The Supreme Court tossed out several lower court rulings that favored transgender people in four states, less than a week after the conservative majority of justices upheld a ban on gender-affirming care for transgender youth.
The high court on Monday overturned rulings that stopped discriminatory policies barring coverage for gender-affirming care in state health insurance plans in North Carolina, West Virginia and Idaho from going into effect. Supreme Court justices also vacated a ruling from an appeals court that found that Oklahoma’s executive order denying transgender people from amending the sex marker on their birth certificates was unconstitutional.
In each of these cases, the lower courts found that policies excluding coverage for medical care or denying access to proper documentation to transgender people violated the Constitution’s equal protection clause. The lower courts must now reexamine these cases in light of the Supreme Court’s June 18 decision that upheld Tennessee’s ban on puberty blockers and hormone therapy for trans minors. The 6-3 ruling in United States v. Skrmetti did not weigh in on other laws involving transgender people, but it did close certain legal pathways to challenge other state bans on gender-affirming care for minors.
In the majority opinion written by Chief Justice John Roberts, the court held that Tennessee’s law did not discriminate on the basis of sex or transgender status. Roberts suggested that the question of treatments like puberty blockers and hormone therapy for minors should be left to the “democratic process,” echoing similar reasoning Justice Samuel Alito made when striking down the federal right to abortion in the Dobbs decision.
It remains to be seen how exactly Skrmetti will impact ongoing challenges to other state bans on gender-affirming care, and the decision may spark fear in providers in states where access to care is protected. However, the high court is using the ruling to say cases that have favored the equal protection claims of transgender plaintiffs must be revisited.
The justices have ordered the 4th U.S. Circuit Court of Appeals to reevaluate its decision that North Carolina and West Virginia’s policies of refusing coverage for gender-affirming health care with state-sponsored health insurance plans are discriminatory.
“This means another round of legal proceedings to defend the right to nondiscriminatory access to health coverage. Throughout the proceedings of these cases, each lower court recognized that these exclusions are unlawful, and we will continue fighting to ensure that no one is denied medically necessary care because they are transgender,” Lambda Legal, Advocates for Trans Equality, said in a statement.
The 9th U.S. Circuit Court of Appeals will have to review a case out of Idaho that questions whether the state’s ban on Medicaid coverage for certain gender-affirming surgical procedures is discriminatory.
Lastly, the 10th U.S. Circuit Court of Appeals must review its ruling that blocked Oklahoma’s executive order banning transgender people from changing their gender on their birth certificates.
Karen Loewy, the director of the constitutional law practice at Lambda Legal, told reporters on a press call last week that nothing in Skrmetti was “a green light” for states other than Tennessee to enforce its ban on gender-affirming care for minors. Lawyers are still able to leverage certain theories and litigate trans rights issues in lower courts, Loewy said.
The Supreme Court has not yet taken action on several cases involving state bans on transgender athletes, but could decide as early as this week whether it will take up the issue in the next term.
The end of the Supreme Court’s summer term has dealt several blows to the rights of trans Americans far beyond the ruling allowing a state ban on gender-affirming care for minors to stand. Last week the court ruled that parents can opt their children out of elementary school material that includes books with LGBTQ+ themes on the grounds of religious exemptions. In May the Supreme Court allowed Trump’s ban on transgender members of the military to formally go into effect.