Youth Trans Care Ruling Boosts State Power Over Medical Experts

The US Supreme Court’s decision upholding Tennessee’s ban on gender-affirming treatment for transgender youth is the latest indicator of the federal judiciary’s growing deference to states on politically volatile areas of medical care.

In his opinion for the conservative majority in United States v. Skrmetti, Chief Justice John Roberts wrote that Tennessee fairly “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,” and that European studies the state cited “underscore the need for legislative flexibility in this area.”

Health policy attorneys and researchers say the ruling goes against determinations made by the American Academy of Pediatrics, American Medical Association, and other leading health organizations that deem treatment for gender dysphoria, including hormones and puberty blockers, as appropriate and medically safe for minors.

“‘It’s very clear here that this is not about medicine and science at all,” said Kellan Baker, executive director of the Institute for Health Research and Policy at Whitman-Walker.

The ruling is part of a trend of the judiciary increasingly giving states flexibility to regulate areas of medicine where there are not clearly established constitutional protections, according to legal analysts. It follows a series of decisions, including a federal judge’s 2023 order against the Food and Drug Administration’s approval of the abortion pill mifepristone, that observers argue will embolden state lawmakers to further restrict medical care with which they disagree.

“Simply blessing Tennessee’s law shows that the court really doesn’t want to be in the business of trying to decide whether state legislatures are acting rationally, and I think that’s going to be a problem for vulnerable populations who need access to care,” said Nicole Huberfeld, co-director of Boston University’s Program on Reproductive Justice.

Twenty-seven states have enacted policies or laws curbing youth access to gender affirming care, according to KFF.

‘De-legitimize’ Medical Care

States have historically held authority in regulating the practice of medicine. But courts’ willingness to defer to states’ judgment on hot-button medical issues is a relatively recent phenomenon, lawyers say.

Huberfeld said the first major shift was in the Supreme Court’s 2007 ruling in Gonzales v. Carhart, where she said the court dismissed physicians’ testimony and upheld the federal ban on “partial-birth abortion,” a non-medical term anti-abortion groups use to refer to a dilation and extraction procedure later in pregnancy.

Roberts and other conservative justices who wrote concurring opinions in Skrmetti cited Gonzales in defending Tennessee’s authority to make certain gender-affirming care unavailable for transgender youth.

“The prospect of courts second-guessing legislative choices in this area should set off alarm bells,” Justice Amy Coney Barrett wrote in her concurring opinion after citing the 2007 ruling.

The ruling in Skrmetti is “the result of yet another success on the part of the pro life movement to sort of de-legitimize anyone who provides medical care that may be politically disfavored,” Huberfeld said.

Andrew Twinamatsiko, a director of the Center for Health Policy and the Law at Georgetown University’s O’Neill Institute, also sees connections to US District Judge Matthew Kacsmaryk’s mifepristone ruling, as well as the Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo, which cut down on the authority courts had long granted to federal agencies on areas of statutory uncertainty.

“With Chevron gone, you see courts substituting their own judgments for those made by career civil servants with scientific expertise,” Twinamatsiko said, referring to Chevron deference, named for the high court’s 1984 ruling in Chevron USA v. Natural Resources Defense Council Inc., which was overturned in the Loper Bright ruling.

Science in Courts

Justices cited European studies that Tennessee presented to argue there’s uncertainty over the safety and effectiveness of certain gender-affirming care for youth.

Among these was England’s Cass Review, a government-commissioned report that recommended prioritizing mental health care over medications and other gender-affirming care for youth experiencing gender dysphoria.

Chase Strangio, co-director of the ACLU’s LGBTQ & HIV Project and the first openly transgender individual to argue at the Supreme Court, told reporters after the ruling that the court didn’t look at studies the legal team presented showing the risks of interrupting access to gender-affirming care, including increased rates of suicidality and other mental health issues.

The American Academy of Pediatrics said in a statement it remained committed to helping transgender youth despite Skrmetti.

Meanwhile, Justice Sonia Sotomayor in her dissent asked “how much weight” courts should give to medical association judgment over the studies provided by those defending gender-affirming care bans.

However, Jonathan Scruggs, senior counsel and vice president of litigation strategy at Alliance Defending Freedom—the Christian legal group behind the mifepristone challenge—said over the past few years, medical groups have been acting as “advocacy organizations.”

“The credibility of these groups has really been hurt by their own actions,” Scruggs said.

Thomas Jipping, a senior legal fellow at the Heritage Foundation, said the court’s role in Skrmetti wasn’t to weigh in on how Tennessee reviewed scientific evidence.

“States have always had the authority to regulate the medical profession, and that includes deciding when certain procedures or the way certain procedures are done should be either limited or prohibited,” Jipping said in an interview.

Shaping Future Laws

Skrmetti gives state lawmakers and interest groups a blueprint for how to defend additional restrictions on gender-affirming care, analysts say.

“All legislatures now have to do is to frame the laws as involved with gender dysphoria, or use the medical terminology,” said Craig Konnoth, a University of Virginia law professor.

Huberfeld agreed, noting that courts will be asked to weigh in on matters that involve balancing state legislative arguments with medical expertise.

“States have authority to regulate medicine, and that has historical basis in fact, but that doesn’t mean that states can enact laws that are completely divorced from evidence-based policy,” Huberfeld said.