Supreme Court orders another review of major transgender cases after upholding Tennessee’s ban on minors’ gender transitions

The Supreme Court has thrown several major transgender rulings back to the lower courts, ordering a fresh look in light of its recent decision upholding Tennessee’s ban on irreversible gender-transition procedures for minors.

The court this week tossed decisions stemming from cases in West Virginia, North Carolina, Idaho and Oklahoma that sided with transgender people, ranging from changing sex on birth certificates to government health insurance for transgender procedures.

The reviews of the cases will unfold following the Supreme Court’s 6-3 landmark ruling in United States v. Skrmetti in June, in which it upheld Tennessee’s ban on puberty blockers and hormone therapy for minors.

When the legal landscape changes – as it did in U.S. v. Skrmetti – it is not uncommon for the justices to remand cases to the lower courts to apply new legal standards to them. 

Heritage Foundation senior legal fellow Thomas Jipping told The Lion in an interview that the legal question in the Skrmetti case “was essentially whether under the 14th Amendment, sex is the same as gender.” 

“The Supreme Court has said that laws that discriminate on the basis of sex are going to be pretty hard to justify. So if gender is the same as sex, then laws based on gender will be tough to justify. The Supreme Court said, ‘No, they are not the same. Laws that relate to gender are much easier for legislatures to pass and to justify them than the other,’” he said, noting that gender comes up in many contexts in both legislation and court cases. “The Supreme Court answered a very general question and how that applies in individual cases in these different contexts, we’re going to find out.” 

Jipping said now that the Supreme Court has answered the important question in the Skrmetti case, it’s up to the lower courts to apply it in the various gender cases before them.  

“The Supreme Court sent a message, an answer to this legal question, and I think they expect lower courts to act accordingly, and it will affect both how lower courts decide these cases and whether the Supreme Court will accept more cases related to gender in the future,” he said. “So we’re just at the very beginning of a whole series of things that have to happen to know how this is going to play out.” 

The Tennessee case before the Supreme Court centered around the state’s 2023 law restricting gender-transition interventions for youth, procedures that the state has said are “risky and unproven.” One of 27 states with similar restrictions, Tennessee has noted the procedures can result in “permanent physical changes and have life-altering effects, including irreversible loss of fertility.” 

As he delivered the court’s opinion, Chief Justice John Roberts noted 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.” 

“Our role is not ‘to judge the wisdom, fairness, or logic’ of the law before us,” he wrote, “but only to ensure that it does not violate the equal protection guarantee of the Fourteenth Amendment. Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process.”