What the U.S. Supreme Court's ruling on gender-affirming care ban means for Texas

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The U.S. Supreme Court ruled Wednesday that a gender-affirming care ban for minors in Tennessee was constitutional, effectively green-lighting a similar law in Texas and about two dozen other states.

The justices ruled 6-3 in Skrmetti v. United States that Tennessee’s ban does not violate the Equal Protection Clause of the U.S. Constitution and does not constitute discrimination on the basis of transgender identity.

While the ruling was not as wide-ranging as some LGBTQ advocates had feared, it represented a devastating blow for trans youth, their families and their allies, including doctors who offer gender-affirming care. Ian Pittman, an Austin attorney who represents many trans people, said the status quo hasn’t changed for Texans.

“What has changed is the potential hope someone who is a minor might have had, that they might have been able to get this care before they turn 18,” he said. “And for people who are in power in Texas, this ruling says there’s no moderation that they need to factor into their future legislative plans.”

In Wednesday’s ruling, Chief Justice John Roberts wrote that the case “carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field.”But having concluded that it does not meet the bar for higher scrutiny, he wrote, “questions regarding the law’s policy are thus appropriately left to the people, their elected representatives, and the democratic process.”

The liberal justices dissented, with Justice Sonia Sotomayor saying the ruling “abandons transgender children and their families to political whims.”

Texas’ law, like the Tennessee statute the court considered, prohibits doctors from prescribing medical treatments, like hormone therapy and puberty blockers, to help a minor transition. These treatments are recommended by all major medical associations to treat gender dysphoria, a medical condition related to the distress someone can feel when the sex they were assigned at birth doesn’t align with their gender identity.

Since Texas’ law went into effect, families have left the state rather than wean their children off of medical treatments that they say are life-saving. Texas Attorney General Ken Paxton has brought several lawsuits against doctors he alleges still provide these treatments in violation of the law.

Conservatives have argued these medical treatments are untested and pushed on children who are too young to realize the consequences, and contest the widespread support from what one lawyer for the state of Texas called “ideologically captured” medical associations. In Wednesday’s ruling, Justice Clarence Thomas endorsed this view, saying “the experts appear to have compromised their credibility.”

Texas’ law was challenged in state court on the grounds that it violated parents’ rights to make medical decisions for their children. The state Supreme Court disagreed, ruling 8-1 that right was not absolute in the face of “new and previously unconsidered questions.”

In the Tennessee case, lawyers for the U.S. government argued that the law amounted to sex discrimination because a child assigned male at birth could still get testosterone, for example, while a child assigned female could not. They also argued this was discrimination on the basis of transgender status, since minors could still get these same treatments for non-transition related care.

Roberts disagreed on all fronts. The Tennessee law “divides minors into two groups: those seeking puberty blockers or hormones to treat the excluded diagnoses, and those seeking puberty blockers or hormones to treat other conditions,” he wrote. “While the first group includes only transgender individuals, the second encompasses both transgender and nontransgender individuals.”

Texas state Rep. Tom Oliverson, a Republican from Cypress who carried Texas’ version of the bill in 2023, celebrated Wednesday’s ruling, saying on social media that it was a “big win for protecting Texas kids from harmful, experimental gender treatments!”

Notably, the justices did not strike at the heart of its most recent ruling on transgender issues, the 2020 Bostock v. Clayton County. In that case, the Supreme Court ruled, on a 6-3 vote, that discrimination against someone for being trans was a form of prohibited sex discrimination. Conservatives have argued this should be interpreted narrowly, as only applying to employment discrimination, while liberals read it as sweeping anti-discrimination protections for trans people. Roberts left that question unresolved in Wednesday’s ruling, saying it wasn’t necessary to address Bostock to conclude Tennessee’s law was constitutional.

Pittman said that represented a small silver lining, and a possible opening for future litigation. In an email to his clients sent just after the ruling came down, he said, “It is possible and perhaps even likely that this ruling will one day be overturned.”

“But it won't be while anyone who is a child today are still minors, so I want you to make whatever plans you need to make to protect your family,” he said.

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