What happens after Skrmetti?

Even though the Supreme Court ruled in favor of states wishing to protect children from medical attempts to alter their sex characteristics, advocates on both sides of the debate say the debate is far from over.

Last week’s 6-3 decision in United States v. Skrmetti upheld a Tennessee law protecting youth and affirming states’ rights in establishing protections for gender-confused children. States have a patchwork of laws on the subject: 27 states have passed measures instituting at least some protections for children, according to the pro-LGBTQ Movement Advancement Project. The group says that 16 states have laws or executive orders that remove protections for children, and seven have no laws on the issue.

“It’s a big win, but we’re not anywhere close to resolving the problem nationwide,” said Jonathan Scruggs, senior counsel and vice president of litigation strategy with Alliance Defending Freedom.

A federal law would settle the matter, but most experts and advocates I spoke with said they aren’t holding their breath for one. This means that state legislatures’ decisions, medical experts’ response to the issue, and the Supreme Court’s choice of which cases to hear will determine the future of “gender-affirming care” for children in the United States.

Legal

The Skrmetti case asked the question of whether Tennessee’s law discriminated on the basis of sex; the justices ruled it did not.

Scruggs predicts that courts will apply this sort of logic outside of the medical context, and Justices Amy Coney Barrett and Clarence Thomas hinted that Skrmetti could have implications for transgender participation in women’s sports and single-sex restroom use. Earlier this week, ADF attorneys filed briefs in cases over men playing on female-only sports teams.

But the Supreme Court didn’t resolve all questions around transgender ideology. “One issue that Skrmetti left open explicitly was, ‘Is gender identity a protected class under the equal protection clause?’” Scruggs said. “That’s going to be an issue in these other cases.”

Josh Payne, a founding partner of the firm Campbell Miller Payne, said that last week’s decision will help his clients, detransitioners who regretted their transgender treatments and are now suing their doctors. The Skrmetti decision’s acknowledgement of the many health risks associated with cross-sex hormones and surgeries—including sterility, sexual dysfunction, and increased risk of cancer—reiterated what his clients have been saying all along, Payne said.

“Doctors and others who misled detransitioners by overstating the benefits or underplaying the risks will have to face justice,” he told me in an email.

Payne said the Skrmetti decision could open the door for states to expand protection against transgender interventions to include adults. But others I asked were unwilling to broach the idea publicly, suggesting that may still be a bridge too far.

Medical

Major professional medical associations expressed dissatisfaction over the decision. Pro-LGBTQ advocates say transgender interventions can reduce suicidal thoughts, though studies have shown little to no benefit. The American Academy of Pediatrics reiterated that the treatments are “medically necessary” for gender-confused youth and are “backed by decades of peer-reviewed research, clinical experience, and scientific consensus.”

Dr. Jared Ross, an emergency medicine physician in South Carolina and a senior fellow with the research group Do No Harm, said there is no consensus among medical experts. He pointed to countries like the U.K., Finland, and Sweden, which were leaders in the study of pediatric gender dysphoria. Now, all are scaling back their pediatric gender programs or increasing laws against the interventions for minors.

“We were not the global leaders in experimenting on gender-confused children,” Ross said of U.S. medical professionals. “We are today.”

Meanwhile, the Trump administration has pressured hospital systems to shutter their pediatric gender programs—even in states without protections for minors. Earlier this month, the Children’s Hospital Los Angeles announced it was closing its pediatric gender program, one of the largest and oldest in the country. Stanford Medicine, also in California, announced this week that it would halt its youth transgender program.

Other smaller hospitals are announcing program closures, and more are expected in the weeks and months ahead. Earlier this month, the Community Medical Center in Missoula, Mont., announced it will halt medical attempts to change the sex traits of children with gender dysphoria.

Ross expressed concerns that doctors may continue to prescribe these interventions to minors and skirt regulations by miscoding or misdiagnosing patients. He said Do No Harm plans to audit providers in states that have instituted protections.

Legislative

The Skrmetti decision will turn advocacy into a ground game, with groups crisscrossing the country, rallying state legislatures to pass legislation on the issue.

Jamie Reed, co-executive director of the LGB Courage Coalition said her organization will keep pushing to protect children from these treatments. The group has testified in 17 states that either have no law on the issue or “shield laws” that guarantee access for minors who wish to get treatments. She anticipates New Hampshire Gov. Kelly Ayotte will sign a new state law instituting protections for minors from puberty blockers and cross-sex hormones. The state already has protections for children against transgender surgeries.

Families
Debi Jackson, a mother of a child who identifies as the opposite sex, said some families are in “crisis mode” after the Skrmetti decision.

“Families like mine will continue to find ways to get our children the care they need and deserve,” she said. “If lawmakers can deny care based on ideology today, there’s nothing stopping them from targeting other groups—or treatments—tomorrow.”

But other advocates applaud the decision—and Tennessee’s protections for minors. Prisha Mosley, a detransitioner who was prescribed testosterone at age 17 and received a double mastectomy at age 18, is suing her medical providers.

“I will suffer for the rest of my life for believing, in my confusion, the people who perpetuated these cruel lies,” she said in a piece earlier this month for Fox News.

In a statement to WORLD, Mosley said she wants to see more states enact similar laws to help youth avoid going down the same path. “I hope that more states will … put their duty to protect children before ideology or politics.”

Reed, who is in a same-sex marriage with a woman who formerly identified as transgender, said that helping families with gender-confused children goes beyond legal decisions and legislation.

“Laws can only do so much,” she told me. “We also have to address the roots of the distress.”