What the SCOTUS Decision on Trans Care Means for Washington

The Supreme Court upheld Tennessee’s ban on gender-affirming puberty blockers, hormones, and surgery for anyone under 18. What does that mean?

The impact of this case, US v. Skrmetti, will have a tremendous impact on trans kids and their families living in the 27 states that have banned trans care in some way. Families with the means are likely to move to states where this medical care is legal. Those who can’t afford it may have no choice but to stay. The implications are serious.

It’s not good by any stretch of the imagination, but the ruling itself is narrow, legal experts and advocates say.

Protective laws in states like Washington are not “directly” affected by this decision, legal and policy experts say. This decision tells us nothing about other laws that discriminate against transgender people on the basis of sex, or how the Court is going to characterize those other laws. It also doesn’t tell us how the Court would rule in a case where it’s clear the law is motivated by animus, or hatred, a question before the courts in other trans rights cases.

Some Necessary Legalese

The question before the Court in US v. Skrmetti was whether Tennessee’s ban, SB1, violated the 14th Amendment’s Equal Protection Clause.

When a court is evaluating if a law like Tennessee’s violates this clause, it must decide if it distinguishes between people on the basis of a protected characteristic such as race or sex. Different characteristics are given different levels of judicial “scrutiny.” The higher the level of scrutiny, the more a government must do to prove its law is in the necessary interest of the state, several legal experts told The Stranger.

“Suspect” cases that involve race, religion, national origin and lack of citizenship are held to the highest level of scrutiny. “Quasi-suspect” cases on sex and gender are in the middle. “Rational bias,” applied when there is no suspect class, is the lowest bar of judicial review.

It takes very little to survive rational basis review. All a government like Tennessee’s has to prove is that its law is “rationally” related to a legitimate interest like regulating health care, which is exactly what happened in Skrmetti.

The Court ruled that Tennessee’s ban, which allows cisgender and intersex kids to get the same hormonal and surgical treatments for different medical reasons, did not violate the Equal Protection Clause because the law did not discriminate against transgender people’s gender or sex. It discriminated against their age and medical diagnosis, which are not protected characteristics.

“This 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. The voices in these debates raise sincere concerns; the implications for all are profound,” Chief Justice John Roberts wrote in the majority opinion. “The Equal Protection Clause does not resolve these disagreements. Nor does it afford us license to decide them as we see best.”

It’s tortured logic. There’s nothing fierce about the “debate” over trans medicine, which is neither new nor experimental. There are voices raising “concerns,” but they don’t carry the same weight as the scientific consensus that these treatments are safe and effective. The myth that trans youth are rushed into hormones and surgery has no basis in fact. Consider that Tennessee’s one dedicated gender clinic for kids performed about five top surgeries a year before Republicans pressured it to pause all surgeries in 2022.

The Justices voted along ideological lines. In her dissent, liberal Justice Sonya Sotomayor wrote the Court retreated from judicial review where it mattered most.

What Does This Mean For Other Cases?

Like the Dobbs decision on abortion, the Court has punted decisions about trans care for kids to the state legislatures, which has devastated trans people in red states.

But the decision doesn’t kill protective laws in blue states like Washington or prevent lawmakers from strengthening those protections.

It’s likely that opponents of trans care will argue the Skrmetti decision allows them to enact new laws without triggering heightened scrutiny, but an important legal question remains open, says Elana Redfield, Federal Policy Director at the Williams Institute, a think tank at University of California, Los Angeles School of Law that researches LGBTQ people.

“The Court notably, quite significantly, didn’t decide whether transgender status merits higher scrutiny, because in this case, they found the classification wasn’t based on transgender status,” she says. “Even though we saw some inklings from various members of the court as to how they might rule on the issue—its full factual development has not yet been presented to the Court.”

In fact, the Court noted repeatedly that it did not feel that intentional discrimination was raised in this case, which was striking, Redfield says. Discrimination was a big part of oral arguments, even if the Justices were ignorant of that discrimination. At one point, when Justice Amy Coney Barrett raised the possibility of creating a new “suspect” class for transgender people, she said she was unaware of any history of laws targeting transgender people before the military ban during Trump’s first term. ACLU Attorney Chase Strangio responded by reciting some of that history, including laws criminalizing cross-dressing and old statutes that threw gay and trans people into the same group.

“It seemed pretty clear that the parties were arguing that these bans were a form of discrimination,” she says. “It felt to me like a core component of the argument being made by both the US and the plaintiffs.”

Basically, if the court felt that wasn’t argued, the Equal Protection argument remains on the table for other trans medical cases, or for issues like sports and identification documents. There’s also the argument that even under rational basis, the law is motivated by a discriminatory animosity toward trans people.

There’s also the matter of President Donald Trump’s Executive Order to ban all forms of gender-affirming care for people under 19, which Washington, Oregon, and Minnesota are now fighting in federal court.

Equal Protection is part of their case—not under the 14th Amendment, but Equal Protection in due process under the 5th Amendment—but so is federal overreach. The lawsuit argues Trump doesn’t have the power to criminalize medical practices in Washington or enact funding restrictions over Congress’s head.

“The actual holding of the case really says nothing about the many other issues at play in the many other cases challenging the Trump administration’s assault on trans people and their humanity,” says Vanessa Hernandez, Integrated Advocacy Director at the ACLU of Washington.

What Does This Mean for Washington?

The decision does not directly affect Washington’s laws.

In this state, transgender people are protected under the Washington Law Against Discrimination and the Gender Affirming Treatment Act, which requires health insurers in this state to cover any and all trans care from surgery to laser hair removal.

Transgender people are already moving to flee discriminatory laws in red states. Danni Askini, Executive Director of the Seattle trans advocacy organization Gender Justice League, says about 2,000 of them have reached out to her organization for support in the last year.

The state can expect more kids and their families to come from states with bans like Idaho, Montana, Utah and Wyoming. There are questions as to whether our healthcare infrastructure can handle that influx of new patients, or what other tricks the federal government has up its sleeves. Anecdotally, advocates say we’re far from a crisis point, but they have heard of longer wait times to see doctors. A recent Williams Institute study that analyzed data from 133 gender-affirming care providers in states without care bans found that more than half reported more demand from children and adults due to recent legislation. They reported seeing hundreds of out-of-state patients. While most reported short waitlists, some were staggeringly long: 4 percent said over 300 people were waiting for an appointment.

Askini, who co-teaches a class on gender-affirming care at University of Washington School of Medicine, says many hospital systems in the area are working to train residents on trans care and expand continuing education for doctors.

But even Askini hasn’t been able to reestablish gender-affirming care since moving back to Washington three months ago.

“I’m scrounging my last [hormone] patches, cutting them in half, stretching them out, because it’s really hard to find a gender-affirming primary care physician,” she says. “I’m one of the most known trans activists in Washington state and even I can’t get primary healthcare.”

Gender Justice League recently issued a call for trans people to stockpile their hormones. It has serious concerns about access, given the federal government’s aggressive stance on trans people generally..

“I don’t think there’s reason to panic,” Askini says. “I think the biggest concern that I have is this opens the door and emboldens our opposition to try and pass an adult ban.”

Jaelynn Scott, Executive Director of Lavender Rights Project, which provides services to Black and Indigenous trans people, is concerned about the continued threats to federal funding putting indirect pressure on hospitals to “chip at the wall” of gender-affirming care, she says.

Seattle Children’s, an enormous research institution that depends on millions in federal grants, has already flipflopped on offering transgender surgery for youth since Trump took office.

“The recommendation from our organization is to lean into leadership and not panic,” Scott says. “We are very privileged here with an attorney general and a governor and a state that is supportive of our communities—and we need to be leading the way on how to resist. Instead of panicking, we need people to go into action and to start paying attention to their siblings in other states who will be facing immediate loss of access to care.”