Over half of states restrict gender-affirming care. Could the Supreme Court change that?

A study released last week has found that youths who follow through with gender-affirming care, like hormone therapy or puberty blockers, may not regret it as much as the public and policymakers think. But despite ongoing research that gender-affirming care can improve transgender minors’ mental health and well-being, some state lawmakers are continuing their push for legislation to restrict access to such services.

Earlier this month, 10 Republican governors filed an amicus brief in United States v. Skrmetti, a case before the U.S. Supreme Court regarding Tennessee’s Help Not Harm Law that prohibits health care providers from offering or administering gender-affirming care to transgender youths. The case hinges on whether the law violates the equal protection clause in the U.S. Constitution.

In the brief supporting Tennessee’s policy, which the state’s Gov. Bill Lee signed last year, the governors claim that such laws “protect children from scientifically unsupported medical treatments with life-altering consequences.”

“Governors signing laws that protect minors is nothing new,” the brief states. “Just as governors sought to protect children by keeping them from buying handguns or getting tattoos, so too did the governors who signed the Help Not Harm bills." 

Across the U.S., 26 states have passed policies to ban or restrict access to medical procedures and services for gender reassignment. Most laws are aimed at prohibiting gender-affirming care for minors, but a few states are also trying to limit access to such care for adults.

For the more than 300,000 youths who identify as transgender in the U.S., banning gender-affirming services could do more harm than good, said Elana Redfield, federal policy director of the Williams Institute, a think tank focusing on law and policy regarding sexual orientation and gender identity, including perpetuating stigma against and worsening health disparities among the LGBTQ+ community. According to an amicus brief filed by the Williams Institute, for instance, a third of transgender individuals live in states — mostly in the South and Midwest — with restrictive transgender care policies.

The United States v. Skrmetti case will have major impacts for Tennessee and other states with restrictions on transgender care. “It will give a signal as to whether or not — and how — states can regulate access to gender-affirming care for [transgender] people,” Redfield said.

Arizona and New Hampshire, for instance, have laws banning gender reassignment surgeries. Since those policies address surgical procedures, they won’t be directly impacted by United States v. Skrmetti, she said, but the case’s outcome will raise the question if state lawmakers are allowed to pass and implement such laws. State legislation regarding transgender people’s participation in sports and their use of facilities like bathrooms could also be affected.

The United States v. Skrmetti case could also mean that the Supreme Court “is going to have to engage with this very significant question, which is, ‘How will courts consider allegations of transgender discrimination?’” Redfield said.

The equal protection clause, for instance, protects groups of individuals that have historically faced discrimination based on certain characteristics, which are referred to as suspect classifications. Generally, suspect classifications include race, religion, national origin, gender and immigration status.

Under United States v. Skrmetti, the justices will likely have to consider if transgender people qualify as a suspect class and “look more critically at the efforts of a state to legislate” gender-affirming care, Redfield explained. That’s because states often frame laws restricting gender reassignment procedures as broad regulations on medical procedures, rather than discrimination against transgender people.

Indeed, governors have largely claimed that gender-affirming care is experimental and lacks scientific backing for it to continue.

“Few things could be more damaging to a vulnerable child than an unnecessary, permanent, life-altering surgery,” said Sam Dubke, communications director for Arkansas Gov. Sarah Huckabee Sanders, who also signed the amicus brief, in an email to Route Fifty, “which is why Governor Sanders has fought so hard to protect kids from being victimized by gender science experiments.”

Arkansas was the first in the nation to pass a law banning gender-affirming medical treatment for minors in 2021. It was struck down last year by a federal judge for being unconstitutional, but a federal appeals court upheld the ban in September.

“There are so many trans youth that are affected by these bans,” Redfield said. Regardless of the outcome of United States v. Skrmetti, “we’re going to get a much better picture of how transgender cases are going to be handled by courts moving forward.”

The U.S. Supreme Court will hear oral arguments for the case Dec. 4.