This Supreme Court case could impact transgender health care in the Midwest

On Dec. 4, the U.S. Supreme Court will take up one of the most hot button health care issues right now: medical care for transgender youth.

The Biden administration is suing on behalf of trans youth and their families in Tennessee over the state's gender affirming care ban in the U.S. v. Skrmetti case.

The court's ruling could affect the health care access of the nearly 1.6 million transgender Americans of all ages across the U.S., including in the Midwest where gender-affirming care is banned in several states like Indiana, Kentucky, Missouri, Iowa, Ohio, Nebraska and Oklahoma.

The Checkup’s question is: What is at stake in this case for people's health care access in the Midwest and across the U.S.?

Lizzy McGrevy, Side Effects Public Media's community engagement specialist, spoke with Ryan Levi, producer at the health policy news organization Tradeoffs, about that.

This transcript has been edited for length, style and clarity.

Lizzy McGrevy: Hi Ryan! Thanks for joining us again on The Checkup. Can you start off by defining gender affirming care for us?

Ryan Levi: Yeah, so gender affirming care is this big umbrella term that really kind of encompasses several different kinds of medical care that helps someone's physical appearance line up with their gender identity.

So, the elements that we hear about most often, and that are banned in these state laws, are things like puberty blocking medications, hormone therapy –– estrogen and testosterone –– and in rare cases, gender-affirming surgeries.

In 2021, which is when we have the best data, there were about 42,000 diagnoses of gender dysphoria among minors. That's the clinical condition where someone has distress arising because of a mismatch between their body and their gender identity. And of those 42,000 diagnoses, there were about 1,400 prescriptions for puberty blockers and 4,000 for hormones. So, it's a pretty small fraction of transgender kids that are actually getting this type of gender-affirming care.

A lot of this care really is just kind of conversations with providers talking through questions about gender, helping kids and their families think about what is the appropriate course of action for them.

McGrevy: Can you give us an update on what medical experts are saying about gender-affirming care for minors?

Levi: Yeah. So, the evidence here is hotly debated and very contentious.

What we can say is that almost every major medical group in the U.S. supports gender-affirming care for minors –– the American Medical Association, American Psychiatric Association, the top pediatrics associations. They all point to studies showing that there is very high satisfaction and very low regret among trans kids and their families when it comes to getting this care. Studies have shown that hormone therapy in particular leads to reductions in depression, anxiety and suicidality.

On the other side, though, opponents of gender-affirming care say that those studies are poor quality and that the evidence overall remains unclear. There are just too many unknowns, and they also say that this care can cause physical and psychological harm. But some experts push back strongly on that.

But the uncertainty there has been enough for policymakers in the United Kingdom, several European countries and obviously many states here in the U.S. to restrict or ban this care.

McGrevy: So there's a lot of uncertainty about this, it sounds like, but in the meantime, the Supreme Court will take up this U.S. v Skrmetti case case. Can you give us a bit more insight into this case? 

Levi: Yeah, so, this stems from Tennessee's ban on gender-affirming care, which they passed in 2023. That law, like many of these bans, prohibit doctors from providing puberty blockers, hormone therapy or gender-affirming surgeries to transgender minors.

A few trans young people and their families sued Tennessee, along with advocates and the federal government, and got a federal judge to actually stop this law from going into effect back in 2023. Then, the state appealed, a higher court overturned that and the law went into effect. Now, the Biden administration is taking this to the Supreme Court to try to get this law struck down.

McGrevy: And what are opponents of Tennessee's ban saying about this? 

Levi: Yeah, so they say that this is a clear example of sex discrimination, and that's important, because in the legal world, if a state passes a law that treats people differently based on their sex, there is a higher burden or a higher bar that the state has to clear to prove that there's a good reason to have that kind of discriminatory law.

And so, the federal government is arguing that these bans, and specifically Tennessee's ban, require that higher level of scrutiny and that they do discriminate based on sex because they say that trans kids under these laws are banned from getting care that cisgender kids can get.

“There really is no way for a doctor to decide who is going to get access to care without looking at the sex of the patient before them,” Katie Eyer, a professor at Rutgers Law School, says. “So, that's really just straightforward differential treatment of people for the same treatments based on what sex they are.”

McGrevy: Well, I'm going to go out on a limb and guess that not all legal experts agree with Katie on this. What else are you hearing?

Levi: Yeah, so the other side, Lizzy, says that this is not about sex. This is about things that the state does all the time –– regulating what kids can do and regulating what medical care can happen in their states.

“There are certain things kids can't do, they can't vote, they can't drive a car, and can't get married,” Jim Blumstein, who is a law professor at Vanderbilt University, says. “Parents cannot say to a child, ‘You don't have to go to school’. Then the government can make you go to school.”

McGrevy: The Supreme Court will hear this case in December, and I'm sure they'll hear from a lot more people. What are the different outcomes and scenarios that we can expect? And this is set to be heard in December. So, does the incoming Trump administration play into this at all?

Levi: There are about three high level ways that the supreme court could rule on this case.

They could rule for the federal government and strike down the law. That would likely lead to the end of these kinds of blanket bans across the country.

They could side with Tennessee and uphold the law, which would –– in addition to keeping these gender-affirming care bans in place –– also provide some more legal support to other laws targeting the transgender community that states have passed. Laws that say which bathrooms they can use or which sports teams they can play on. There's also some concern from legal scholars that a ruling for Tennessee could threaten federal anti-discrimination protections for transgender patients, as well as open the door to states banning gender-affirming care for adults, which we've already seen be attempted in Florida and Missouri.

And the third option here is a bit more of a middle of the road approach. And this would involve the Supreme Court saying that, yes, this law is an example of sex discrimination, so it requires that higher level of proof. But they would send the case back down to a lower court to actually decide whether this law meets that higher level, and whether Tennessee can prove that they have a good enough reason to ban this care for transgender kids.

You mentioned President-elect Donald Trump and what his administration could do. They could change the federal government's position on this, which could open the door to the justices on the Supreme Court dismissing the case and avoiding making any kind of ruling. It's still too early to know exactly what will happen, but the election definitely throws another wrinkle into this case.

McGrevy: Thank you for this information, Ryan. 

You can listen to more of Ryan Levi’s reporting on this case on the latest episode from Tradeoffs.

If you have questions for The Checkup about healthcare, healthcare policies or want to know more about some viral Tik Tok health claim, let us know. You can email lmcgrevy@wfyi.org. 

The Checkup by Side Effects Public Media is a regular audio segment on WFYI's daily podcast, WFYI News Now.

Side Effects Public Media is a health reporting collaboration based at WFYI in Indianapolis. We partner with NPR stations across the Midwest and surrounding areas — including KBIA and KCUR in Missouri, Iowa Public Radio, Ideastream in Ohio and WFPL in Kentucky, WGLT in Illinois and KOSU in Oklahoma.