Understanding U.S. v. Skrmetti: The Future of Gender Affirming Care for Minors
What is the Skrmetti Case?
The Skrmetti case, officially United States v. Skrmetti, is a legal challenge before the U.S. Supreme Court concerning bans on gender-affirming care for minors. The case focuses on whether such bans, like Tennessee Senate Bill 1, violate the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court is largely considering the standard of review for laws that discriminate based on sex. This case is significant because it directly addresses how the Equal Protection Clause applies to gender-affirming care for minors and could have wide-reaching impacts on gender-affirming care bans.
Origins of U.S. V. Skrmetti
The genesis of U.S. v. Skrmetti began in March of 2023 when Tennessee passed legislation restricting access to hormones, hormone blockers, and gender-affirming surgical procedures to anybody under the age of 18. Additionally, the law required any minors who were already undergoing hormone therapy to stop their treatments. A case was brought before the Tennessee district court by the family of a trans minor who relied on access to gender-affirming care. The district court sided with the family on everything except for the legalization of gender-affirming surgical procedures for those under the age of 18, but this initial victory was quickly appealed.
The U.S. Court of Appeals for the Sixth Circuit ultimately upheld the bans on hormone therapy, blockers, and surgical intervention for minors in a 2-1 split decision, reversing the initial ruling of the Tennessee district court. This decision was then appealed to the Supreme Court.
Oral Arguments and Strict Scrutiny
On December 4, 2024, the Supreme Court opened oral arguments on the case U.S. v. Skrmetti. The ACLU lawyers arguing against the gender-affirming care (GAC) ban stressed the main issue before the Court is whether the Sixth Circuit appellate court applied the proper level of scrutiny in reviewing the legislation in its decision to uphold the GAC ban.
The ACLU lawyers argue that strict scrutiny should have been applied when determining a ruling in the appellate court, and it wasn’t. There are three main levels of scrutiny used by the courts: strict scrutiny, intermediate scrutiny, or rational basis scrutiny. Strict scrutiny is the highest level of scrutiny applied by the courts. The Supreme Court has determined that any legislation or actions taken by the government that discriminates of the basis of race, national origin, or religion, must meet the high burden of strict scrutiny to survive a legal challenge. Strict scrutiny means that the legislation is presumed to be unconstitutional. The government must then prove that its actions in enacting such legislation were constitutional, “narrowly tailored” to further a “compelling government interest,” and that they were the “least restrictive means” to further that interest. This is a high bar to meet in court.
In United States v. Virginia (1996), the Supreme Court ruled that “all gender-based classifications” are subject to “heightened scrutiny,” meaning that any laws with gender or sex-based classifications should be treated as presumptively unconstitutional, and the state must prove that its law was not enacted for discriminatory reasons for the law to stand. Lawyers against the Tennessee GAC ban argued the law directly discriminates on the basis of sex and therefore requires the highest level of scrutiny applied. ACLU lawyers are asking this case to be sent back down to federal appeals court because this heightened scrutiny wasn’t applied as required by the Supreme Court and the Virginia precedent.
What if the Supreme Court rules against the Tennessee GAC ban?
There are a few potential outcomes for this case. The Supreme Court could deliver a verdict that strikes down Tennessee GAC ban. This would be a victory for anyone trying to access GAC in this country. While this would be a great outcome, the most likely positive ruling in the case would be for the Supreme Court to decide to send this case back to the lower courts for reconsideration using the highest level of scrutiny. This would be an important signal to federal courts across the county that the expectation is to always apply a higher level of scrutiny when legislation targets trans and gender diverse (TGD) people’s access to healthcare.
What if the Supreme Court rules in favor of the Tennessee GAC ban?
If rulings in this case result in the upholding the Tennessee GAC ban, it would make it much easier for other states to maintain their GAC bans. The 25 states that are currently restricting access to gender-affirming care would have stronger legal precedent to uphold their GAC bans.
This would make it much harder to challenge these bans in court. This would be a huge blow to the health and security of people seeking GAC. The Human Rights Campaign reports that there are over 117,000 trans youth aged 13-17 residing in states with bans who have lost access to gender-affirming care in the last two years as anti-LGBTQ+ legislation has grown more prevalent. This ruling would directly impact the health outcomes of these youth without access to life-saving care. A 2022 study found that TGD youth who were prescribed puberty blockers and gender-affirming hormones were 60% less likely to suffer from depression and 73% less likely to consider suicide than those who did not have access.
This ruling would come at an increasingly difficult time for trans people seeking healthcare, as the current administration has produced a record number of Executive Orders aimed at eliminating access to GAC. Some of these include:
- Sex Discrimination Executive Order declaring that the U.S. recognizes only two sexes, male and female, and that they are “not changeable,” which impacts trans people’s ability to obtain passports and other federal identification documents that align with their gender identity, as well as where trans and gender diverse people are confined when in federal custody.
- Gender Affirming Care for Young People Executive Order attempting to shut down access to necessary medical care for transgender people under 19 by directing federal agencies to withhold funding from medical institutions that provide this care.
- School Censorship Executive Order attempting to intimidate teachers and schools into withdrawing critical supports for trans students, such as allowing them to use the restroom, name, or pronouns that match their gender identity and restricting education on LGBTQ+ issues.
- Anti-Trans Sports Ban Executive Order attempting to ban trans girls and women from participating in sports with cisgender girls and women by pressuring K-12 schools, colleges and universities, as well as athletic governing bodies, to block trans people from participating in sports teams that match their gender identity.
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