The Supreme Court Could Block Gender-Affirming Care Next—Thanks to Dobbs

The Supreme Court began its new nine-month term on Monday and lived up to its reputation of creeping fascism, first by siding with Texas and allowing the state to continue denying life-saving, emergency abortion care—and then, by accepting a new case that wields the Dobbs v. Jackson Women's Health ruling to argue for a ban on gender-affirming health care in Tennessee.

In March 2023, Tennessee Governor Bill Lee signed SB 1, which prohibits health care workers from providing gender-affirming health care to transgender youth, including puberty blockers and hormone replacement therapies. (Minors who aren't trans are still allowed to receive these treatments.) SB 1, which forced trans youth to end their care by March, 31, 2024, also allows minors or their parents to sue trans health care providers if they've suffered "harm" following treatment. 

Then, in April 2023, in order to block SB 1, the American Civil Liberties Union, Lambda Legal, and the law firm Akin Gump Strauss Hauer sued Tennessee and the state's attorney general, Jonathan Skrmetti, on behalf of one doctor and three families of trans youth. In June 2023, a federal judge issued a decision that would have blocked the law, but Tennessee immediately filed a successful appeal. The U.S. Court of Appeals for the Sixth Circuit then allowed the law to go into effect on July 8, 2023—which, according to the New York Times, was the first time a federal court ruled that a ban on gender-affirming care could be constitutional. On June 24, the Supreme Court agreed to take on U.S. v. Skrmetti and will hear arguments in either December or January, per the ACLU.

On Tuesday, Tennessee filed its brief to SCOTUS arguing that they have a right to ban gender-affirming care for trans youth, specifically and concerningly citing the Dobbs v. Jackson Women’s Health decision that overturned Roe v. Wade. The state points to how Dobbs “reject[s] heightened scrutiny for sex-adjacent restrictions that draw no sex-based lines,” declining to classify abortion restrictions as sex-based discrimination; similarly, Tennessee argues that under Dobbs, the denial of trans health care to minors isn’t sex-based discrimination.

According to the ACLU, Tennessee's arguments are meant to fundamentally expand the scope of Dobbs, and realize legal experts’ worst fears about the 2022 Supreme Court ruling: that it would be wielded to attack a range of fundamental rights, from same-sex marriage and birth control to trans health care. For example, SB 1 directly targets trans girls and bars them from receiving prescribed estrogen because of their birth-assigned sex, while a cisgender girl can receive prescribed estrogen for any purpose due to her birth-assigned sex. The state’s attorneys clearly understand that Dobbs blew the door wide open for bullshit like this, and they’re fully prepared to take advantage of it.

And the Dobbs ruling isn't just threatening rights in the U.S.–in April, Uganda's highest court invoked Dobbs as reason to uphold the death penalty for “aggravated homosexuality," writing, “In [Dobbs], the US Supreme Court considered the nation’s history and traditions, as well as the dictates of democracy and rule of law, to overrule the broader right to autonomy."

Since 2021, 25 states have banned trans health care for minors, which medical experts say is life-saving for trans youth. These laws are proliferating across the country at an alarming rate, meaning the Supreme Court's ruling on Skrmetti will have far-reaching implications for youth access to gender-affirming care.

In September, the ACLU warned that the weaponization of Dobbs against trans people has been a trend over the last two years: “When arguing against transgender people and their families, states with bans like Tennessee’s have relied heavily on Dobbs. … Skrmetti will be a major test of how far the court is willing to stretch Dobbs to allow states to ban other health care." This case, the organization cautions, "could serve as a stepping stone towards further limiting access to abortion, IVF, and birth control.”

"We emphasize that our decision concerns the constitutional right to abortion and no other right," Justice Samuel Alito wrote in his Dobbs opinion. "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” But Dobbs killed Roe, and the rights established in Roe were expansive and fundamental, encompassing a wide range of other sexual privacy rights. And in the same ruling, Justice Clarence Thomas called the Supreme Court decisions that protected rights to birth control, same-sex sexual intimacy, and same-sex marriage “demonstrably erroneous.”