Supreme Court Transgender Care Ruling Leaves Key Questions Open

The US Supreme Court’s recent decision that Tennessee can lawfully ban gender-affirming care for minors was a blow to groups advocating for transgender rights, but it left several issues open that are likely to spur further litigation, attorneys say.

The majority opinion was “very narrow,” said Jennifer Levi, the senior director of transgender and queer rights at GLAD Law in Boston.

The justices only reviewed and decided that Tennessee didn’t violate the 14th Amendment’s equal protection clause. Chief Justice John G. Roberts Jr., who authored the majority decision, “expressly avoided” issues not squarely raised in the petition for review, Levi said.

That leaves several legal avenues for transgender advocates to pursue, including issues already in the pipeline at the nation’s top court.

The justices are expected to decide Thursday if they’ll hear arguments in other transgender health-care cases, including whether federal laws such as the Affordable Care Act and Title VII of the 1964 Civil Rights Act prohibit anti-trans bias in health-care programs and outside the workplace.

Transgender minors’ parents also have asserted a due process right to control their children’s medical care.

Levi and John Bursch, senior counsel at Christian law firm Alliance Defending Freedom, predicted that the Supreme Court will grant review, vacate the underlying decisions, and send them back to the lower courts for a new look in light of United States v. Skrmetti.

Skrmetti‘s narrow scope reflects that the top court is moving slowly, deciding only discrete issues presented to it and not making broader legal pronouncements, Bursch said.

That’s a good way for the law to evolve, he said.

‘Longer Long Shot’

The cases with petitions before the high court challenging gender-affirming care bans for minors in Tennessee and Kentucky, L.W. v. Skrmetti and Doe v. Thornbury, asserted the laws violate parents’ 14th Amendment due process rights to direct their children’s medical care. That issue remains open.

During oral arguments in December, Justice Amy Coney Barrett noted that question wasn’t before the court and would have to be resolved in other suits, said Hila Keren, a professor at Southwestern Law School pointed out in a recent article for Bloomberg Law.

But Jeffrey Shulman, an emeritus professor at Georgetown Law, doesn’t think the parental rights claim “will fare any better than” the equal protection claim the high court did decide. “It may be even a longer long shot,” he said.

“Whether the Court uses rational basis review or something more rigorous, the arguments on behalf of state regulation will apply with equal force to this type of due process claim,” he said.

And it’s not just transgender health-care cases that could see the impact of the justices’ views on parental due process rights.

Those rights also are at issue in Montana v. Planned Parenthood of Montana, where the court is being asked to decide if a state can require a minor to get parental consent before obtaining an abortion.

Insurance Coverage

The Supreme Court’s decision in Skrmetti is also likely to affect pending disputes over coverage for gender-affirming care.

The justices have been asked to review the US Court of Appeals for the Fourth Circuit’s ruling last year in Kadel v. Folwell that a state employee health plan’s blanket coverage exclusion for gender-affirming care violates equal protection because it facially discriminates on the basis of sex and gender identity and isn’t substantially related to an important government interest.

Although Skrmetti may require the Fourth Circuit to walk back that decision, the lower court could still rule for the plaintiffs on another ground, such as a finding that cost-saving wasn’t a legitimate governmental interest or rationally related to the exclusion.

Crouch v. Anderson, decided in tandem with Kadel, involves the West Virginia Medicaid program’s gender-affirming surgery coverage exclusion.

It also cites equal protection as well as discrimination claims under Section 1557 of the ACA. That provision bans discrimination in health-care programs and references federal laws against age, race, color, national origin, sex, and disability bias.

None of these statutes—the 1964 Civil Rights Act’s Title VI, the Age Discrimination Act of 1975, Title IX of the Education Amendments Act of 1972, and Section 504 of the Rehabilitation Act—expressly forbid bias based on sexual orientation or gender identity, and regulations interpreting them have varied. But LGBTQ+ advocates argue that Section 1557 does prohibit such discrimination, regardless of the regulations.

A federal district court granted the plaintiffs summary judgment on the ACA question in Kadel, an issue that wasn’t appealed.

The Fourth Circuit affirmed in Crouch that West Virginia’s Medicaid exclusion violated the ACA, and also held that it violated the Medicaid Act’s availability and comparability requirements, which generally require state programs to cover beneficiaries and medical services equally in their “amount, duration, and scope.”

Those provisions also are at issue in Hamso v. M.H., a challenge to the Idaho Medicaid program’s coverage exclusion for gender-affirming care.

Eleven states exclude transgender-related health-care from their Medicaid programs, according to the Movement Advancement Project. About 1.8 million LGBTQ+ adults rely on Medicaid to pay for health care, the Williams Institute at UCLA School of Law says.

Bostock Standard

The top court also expressly didn’t decide whether Bostock v. Clayton County applies outside the workplace. The justices said there that Title VII precludes discrimination against transgender workers.

Opponents of transgender rights argue the ruling is limited to hiring and firing decisions and doesn’t apply to the terms and conditions of employment, such as employee health plans.

Unlike the other cases, the issue isn’t currently on the high court’s docket. But the justices could reach it next term, after the Eleventh Circuit decides Lange v. Houston County, Georgia

A full panel of the court’s active judges heard oral arguments in February on whether an employee health plan that excluded coverage for gender-affirming surgery violated Title VII.

The case is United States v. Skrmetti, 2025 BL 211307, U.S., 23-477, 6/18/25.