In Blessing Youth Health-Care Ban, High Court Erases Transness

The power of identity has driven our nation’s civil rights movements. In the 1960s, Frank Kameny, the father of the gay rights movement was inspired by the decade’s “Black is Beautiful” campaign to create the slogan, “Gay is Good.” Women’s, disability, and poverty rights groups argued in the US Supreme Court that they were a cohesive and identifiable group, deserving of judicial protection.

Conservative religious movements have successfully reshaped statutes and legal doctrine in the last decades to suit their preferences. The law is built around the identity of various groups that form the American polity.

But on June 18, in denying that the Constitution’s Equal Protection Clause protected access to pediatric gender affirming care, the Supreme Court scrubbed the case of transgender identity altogether. On its telling, the Tennessee ban on care only targeted certain medical diagnoses of biological boys and girls. The Supreme Court didn’t just deny trans people equality—it stripped them out of legal existence.

The case, United States v. Skrmetti, concerned a Tennessee law that prevents minors from accessing any medical care that enables a minor “to identify with, or live as, a purported identity inconsistent with the minor’s sex.” Sex, in turn, is “a person’s immutable characteristics … as determined by anatomy and genetics existing at the time of birth.”

Parents argued that this law discriminated against their children based on both sex and transgender status and sued. Birth-assigned sex determined whether a child could access gender affirming care. A cisgender boy could get drugs for unwanted breast tissue (a condition called gynecomastia). A transgender boy needing drugs for the same reason could not. A cisgender girl could get drugs for unwanted hair-growth (hirsutism). A transgender girl could not. An open and shut case of sex and anti-trans discrimination.

But not for the conservative justices in the Supreme Court’s majority. Simply referring to sex didn’t imply unequal treatment based on sex. And because not all transgender children need or seek treatment, Tennessee’s law didn’t affect all transgender children, they concluded. Therefore, as far as the court was concerned, and despite the clear anti-trans bias in its legislative history, transgender identity was irrelevant to the ban.

Even if the statute had recognized transgender identity, the Constitution did not—as Justices Amy Coney Barrett and Samuel Alito wrote separately to emphasize. The Equal Protection Clause has historically provided special protections to groups the court has recognized as “discrete and insular minorities.” Racial minorities and women qualify for these special protections. Most other groups do not. And because there is a “huge variety of gender identities and expressions,” wrote Barrett, transgender people don’t form a “discrete group.”

In other words, transgender people were underdefined from the perspective of Tennessee’s statute—and overdefined from the perspective of the US Constitution. The burdens of the former didn’t apply to them, so they received no judicial cognizance. The protections of the latter didn’t apply to them so they received no judicial solicitude.

So far so good. But the fact that treatment turned on the sex a child was assigned at birth surely meant there was sex discrimination. Here, the Supreme Court simply punts the issue to medicine. Giving a cisgender boy medication so that he doesn’t have the distress of dealing with extra breast tissue, it held, is simply different from when a transgender boy seeks the same, because the underlying medical condition is different.

The court is wrong to paint with this broad brush: Lines among medical conditions are often unclear. Doctors regularly use the same diagnosis code when prescribing a drug for the same purpose—menstrual suppression, for example—no matter how the patient identifies. It also makes no sense to rely on medical discrimination to validate legal discrimination—if doctors suddenly used different diagnosis codes for the same cardiac events in men and women, it wouldn’t automatically justify different treatment.

But more importantly, the logic behind the Supreme Court’s reasoning erases transgender existence altogether. The court explained: “When…a transgender boy (whose biological sex is female)” seeks treatment, it is different from a “boy whose biological sex is male.” The court is willing to call the boy transgender, but for practical, legal purposes, the boy is really a girl. Biology is destiny. And even though research increasingly shows that there is often a biological component to being trans—biology, according to the Supreme Court, does not allow trans-ness.

All is not lost. In the decision, the court reaffirmed its 2020 decision stating that federal law protected transgender individuals from employment discrimination. Transgender people may be able to use statutes—including those targeting sex and disability discrimination—to overturn medical care bans. But anti-trans discriminators will now also write anti-trans legislation using medical language to disguise anti-trans animus. And the Constitution doesn’t protect trans people anyway.

If the court continues to disrespect, denigrate, and erase transgender existence, the battle will be a grueling one.

The case is United States v. Skrmetti, U.S., No. 23-477, decided 6/18/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Craig Konnoth is a professor at the University of Virginia School of Law.

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