The Roberts Court Just Took Away Healthcare from Kids Across the Country

It’s not justice. It’s not an objective reading of the law. So whose agenda is the Roberts majority serving?

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What happened?

The Roberts Court’s 6-3 decision today in United States v. Skrmetti to uphold bans on medical treatment for transgender minors is not surprising. That doesn’t make it any less shocking or outrageous.

Writing for the court’s right-wing supermajority, Chief Justice John Roberts said that Tennessee’s law, and those like it in 24 other states across the country, does not discriminate on the basis of sex or gender identity—and therefore does not violate the 14th Amendment’s Equal Protection Clause. This ruling threatens or removes access to evidence-based and medically necessary care for transgender youth across the U.S., including at least 110,000 kids living in states that currently have bans on gender-affirming healthcare.

The decision willfully ignores the obvious. As Justice Sonia Sotomayor wrote in dissent, the majority “obfuscates a sex classification that is plain on the face of this statute” and, in so doing, “authorizes, without second thought, untold harm to transgender children and the parents and families who love them.”

But Trump and his allies in the right-wing legal movement assembled the Roberts Court to do just that.

Who’s behind the case?

Skrmetti was brought by Tennessee Attorney General Jonathan Skrmetti, a close ally of court capture architect Leonard Leo and a member of the Republican Attorneys General Association, a group that helps elect far-right lawyers to the states’ highest law enforcement positions across the country and whose biggest funder is another Leo entity. Seventeen of the amicus briefs in this case attacking transgender rights were filed by parties with close ties to at least one justice on the Court. This includes ties to powerful friends and benefactors of justices, such as Leo and Harlan Crow.

The supermajority’s ruling in Skrmetti serves as a reminder that this Supreme Court will not protect the vulnerable among us. Only we, the people, can protect our rights and freedoms—and those of our families, friends, and neighbors.

Today’s decision is bad…and the Roberts Court may soon do worse

The Skrmetti decision is far-reaching, but it still didn’t reach far enough for half of the supermajority.

Justice Amy Coney Barrett, in a concurrence joined by Justice Clarence Thomas, wrote that transgender people should get virtually no protection at all from the Equal Protection Clause. Justice Samuel Alito, in his own separate opinion, said the same.

Chief Justice Roberts, meanwhile, focused his majority opinion on the law before the Court and left open the question of whether “transgender individuals are a suspect or quasi-suspect class.” For now, then, the circuits that do evaluate anti-trans laws using more rigorous “heightened scrutiny” under the Equal Protection Clause can continue to do so.

But there’s no reason to believe Roberts and the rest of the supermajority wouldn’t join Justices Thomas, Alito, and Barrett in the next case attacking transgender people. Such a two-step, after all, has been Roberts’s specialty in his Court’s assaults on campaign finance laws, voting rights, workers’ and labor rights, reproductive freedom, and more. And the full supermajority has already signaled its endgame by green-lighting Trump’s transgender servicemember ban despite the executive order’s clear anti-trans animus. The roadmap is clear.

Where do we go from here?

Transgender children and their families can still challenge bans on gender-affirming care, in Tennessee and elsewhere, by asserting their parental rights under the 14th Amendment’s Due Process Clause. That argument has found mixed success in the lower courts, and even though the Supreme Court declined to take up that question in Skrmetti, at oral argument, Justice Barrett made clear that the option remained open.

But it is not clear where the Roberts Court would land on the parental rights argument—and anti-trans plaintiffs, led by groups like Alliance Defending Freedom, have also seized on parents’ rights arguments to attack schools’ anti-bullying policies, finding a receptive audience with Justices Thomas and Alito. In another upcoming case, Mahmoud v. Taylor, the Roberts supermajority appears likely to issue a ruling that could effectively ban public school teachers from having LGBTQ+ inclusive books and other materials in their classrooms, based on claims that making this material available could violate parents’ rights.

No matter what any court does next, courts—especially the Roberts Court—cannot be relied on to protect American kids, families, and communities. Skrmetti is a reminder of the need for Americans to claim their role as constitutional actors. We, the People, have the power to protect each other. And Congress, as the People’s Branch, has a responsibility to check attacks on our freedoms and civil rights—not to write them off as “distractions.” If there were ever a time to cast off our attachments to unchecked judicial supremacy, it is now.

What can you do?

• Share resources on Skrmetti and gender-affirming care from Human Rights Campaign, the Campaign for Southern Equality, the Transgender Law Center, QueerMed, the LGBTQIA+ Health Education Center, and others.

• Contact your members of Congress and let them know that you expect them to use their power as the People’s Branch to ensure that all Americans, including trans children and adults, have access to the care they need.

  • Email your senator and tell them to oppose any version of the budget reconciliation bill currently advancing through Congress that contains any discriminatory exclusions of Medicaid coverage for trans people’s healthcare.

• Learn about how to testify before policymakers in support of trans rights from Advocates for Trans Equality.

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