Andrew Allard '25
Editor-in-Chief
In just two weeks, the Supreme Court will hear arguments in United States v. Skrmetti, a case that could reshape the legal landscape for trans youth across the country. At issue is the constitutionality of Tennessee’s ban on gender-affirming care for minors. UVA Law Professor Craig Konnoth, who wrote an amicus brief for a group of experts on gender-affirming care, says Tennessee is likely to win.
Speaking at a panel hosted by the Lambda Law Alliance at UVA last Thursday, Konnoth predicted that the Supreme Court would uphold Tennessee’s gender-affirming care ban. Konnoth said the Court would likely hold six-to-three that strict scrutiny doesn’t apply, allowing them to uphold the law under rational basis review. “I think we’re gonna lose,” Konnoth said, echoing the sentiment of LGBT lawyers in D.C. whom he informally surveyed. “There were a few people who were optimistic, but a majority of people are pessimistic.”
Still, Konnoth did not expect a sweeping ruling that would settle the constitutionality of discrimination based on gender identity. “I do think that biological differences will be invoked to help narrow the scope of the ruling,” said Konnoth. That would prevent the Court from reaching the more controversial issue of the Fourteenth Amendment’s prohibition on sex discrimination. In 2020, the Court held in Bostock v. Clayton County that Title VII’s protections against sex discrimination extended to gender identity. Since Bostock, whether the same logic extends to the Fourteenth Amendment has been a hotly contested question.
Wyatt Rolla ’13, the ACLU of Virginia's senior transgender rights attorney and a lecturer at the Law School, emphasized that any loss in Skrmetti would be “catastrophic.” Rolla added that gender-affirming care providers are already under pressure. “Providers in Virginia are completely overwhelmed. . . . People are traveling from Florida, they’re traveling from Arkansas. We’re the only state in the South to provide this care.”
Despite Professor Konnoth’s grim outlook, both he and Rolla highlighted weaknesses in Tennessee’s legal arguments. “There’s some pretty damning evidence of what the legislature intended in passing that law,” said Rolla, arguing that the law could even fail under the highly deferential rational basis review because it appeared to be motivated by animus. And Professor Konnoth highlighted the United States’ argument that the Tennessee law is overt sex discrimination. “You say sex right there in the statute. There’s no two ways about it. You’ve discriminated based on sex.”
As UVA Hospital pediatrician Dr. Julia Taylor noted, Tennessee’s law does not prohibit gender-affirming care for patients whose gender identity comports with their sex assigned at birth. Gender-affirming care for cisgender individuals is widely practiced, Dr. Taylor explained. “Gynecomastia in young men, the reduction of breast tissue, is a surgical operation that is offered to cisgender individuals almost without question. Hormonal therapy is used often, usually in cisgender females . . . with a menstrual-related problem that doesn’t match with their peers,” said Dr. Taylor. Professor Konnoth added that gender-affirming care for cisgender individuals numerically outnumbers similar treatment for transgender individuals.
Regardless of the Court’s decision in Skrmetti, Trump’s recent electoral victory may have already handed Tennessee a win. Rolla noted that the Supreme Court granted certiorari at the request of the United States, not the transgender plaintiff. “There’s no uncertainty about what the position of the Department of Justice will be after Trump takes office,” said Rolla. With Trump’s inauguration scheduled in late January, the Department of Justice may be positioned to seek a withdrawal from the case before the Court has issued its opinion. That could lead to a “wonky procedural legal question,” Rolla explained.
The incoming Trump administration may also adopt new regulations or sign laws that restrict the availability of gender-affirming care nationally. Rolla said that President Trump could enact a national restriction modeled on the Hyde Amendment that would restrict the use of federal funds for gender-affirming care. An even more draconian option, pulling federal funding for private healthcare providers that offer gender-affirming care, has also been proposed.
“We already saw the budget riders in 2024 that tried to do that. So this is not a hypothetical fringe strategy. It is a real policy proposal,” said Rolla. Dr. Taylor added that restrictions on federal funding could cause a national collapse in gender-affirming care for trans youth and adults. “If you pull Medicare funding, large hospitals may fold,” said Dr. Taylor.
While the effect on trans youth will be most immediately felt, a win for Tennessee in Skrmetti could reach beyond gender-affirming care. “It’s not just trans people,” said Rolla. “It is the ability to make medical decisions about your body, about your family structure. The kinds of scaffolding they are building will impact people far beyond trans youth.”
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