrote This
In a 6-3 decision, the Supreme Court upheld a Tennessee law prohibiting gender-transition care for minors. Chief Justice John Roberts noted transgender policies should be set by elected officials and the democratic process.
In the majority , Chief Justice John Roberts acknowledged the growing prominence of transgender rights issues and the complexity of scientific debates on medical treatments for youth identifying as transgender. Ultimately, he concluded, the courts should not get involved in those debates.
鈥淭he Court鈥檚 role is ... only to ensure that the law [at issue] does not violate equal protection guarantees. It does not,鈥� he wrote. 鈥淨uestions regarding the law鈥檚 policy are thus appropriately left to the people, their elected representatives, and the democratic process.鈥�
It 鈥渟eems so hypocritical鈥�
An estimated 1.6 million Americans age 13 or older identify as transgender. The United States is also seeing an increasing number of children diagnosed with gender dysphoria, a mental disorder defined as a person鈥檚 distress at the mismatch between their gender identity and their sex assigned at birth.
The number of children diagnosed with the condition nearly tripled between 2017 and 2021, according to a Reuters. Treatments for the condition 鈥� which are intended to help a person align their outward, physical traits with their gender identity 鈥� range from therapy to medication and surgery. Surgery is prescribed for minors, but has risen in recent years.
In 2023, Tennessee passed a law banning children from receiving gender-transition treatment. Similar legislation has been enacted in 26 other states, , a health policy research organization.
鈥嬧�婣 group of transgender minors, their parents, and a doctor challenged the Tennessee law, arguing that it violates the equal protection clause of the 14th Amendment. In an opinion that broke along the high court鈥檚 ideological divide, a majority of justices held that the law is constitutional.
Supporters of the children and their parents say that Wednesday鈥檚 decision flies in the face of precedent that parents should be the final deciders of their own children鈥檚 treatment.
鈥淭he argument that parents should make decisions about their children鈥檚 medical care when the children have a diagnosed medical condition seems to me a no-brainer,鈥� says Laurie Marhoefer, a legal historian at the University of Washington who wrote an amicus brief on behalf of the plaintiffs. 鈥淭he fact that so many people, including the justices on the Supreme Court, are now willing to take away the ability of parents to make decisions about their kids鈥� medical care ... just seems so hypocritical to me.鈥�
Other experts say that just as parents are not allowed to skip educating their children, hand car keys to a 12-year-old, or force them to work, the state has an overwhelming interest in protecting children in this case.
鈥淚 don鈥檛 want to diminish the parents鈥� interest. I鈥檓 just saying there are many, many examples where the parents don鈥檛 prevail,鈥� says James Blumstein, a constitutional law professor at Vanderbilt University in Tennessee who filed an amicus brief on behalf of the state.
This is especially the case given the medical uncertainty surrounding gender-transition treatment, he says. 鈥淯ltimately, this is a decision that the child should make when he or she becomes an adult,鈥� he says. 鈥淭he government is within its rights to preserve that freedom for the minor until the minor becomes an adult.鈥�
鈥淥n the basis of age鈥�
The case turned on the standard of review 鈥� the method the justices use to determine constitutionality 鈥� that the Supreme Court should apply to the Tennessee law. The court has held that laws implicating certain protected classes, such as racial groups or national origin groups, are only constitutional if they鈥檙e narrowly tailored 鈥渢o serve a compelling state interest.鈥� Laws with sex-based classifications, meanwhile, are subject to a slightly lower standard of review.
The plaintiffs argued that the law discriminates against transgender children on the basis of their sex, because the law bans medical care only for children who feel their sex doesn鈥檛 correspond with their gender identity. The Supreme Court rejected that argument.
Instead, the law classifies 鈥渙n the basis of age鈥� and 鈥渙n the basis of medical use,鈥� Chief Justice Roberts wrote. Thus, the law is subject to 鈥渞ational basis review,鈥� meaning a law stands if there are 鈥減lausible reasons鈥� for the government action. Courts typically afford state legislatures wide discretion 鈥渨here there is medical and scientific uncertainty,鈥� the chief justice added. Recent scientific studies in the U.S. and Europe on the efficacy and harms of gender-transition treatments, he wrote, 鈥渙nly underscore the need for legislative flexibility in this area.鈥�
There are 鈥渙pen questions regarding basic factual issues before medical authorities and other regulatory bodies,鈥� he continued. 鈥淪uch uncertainty 鈥榓fford[s] little basis for judicial responses in absolute terms.鈥欌��
In a dissent, Justice Sonia Sotomayor criticized the majority for abdicating a fundamental role to protect a minority group from oppression at the hands of the majority.
Instead, she wrote, the court applied a standard of review 鈥渘ormally employed to assess run-of-the-mill economic regulations, to legislation that explicitly differentiates on the basis of sex.鈥�
鈥淏y retreating from meaningful judicial review exactly where it matters most,鈥� she added, 鈥渢he Court abandons transgender children and their families to political whims.鈥�
Rights of parents vs. rights of state
In deciding the case, the justices had to resolve a key conflict: the rights of parents versus the rights of a government when it comes to the health and well-being of a child.
With its decision, the Supreme Court came down firmly on the side of states鈥� rights.
鈥淲e already protect children from arguably much less,鈥� says Chloe Cole, a 20-year-old who began detransitioning at age 17 and calls Wednesday鈥檚 Supreme Court decision 鈥渋ncredibly heartening.鈥� 鈥淐hildren cannot enter into contracts that they do not understand. They can鈥檛 buy alcohol; they can鈥檛 purchase tobacco products or marijuana.鈥�
鈥淲hat we should be doing is allowing these children time to settle into their identity with their birth sex, to comfort them, to show them true compassion, to give them counseling through the causes of these feelings of distress around their sex and their bodies, rather than feeding into it and telling them, 鈥榊es, you can change; yes, you should change in order to be happy,鈥欌�� says Ms. Cole, who regrets the 鈥渋rreversible surgery鈥� she had at age 15.
There鈥檚 a very strong argument to be made for parents being the final arbiters of medical decisions for their children, says Brianna Wu, a Boston-area computer software engineer and public advocate for transgender rights. She feels the American Civil Liberties Union has been pursuing an 鈥渆xtreme gender鈥� ideology that has generated a backlash from many Americans. She鈥檚 concerned that Wednesday鈥檚 decision could open the door for red states to ban treatment for adults. Even so, she says, trans health providers have not been honest with parents about the risks of these procedures.
鈥淪o on one hand, I鈥檓 very sympathetic to this argument. On the other, it鈥檚 like it鈥檚 hard for parents to give consent when we鈥檙e not being honest with them about what they鈥檙e giving consent to,鈥� says Ms. Wu, who identifies as a transsexual and believes the term transgender is being used too broadly and in a way that has alienated people who used to regard transitioning as a private medical decision made by an individual.
Protections for transgender Americans?
The court鈥檚 decision Wednesday does leave a fundamental question unanswered: What degree of protection should the Constitution afford transgender individuals?
The majority opinion held only that in this case, the Tennessee law is subject to rational basis review. Unanswered is the question of whether other kinds of transgender rights cases could receive more heightened review.
鈥淭he court left open for the future questions about how discrimination-based cases might play out,鈥� says Professor Blumstein, who says that he believes the sex discrimination claim 鈥渨as a weak argument all along.鈥�
The plaintiffs had argued that being transgender constitutes a 鈥渜uasi-suspect class鈥� meriting heightened due process protections. In a concurring opinion joined by Justice Clarence Thomas, Justice Amy Coney Barrett disagreed.
For over four decades, she noted, the Supreme Court has 鈥渞epeatedly declined鈥� to recognize a new constitutionally protected class. Unlike other suspect classes that merit heightened scrutiny, she added, transgender individuals are a 鈥渓arge, diverse, and amorphous鈥� group. Unlike a racial group or a sex, she added, transgender individuals do not have 鈥渙bvious, immutable, or distinguishing characteristics.鈥�
In his own concurring opinion, Justice Samuel Alito noted that appeals courts are divided on whether transgender individuals are a suspect class. Like Justice Barrett, he wrote that they are not.
鈥淎lthough our approaches [differ], I do not see them as incompatible,鈥� he added, referring to Justice Barrett鈥檚 opinion. 鈥淚f we do not confront [this question] now, we will almost certainly be required to do so very soon.鈥�
And the high court appears split. Those three conservative justices clashed with Justice Sotomayor, as well as Justices Ketanji Brown Jackson and Elena Kagan, who also dissented in Wednesday鈥檚 opinion. Because they only signed on to the majority opinion, it鈥檚 unclear how Chief Justice Roberts and Justice Neil Gorsuch view the question.
The uncertainty over that bedrock constitutional question augurs future cases that will clarify the scope of transgender rights.
Laws banning gender-transition treatment for minors are part of broader efforts, in mostly Republican-led states, to respond to the growing visibility of transgender Americans. States have passed laws restricting bathroom usage, banning transgender youth participation in sports, and banning the discussion of gender identity in schools. State lawmakers have filed nearly 600 bills targeting transgender rights this year, the ACLU, up from 533 in 2024.
The Supreme Court鈥檚 ruling Wednesday will embolden those efforts, experts say.
鈥淭here haven鈥檛 been explicit bans on care before, so it鈥檚 really troubling,鈥� says Professor Marhoefer.
鈥淲e鈥檙e going to see preemptive shutdowns of care, even in blue states, and just a very different landscape ... where it鈥檚 much harder to get care for kids and adults,鈥� he adds.
In a press call after the ruling came out, lawyers on the losing side of the decision expressed an optimism that the Supreme Court may provide more robust protections of transgender rights in other contexts, such as restrooms and sports.
鈥淚 don鈥檛 actually think this tells us much at all of how those other contexts will proceed before this court,鈥� said Karen Loewy, director of the constitutional law practice at Lambda Legal.
鈥淭he court made clear that they were just doing something different and specific here. So we can continue to fight those in all the ways that we have done in the past.鈥�
