Parental Rights, Free Speech Issues Survive Trans Care Decision

A day after the US Supreme Court’s ruling in US v. Skrmetti, Arkansas hurried to submit the decision to the US Court of Appeals for Eighth Circuit as part of an appeal that could wind up as the next landmark case for transgender minors’ access to health care they need.

A full panel rehearing of Brandt v Griffin is pending before that court, and it exposes two key issues that weren’t covered by the decision in Skrmetti.

In its letter, Arkansas argues that Skrmetti, which dealt with a Tennessee ban on gender-affirming care for minors, “reinforces” its “arguments that Arkansas’s similar law is constitutional.”

This statement is too sweeping because Skrmetti only relates to one out of three challenges to the constitutionality of Arkansas’s ban. Indeed, Brandt may become the case that would send the issue of gender-affirming bans’ constitutionality back to the Supreme Court.

Arkansas correctly points out that the constitutional challenge to Tennessee’s ban survived review under the equal protection clause. And the conservative supermajority controlling the court decided the ban doesn’t discriminate based on sex or transgender status.

This troubling outcome notwithstanding, the full panel of the Eighth Circuit must now decide two additional challenges to the Arkansas ban on gender-affirming care.

Skrmetti says nothing regarding those other challenges because the Supreme Court limited its review of the Sixth Circuit’s decision to only one aspect. A year ago, the court granted the Biden administration’s petition, which focused exclusively on the issue of discrimination.

Accordingly, the court heard arguments and ruled merely on this matter. Its narrow ruling can’t award Tennessee, Arkansas, or any of the more than 20 states that enacted bans on gender-affirming care a broader constitutional pass.

Two challenges remain highly relevant. First, the Eighth Circuit must still consider a challenge based on the due process clause of the Fourteenth Amendment. Second, a challenge based on the First Amendment is also awaiting a decision.

Due Process Challenge

Under the due process clause, the Arkansas parents of the minors deprived of necessary treatment have argued the ban severely violates their parental rights. Their claim relies on a tradition and history of more than a century in which courts have recognized and protected parents’ fundamental rights to direct the medical treatment of their children.

It is important to recall that in Skrmetti, the Tennessee parents of the minors harmed by a similar ban have included an identical argument regarding the ban’s constitutionality. After the Sixth Circuit rejected all their claims, they petitioned the Supreme Court to review this decision and specifically raised the ban’s violation of their parental rights.

However, the court inexplicably never acted on these petitions, which at least formally still appear on the court’s docket. Indeed, during the oral arguments in Skrmetti, Justice Amy Coney Barrett went out of her way to emphasize that “the parental rights question is not before the court” and, therefore, it “would be open to parents to continue to press that point in other cases.”

Nor can Skrmetti’s reasoning rescue or redeem legal bans nationwide from the heightened scrutiny that follows infringement on parental rights.

Despite their zeal to unsee discrimination where it plainly exists, the conservative justices never accepted the “circular” logic of the Sixth Circuit (in Justice Sonia Sotomayor’s words). Instead, they adhered to the structure of conventional constitutional analysis.

While the Sixth Circuit reasoned that constitutional rights aren’t implicated because Tennessee reasonably regulated a medical issue, the Supreme Court corrected the error. It first asked whether constitutional rights were implicated and only then turned to the question of reasonability. Unfortunately, raising the questions in their appropriate sequence didn’t lead the court to the right answer.

As it handled the first question, the court introduced a contorted analysis that uncompellingly denied the existence of constitutionally suspicious classifications. Therefore, the court affirmed Tennessee’s ban after subjecting it to the lowest and most relaxed standard of review, a rational basis inquiry.

Yet, in the context of the due process challenge, following the same order of questions should make it much harder to manipulate the first one. The bans directly and bluntly infringe on fundamental parental rights. This means that under the majority’s method in Skrmetti, Arkansas’s ban must be subject to heightened scrutiny, which it is unlikely to survive.

First Amendment Challenge

In addition to parental rights, Skrmetti doesn’t release the Eighth Circuit from considering the challenge to Arkansas’s legal ban based on the freedom of speech.

In Brandt, doctors who treat minors with gender dysphoria argue the ban directly prohibits their speech based on content and viewpoint. They point out that under the ban, they can’t make referrals for “gender transition procedures,” although consultations advancing other ways of coping with gender dysphoria are allowed.

Not only is this a weighty challenge that is still undecided, but its consideration is highly significant for other pending cases. Particularly, the Supreme Court has already agreed to hear in the next term similar free speech claims coming from conservative providers who wish to treat gender dysphoria with talk-based conversion therapy.

If Skrmetti can’t foreclose the high court’s review of such claims, it surely shouldn’t prevent their constitutional review by the Eighth Circuit.

At the end of her dissent in Skrmetti, Sotomayor bemoaned the authorization of “untold harm to transgender children and the parents and families who love them.” But, as devastating as Skrmetti is, the majority’s refusal to admit discrimination is at the core of blanket bans on gender-affirming care doesn’t make these bans otherwise constitutional.

The other two challenges remain relevant, require judicial review, and will likely reach the Supreme Court sooner or later.

The case is United States v. Skrmetti, U.S., 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

Hila Keren is a professor at Southwestern Law School and a visiting scholar at the American Bar Foundation. She studies inequalities created or supported by the law while proposing and advocating necessary reforms.

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