/>iOn June 18, 2025, in the case of United States v. Skrmetti, the U.S. Supreme Court upheld Tennessee’s ban on gender-affirming care—concluding that the law does not violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.
The decision marks the first time the Supreme Court considered the application of the Equal Protection Clause to transgender youth, despite the decision skirting the question of whether transgender status should be considered a protected class.
The decision has broad implications, although many legal issues in this area remain unresolved.
Tennessee SB 1—which took effect on July 1, 2023, and is now codified as Tenn. Code Ann. § 68-33-103(a)(1)—comprehensively bans all medical treatments from being administered to or performed on minors when the purpose of the medical procedure is to (1) “enable a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or (2) treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Tenn. Code Ann. § 68-33-103(a)(1).
In a 6-3 opinion authored by Chief Justice John Roberts, the Court in Skrmetti affirmed the U.S. Court of Appeals for the Sixth Circuit,[1] which held in September 2023 that (1) the Tennessee law does not discriminate on the basis of sex for purposes of equal protection, and (2) that it was subject only to rational basis review.
“SB1 does not classify on any bases that warrant heightened review,” the Supreme Court wrote. It concluded that the Tennessee law incorporates only two classifications: (1) age (allowing certain medical treatments for adults but not minors), and (2) medical use (allowing puberty blockers for minors for some conditions but not others). These two classifications warranted only rational basis review, the Court said.
And the Court dodged the question of whether transgender status should be considered a protected class equivalent to race or gender. “This case, in any event, does not raise that question because SB1 does not classify on transgender status.”
The Court rejected that argument as well as arguments that SB 1 relies on impermissible sex-based classifications or that it enforces a government preference that individuals conform to expectations about their sex.
“This Court has never suggested that mere reference to sex is sufficient to trigger heightened scrutiny,” Chief Justice Roberts wrote. “Such an approach, moreover, would be especially inappropriate in the medical context [as] some treatments and procedures are uniquely bound up in sex.”
The Court felt no need to address whether the 2020 case of Bostock v. Clayton County—holding that for an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate on the basis of sex[2]—reaches beyond the context of Title VII of the Civil Rights Act of 1964 and into the question in front of the Court in Skrmetti.
Finally, the Court concluded that there was a rational basis for SB1’s classifications: “Tennessee concluded that there is an ongoing debate among medical experts regarding the risks and benefits associated with administering puberty blockers and hormones to treat gender dysphoria, gender identity disorder, and gender incongruence. SB1’s ban on such treatments responds directly to that uncertainty.”
Concurrences and Dissent
Justice Clarence Thomas concurred, asserting that Bostock was wrongly decided, and, in any event, there was “no reason to import Bostock’s Title VII analysis into the Equal Protection Clause.” He also felt no need to defer to “so-called expert consensus” regarding the necessity for gender-affirming care.
“States have an interest in ensuring that minor patients have the time and capacity to fully understand the irreversible treatments they may undergo,” Thomas wrote.
Justice Amy Coney Barrett also concurred, writing separately to explain why, in her view, transgender status would not constitute a suspect class, concluding that such status was not marked by the same sort of “obvious, immutable, or distinguishing characteristics as race or sex.” Nor is the transgender population the kind of discrete group that the case law would require.
“Holding that transgender people constitute a suspect class would require courts to oversee all manner of policy choices normally committed to legislative discretion,” she wrote. And Justice Barrett did not find that transgender individuals suffered a history of de jure discrimination.
Justice Thomas Alito found a “strong argument” that SB1 classified on the basis of transgender status—yet agreed that the classification would not warrant heightened scrutiny, concluding that neither transgender status nor gender identity is a suspect or quasi-suspect class. Further, Justice Alito did not believe that the reasoning in Bostock applied when determining whether a law classifies based on sex for equal protection purposes.
Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson dissented, asserting that SB1 “expressly classifies on the basis of sex and transgender status, warranting intermediate scrutiny.” (Justice Kagan, meanwhile, declined to expressly consider how SB1 might fare under heightened scrutiny, stopping her analysis with the relevant test.)
“The Court abandons transgender children and their families to political whims,” Justice Sotomayor wrote. “In sadness, I dissent.”
Background
The medical community uses “gender-affirming care” as an umbrella term covering a range of medical interventions—not just surgical care—used to support gender diverse and transgender individuals when there is a conflict between the individual’s gender identity and the gender they were assigned at birth. Some interventions are reversible and others are not. Individual states may apply their own definitions of gender-affirming care as well.
Approximately two million Americans are transgender by this definition, with 1.6 million aged 13 and older. Research has indicated an increased risk of anxiety, depression, and suicide in this group. In Skrmetti, the appellant’s briefs, as well as several amicus briefs, cite to research that concludes gender-affirming care procedures are scientifically demonstrated to reduce these risks. The plaintiffs in Skrmetti were not challenging the law with respect to surgical procedures in their Supreme Court appeal, which was limited to the use of medication.
The District Court for the Middle District of Tennessee had preliminarily enjoined enforcement of the Tennessee law, concluding that the transgender ban was subject to heightened scrutiny because, in the lower court’s view, it (1) discriminates based on sex and (2) targets transgender individuals, who it deemed a quasi-suspect class.
The American Civil Liberties Union (ACLU), which is among those representing the plaintiffs in the case, challenged the law owing to its prohibition on hormone replacement therapy and puberty blockers in some minors and not others on the basis of sex (under the Tennessee law, a doctor can, for example, prescribe estrogen to a cisgender girl or testosterone for a cisgender boy). The plaintiffs—three transgender adolescents and a doctor from Tennessee who treats adolescents with gender dysphoria—argued that the ban discriminates on the basis of sex and transgender status.
The Biden administration intervened in the case on the side of the families and petitioned the Supreme Court for a writ of certiorari in November 2023. The petition, led by now-former Solicitor General Elizabeth B. Prelogar, argued that “Tennessee’s law is part of a wave of similar bans preventing transgender adolescents from obtaining medical care that they, their parents, and their doctors have all concluded is necessary.”
The case was heard by the Supreme Court in December 2024. On February 7, 2025, following the change in presidential administrations, the deputy solicitor general reversed course on its position that SB 1 violated the Fourteenth Amendment’s Equal Protection Clause and notified the Court that “the government’s previously stated views no longer represent the United States’ position.” Additionally, the letter stated that “[t]he Department [of Justice] has now determined that SB1 does not deny equal protection on account of sex or any other characteristic.”
Other Circuits
The Fourth and Ninth Circuits have held that gender identity is at least a “quasi-suspect class,” warranting heightened scrutiny for equal protection purposes.[3] The Eighth Circuit has held that Arkansas’ law banning gender-affirming care discriminates on the basis of sex in violation of the Equal Protection Clause, warranting heightened scrutiny.[4]
The Sixth Circuit in its 2023 Skrmetti decision, however, declined to follow the district court’s reasoning that the Tennessee statute improperly discriminates on the basis of sex and that transgender persons constitute a quasi-suspect class. Therefore, the Sixth Circuit applied the lesser standard of rational basis review—concluding that neither it nor the Supreme Court has recognized transgender status as a suspect class. “Until that changes, rational basis review applies,” the Sixth Circuit wrote.
That court further concluded that the Tennessee law treated similarly situated individuals “evenhandedly”—and that a law that treats individuals “evenhandedly” does not trigger heightened review.
In 2023, the Eleventh Circuit similarly concluded that Alabama’s ban on puberty blockers or cross-sex hormone treatments did not classify on the basis of sex or any other protected characteristic, and, thus, was subject only to a rational basis review.[5]
What the Supreme Court Did Not Decide
The Supreme Court’s decision in Skrmetti does not resolve questions in the following five key areas:
(1) Right to Privacy
Executive Order 14187 of January 28, 2025, “Protecting Children from Chemical and Surgical Mutilation,” directed the Department of Health and Human Services (HHS) to withdraw its March 2, 2022, guidance document titled “HHS Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy” (“2022 Guidance”). HHS did so in a notice dated February 20, 2025 (“2025 Recission Notice”).
Under “Basis for Recission,” the 2025 Recission Notice asserted that the 2022 Guidance “lacks adequate legal basis under federal privacy laws, including the [Health Insurance Portability and Accountability Act (HIPAA)] Privacy, Security, and Breach Notification Rules.” In the 2025 Recission Notice, HHS seemed to find the language in the 2022 Guidance unnecessary. The 2022 Guidance—as described by then-HHS Secretary Xavier Becerra—stated that “health care providers are not required to disclose private patient information related to gender-affirming care” and noted that “HIPAA prohibits disclosure of gender-affirming care that is [protected health information (PHI)] without an individual’s consent except in limited circumstances”:
[The Office for Civil Rights] reminds covered entities (health plans, health care providers, health care clearinghouses) and business associates that the HIPAA Privacy Rule permits, but does not require, covered entities and business associates to disclose PHI about an individual, without the individual’s authorization, when such disclosure is required by another law and the disclosure complies with the requirements of the other law. This “required by law” exception to the authorization requirement is limited to “a mandate contained in law that compels an entity to make a use or disclosure of PHI and that is enforceable in a court of law.” Where a disclosure is required by law, the disclosure is limited to the relevant requirements of such law. Disclosures of PHI that do not meet the “required by law definition” or exceed what is required by such law do not qualify as permissible disclosures under this exception.
(2) Parents’ Rights
Based on the Due Process Clause of the Fourteenth Amendment, the Supreme Court has recognized a parent’s fundamental right to direct the care, custody, and control of their children. However, the way that right extends in the context of gender-affirming care is a contentious one. The Skrmetti decision leaves that major issue yet to be decided.
Some assert that the promotion or protection of gender-affirming care for minors in federal mandates interferes with parental rights to be free of gender ideologies. Others have argued, for example, that an Idaho law banning gender-affirming care, HB 71, interferes with parental rights when those parents wish to choose gender-affirming care for their minor children. The Supreme Court, in the 2024 case of Labrador v. Poe, stayed a district court’s preliminary injunction of the Idaho law to the extent that it bars Idaho from enforcing any aspect of the law against any person in the state; the injunction remains in place pending appeal regarding the two minor plaintiffs.[6]
On March 18, 2025, Ohio’s Court of Appeals held that a state law banning gender-affirming pharmaceutical medical care for transgender adolescents diagnosed with gender dysphoria violated the Ohio Constitution. The Ohio court concluded that HB 68 violated the substantive due process right of parents to direct the care and upbringing of children under the state’s Due Course of Law Clause. To interpret the latter, the Ohio court looked to the decisions of the U.S. Supreme Court, noting “that parents have an ‘essential’ and ‘basic civil right’ to raise their children and a ‘fundamental liberty interest’ in the care, custody, and management of their children.”[7]
Applying strict scrutiny, the Ohio court refused to hold that the state’s interest in protecting children from allegedly dangerous medical treatments justified the categorical ban on puberty blockers and hormone therapy for minors diagnosed with gender dysphoria. And the court declined to limit parental rights to seek traditional medical treatments for their children: “[W]e conclude that parents have a fundamental right to seek medical care for their children, which naturally includes the right of parents to, ‘in conjunction with their [minor] child’s consent and their [medical providers’ recommendation], make a judgment that such medical care is necessary.’”
(3) Statutory Discrimination Analysis: Section 1557 and the Rehabilitation Act
Section 1557 of the Affordable Care Act of 2010 prohibits discrimination in race, color, national origin, sex, age, or disability in certain health programs and activities. Whether (1) Section 1557’s prohibition on sex discrimination extends to sexual orientation or gender identity, and (2) gender dysphoria is a disability under Section 504 of the Rehabilitation Act continues to be a subject fraught with debate. The 2022 Guidance answered the first issue in the affirmative and suggested that the second may apply.
Following the issuance of the 2022 Guidance, the U.S. District Court for Northern District of Texas vacated it on the grounds that Section 1557 of the Affordable Care Act does not prohibit discrimination on account of sexual orientation and gender identity and that the interpretation of sex discrimination that the Supreme Court adopted in the 2020 case of Bostock v. Clayton County does not apply to the prohibition of sex discrimination in Section 1557.[8] As the 2025 Recission Notice indicates, federal courts in states including Florida, Mississippi, and Texas followed the reasoning in deciding whether Section 1557’s prohibition on sex discrimination includes discrimination on the basis of gender identity.
The 2025 Recission Notice also asserted that “gender dysphoria likely does not meet the definition of a disability under Section 504 of the Rehabilitation Act” as the statute excludes “gender identity disorders not resulting from physical impairments.”
(4) Impact of State Constitutional Arguments
In the Ohio case above, the court also concluded that HB 68 violated the state Health Care Freedom Amendment—providing that “[n]o federal, state, or local law shall prohibit the purchase or sale of health care or health insurance” and also prohibits penalties for the same. “It is axiomatic that ‘we are not bound to walk in lockstep with the federal courts when it comes to our interpretation of the Ohio Constitution,’” the court wrote. “Thus, coextensive provisions under the Ohio and United States Constitutions do not foreclose the possibility that ‘[i]n some circumstances, rights afforded to people under the Ohio Constitution are greater than those afforded under the United States Constitution.’” Thus, states may adopt their own constitutional protections—even in light of this decision.
(5) Tension with State Laws
A number of states have laws that explicitly prohibit discrimination based on gender identity. It appears that the Supreme Court’s decision in Skrmetti will not impact the validity of those laws, but this may be an area of further litigation as states continue to take individualized approaches to regulating the provision of medical care.
What Happens Now?
The Skrmetti decision has implications well beyond the case due to the current administration’s initiatives against gender-affirming care for minors—including by executive orders—and subsequent policy statements and agency actions. These will be the subject of subregulatory guidance, rulemaking, and enforcement actions going forward. Currently, 27 states restrict youth access to gender-affirming care.[9] Meanwhile, 17 states and the District of Columbia have protections to ensure access to gender-affirming care.[10]
Those who practice in this area will have been watching this case closely but should be prepared to comply with the specific circumstances in their state. In Tennessee, for example, violations of SB1 could subject a health care provider to $25,000 for each prohibited treatment, professional discipline, and civil liability in private litigation.
As our colleagues mentioned in a 2024 podcast, it is important for providers to work collaboratively, as the complex web of state laws can make compliance difficult. Six states—Alabama, Florida, Idaho, North Dakota, Oklahoma, and South Carolina—already make it a felony to provide certain medical care to transgender youth, though some have argued that those penalties are not tied to evidence-based medicine.
Parents, children, and practitioners alike may face the prospect of having to move out of their home states to be able to access and/or provide such care. Additionally, according to the ACLU, the Skrmetti decision could have an even farther-reaching impact by allowing states to further limit access to abortion, in vitro fertilization, birth control, and other medical treatment.
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Epstein Becker Green Staff Attorney Ann W. Parks contributed to the preparation of this Insight.
ENDNOTES
[1] L.W. by and through Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023).
[2] 140 S. Ct. 1731 (2020).
[3] Kadel v. Folwell, 100 F.4th 122 (4th Cir. 2024); Hecox v. Little, 104 F.4th 1061 (9th Cir. 2024).
[4] Brandt v. Rutledge, 47 F.4th 661 (8th Cir. 2022).
[5] Eknes-Tucker v. Governor of Ala.., 80 F.4th 1205 (11th Cir. 2023).
[6] Labrador v. Poe by and through Poe, 144 S. Ct. 921 (2024).
[7] Moe v. Yost, 2025 Ohio-914 (10 Dist. 2025).
[8] Texas v. EEOC et al., No. 2:21-cv-00194- Z, ECF No. 74 (N.D. Tex. 2022); Bostock v. Clayton County, 140 S. Ct. 1731 (2020).
[9] The 27 states are Alabama, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.
[10] The 17 states are Arizona (by executive order), California, Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.
