WASHINGTON — The Supreme Court on Wednesday upheld Tennessee’s ban on gender-affirming care for transgender minors, a stunning setback to transgender rights.
The justices’ 6-3 decision in a case from Tennessee effectively protects from legal challenges many efforts by President Donald Trump’s Republican administration and state governments to roll back protections for transgender people. Another 26 states have laws similar to Tennessee’s.
Chief Justice John Roberts wrote for a conservative majority that the law does not violate the Constitution’s equal protection clause, which requires the government to treat similarly situated people the same.
“This case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field. The voices in these debates raise sincere concerns; the implications for all are profound,” Roberts wrote. “The Equal Protection Clause does not resolve these disagreements. Nor does it afford us license to decide them as we see best.”
In a dissent for the court’s three liberal justices that she summarized aloud in the courtroom, Justice Sonia Sotomayor wrote, “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.”
Efforts to regulate transgender people’s lives
The decision comes amid other federal and state efforts to regulate the lives of transgender people, including which sports competitions they can join and which bathrooms they can use. In April, Trump’s administration sued Maine for not complying with the government’s push to ban transgender athletes in girls sports.
The Republican president also has sought to block federal spending on gender-affirming medical care for those under age 19 — instead promoting talk therapy only to treat young transgender people. And the Supreme Court has allowed him to kick transgender service members out of the military, even as court fights continue. The president signed another order to define the sexes as only male and female.
Trump’s administration has also called for using only therapy, not broader health measures, to treat transgender youths.
Fourteen states, including Illinois, and Washington, D.C., have shield laws for gender-affirming care, which protect patients and providers from legal actions spurred by other states’ laws.
Michelle García, Deputy Legal Director at the ACLU of Illinois, said Illinois law recognizes that health care bans threaten people’s health and wellbeing, but that there are many protections put into place to allow transgender youths and their families to make their own health care decisions.
Some of these protections include the Illinois Human Rights Act, which protects transgender people from discrimination, and the Patient and Provider Protection Act, which protects health care professionals that provide gender affirming care to patients in Illinois.
“It’s very important to know that this ruling is really limited to Tennessee and the facts around their ban,” García said. “Nothing in the ruling changes the reality of gender affirming care to people in Illinois and in states that already provide gender affirming care.”
Some providers have stopped treatment already
Several of the states where gender-affirming care has not been banned for minors have adopted laws or state executive orders seeking to protect it. But since Trump’s executive order calling for blocking federal funding for the treatment for those under 19, some providers have ceased some treatments. Some local providers, such as Lurie Children’s Hospital and University of Illinois Health, have altered or ended certain gender-affirming care programs despite them being protected by state law.
The president of the American Academy of Pediatrics, Dr. Susan Kressly, said in a statement the organization is “unwavering” in its support of gender-affirming care and “stands with pediatricians and families making health care decisions together and free from political interference.”
Kara Ingelhart, director of the LGBTQI+ Rights Clinic and clinical assistant professor of law at Northwestern Pritzker School of Law, said advocates are devastated by this “egregious and wrong decision from the Supreme Court,” and that the majority opinion is engaging in what she considers “linguistic gymnastics” by stating that the Tennessee law does not violate the equal protection clause.
Five years ago, the Supreme Court ruled transgender, gay and lesbian people are protected by a landmark federal civil rights law that prohibits sex discrimination in the workplace. That decision is unaffected by Wednesday’s ruling.
But the justices Wednesday declined to apply the same sort of analysis the court used in 2020 when it found “sex plays an unmistakable role” in employers’ decisions to punish transgender people for traits and behavior they otherwise tolerate. Roberts joined that opinion written by Justice Neil Gorsuch, who was part of Wednesday’s majority.
Justice Amy Coney Barrett also fully joined the majority but wrote separately to emphasize that laws classifying people based on transgender status should not receive any special review by courts. Barrett, also writing for Justice Clarence Thomas, wrote that “courts must give legislatures flexibility to make policy in this area.”
‘A devastating loss’ or a ‘Landmark VICTORY’
Chase Strangio, the American Civil Liberties Union lawyer who argued the case for transgender minors and their families, said in a statement that the ruling “is a devastating loss for transgender people, our families, and everyone who cares about the Constitution.”
Tennessee Attorney General Jonathan Skrmetti on social media called the ruling a “Landmark VICTORY for Tennessee at SCOTUS in defense of America’s children!”
Asher McMaher, executive director of Trans Up Front Illinois, said the ruling unfairly strips autonomy from families to make medical decisions. Speaking at a news conference in Northalsted with other trans rights advocates, McMaher said they would hold a protest this Saturday at Federal Plaza.
“We will continue to hit the streets every time it is needed, because it’s not just about our sanctuary city here,” McMaher said. “It’s for that child living in Iowa or in Tennessee or in Mississippi or in Florida who are desperate and scared and need to see that we are here for them.”
Channyn Lynne Parker, head of Chicago-based Brave Space Alliance, said the ruling would encourage young trans people to seek riskier, unsupervised treatment.
Parker said she experienced this herself at age 16 when she took unprescribed hormones and was later diagnosed with a pulmonary embolism.
“Skrmetti’s ruling will not stop trans youth from seeking care. It will only drive them to the underground, making preventable tragedies more likely,” Parker said.
There are about 300,000 people between the ages of 13 and 17 and 1.3 million adults who identify as transgender in the United States, according to the Williams Institute, a think tank at the UCLA School of Law that researches sexual orientation and gender identity demographics.
When the case was argued in December, then-President Joe Biden’s Democratic administration and families of transgender adolescents called on the high court to strike down the Tennessee ban as unlawful sex discrimination and protect the constitutional rights of vulnerable Americans.
They argued the law violates the equal protection clause of the 14th Amendment.
Tennessee’s law bans puberty blockers and hormone treatments for transgender minors but allows the same drugs to be used for other purposes.
Soon after Trump took office, the Justice Department told the court its position had changed.
Associated Press writers Geoff Mulvihill, in Cherry Hill, N.J., and Nadia Lathan in Austin, Texas, contributed to this report. Selena Kuznikov is a Sun-Times staff reporter.
