Skrmetti and the Future
In the wake of the devastating decision in US v Skrmetti, what are the further legal ramifications for other cases centered around the rights of transgender people?
Protesters with Gender Liberation Movement gather in front of the Supreme Court in response to US v Skrmetti. Shortly after, nine protesters were arrested, including author Allison Chapman.
Photo by: Alexa B Wilkinson - @framed.unrest
by Allison Chapman
On June 30th, The Supreme Court of the United States (SCOTUS) released an order vacating three lower court rulings on transgender rights related cases and remanded them back to the lower courts to reconsider in light of US v. Skrmetti. “After any substantive decision, the Supreme Court often takes the procedural step of providing lower courts the opportunity to address whether its decision changes anything about those lower courts’ rulings.” wrote Peter Renn, Senior Counsel at Lambda Legal in a response to emailed questions. While it’s impossible to predict exactly how things will play out, let’s look at the specifics of these court cases to better understand some of the potential outcomes, opportunities, and risks.
Legal Concepts
To understand this analysis you must first understand the legal concepts of equal protection and the different levels of scrutiny the court can apply.
The final sentence of section 1 of the 14th Amendment states “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This is known as the equal protection clause. According to Cornell Law Institute this idea of equal protection means that “the governing body state must treat an individual in the same manner as others in similar conditions and circumstances.” This simple idea has been a core part of constitutional law and the basis of groundbreaking civil rights rulings such as Brown v Board of Education (1954) and Obergefell v Hodges (2015). However, in practice it’s much more complicated.
The 14th Amendment. Source: https://constitution.congress.gov/constitution/amendment-14/
Different methods or levels of scrutiny are applied in cases involving the equal protection clause to determine the constitutionality of a law that allegedly discriminates against a group of people. You might be familiar with the term from the documentary titled Heightened Scrutiny that followed Chase Strangio and US v Skrmetti (2025). There are three distinct methods, strict scrutiny, intermediate scrutiny, and rational basis scrutiny. Each level of scrutiny applies to different groups of people and has increasingly difficult hurdles a law must overcome in order to be ruled as constitutional.
Levels of Scrutiny. Source: https://jdadvising.com/two-minute-mbe-question-constitutional-law-equal-protection/#toggle-id-1
The highest level of scrutiny is strict scrutiny, which comes with the most difficult hurdle to overcome. Strict scrutiny typically applies only to laws that interfere with fundamental rights, laws that discriminate against people based on race and ethnicity, or laws that deal with national origin and alienage. In situations where strict scrutiny is applied it requires that the government that established the law prove that the law was defined in a way that only restricts the group to the level that is necessary to meet a government’s compelling interest. According to the Free Speech Center at MTSU, “An interest is compelling when it is essential or necessary rather than a matter of choice, preference, or discretion.” When you think of strict scrutiny, think about cases like Loving v Virginia (1967) and Brown v Board of Education (1954).
The middle level of scrutiny is intermediate scrutiny, which still has a rather high bar to reach before a law is ruled constitutional. Intermediate scrutiny applies typically to situations where people are discriminated against based on sex/gender (like women’s rights) or legitimacy of children. It requires the government to prove that the law is substantially related to an important government interest. Some examples of situations where the courts have applied intermediate scrutiny are in situations that prevent teen pregnancy, public health issues, and diversity through single-sex education. This was the level of scrutiny that Chase Strangio and the ACLU were arguing to have applied to US v Skrmetti (2025).
The lowest level of scrutiny that can be applied is rational basis scrutiny. It includes any groups of people not included in intermediate or strict scrutiny. Rational basis scrutiny requires the plaintiff, the person challenging the law, to prove that the law being challenged is not rationally related to legitimate government interest. In other words, this shifts the burden of proof onto the plaintiff to prove the government is in the wrong, compared to the other two levels of scrutiny which requires the government to prove that it is not wrong. The bar is also substantially lower than intermediate scrutiny in that it also requires that there be some legitimate justification for enacting the law. This is the level of scrutiny that was applied to US v Skrmetti (2025).
Fowler v Stitt (2023): A Case About Identity Documents
In Fowler v Stitt (2023), the 10th Circuit Court of Appeals overturned a lower court ruling and decided that an executive order and policy issued by the Governor of Okalahoma was in violation of the 14th Amendment in regards to sex discrimination under intermediate scrutiny. The executive order and policy prohibited gender marker changes for transgender people on state birth certificates. Additionally, It held that the policy had no rational relation with any legitimate government interest, meaning it also failed under rational basis scrutiny.
As you may recall, the Supreme Court determined that in U.S. v Skrmetti (2025), that the gender affirming care ban for minors in the State of Tennessee did not meet the threshold of intermediate scrutiny under the 14th Amendment. If you apply the logic that the Supreme Court applied in Skrmetti to this case, it quickly undermines the 10th Circuit's reasoning for considering this under intermediate scrutiny. In fact, this exact logic was already applied to the case by Justice Hartz in his dissent of the 10th Circuit’s ruling! Justice Hartz lamented “No person, either male (at birth or at present) or female (at birth or at present) can obtain an amended birth certificate changing gender. As I asked at the outset of this partial dissent, which sex is discriminated against?” His dissent ends with the statement “Perhaps one day we will get clarification from the Supreme Court.” Unfortunately, that day did indeed come.
However, the organization leading this case still appears confident that the case will see a positive outcome. Peter Renn, Senior Counsel at Lambda Legal told Assigned Media, “The Supreme Court held in Skrmetti that Tennessee’s law merely regulated medical treatment and thus did not discriminate against transgender people. That argument ultimately has no relevance here, where medical treatment is not at issue.” He went on to explain, “Oklahoma stripped transgender people of their ability to access basic identity documents, which are critical to their ability to safely navigate through modern life, simply because they are transgender. There is thus no question that the government has engaged in discrimination here.” In the end, the fact that this case has already been determined to fail even under rational basis scrutiny may prove to be a well needed safety net. However, that can’t be necessarily said about the other cases remanded by SCOTUS.
Kadel v Folwell (2022) and M.H. v Magni Hamso (2022): Gender Affirming Care and Insurance Coverage
The Supreme Court vacated and remanded two other decisions back to their respective lower courts, a combined decision referred to as Kadel v Folwell (2022) but also includes an additional case Anderson v Crouch (2022), and M.H. v Magni Hamso (2022). Both of these cases concern prohibitions on insurance coverage including gender affirming care on healthcare plans.
The 4th Circuit Court of Appeals ruled in Kadel v Folwell (2022) and Anderson v Crouch (2022) that banning coverage for gender affirming care is a violation of transgender people’s 14th Amendment rights and ruled that “in this case, discriminating on the basis of diagnosis is discriminating on the basis of gender identity and sex” and thus subject to intermediate scrutiny. This is nearly identical to the logic rejected in U.S. v Skrmetti when they determined that gender affirming healthcare for minors was not subject to intermediate scrutiny! The combination of this decision not making any determinations under rational basis scrutiny along with a large amount of the opinion based upon logic that was rejected by SCOTUS is concerning and leaves this case potentially vulnerable to being overturned.
However, the 4th Circuit Court further held that in Anderson v Crouch (2022) West Virginia exclusions of gender affirming care in its state’s medicaid program was in violation of the Medicaid Act and Affordable Care Act. This is a situation that was not considered by the Supreme Court in Skrmetti and thus it may increase the chances of it being upheld after it is reconsidered by the court.
The legal world is built upon years of precedent and rulings. When a case like Kadel is overturned it can have a cascading effect across the entire country. This is something Alejandra Caraballo, a civil-rights attorney and nationally recognized LGBTQ+ rights advocate knows all too well, “...we're about to see decades of precedent carefully built up be dismantled in the next year. Everything from healthcare access to gender marker changes to non-discrimination laws and bathroom access. SCOTUS just declared open season on us,” she wrote in a post on Bluesky.
In a similar fashion, M.H. v Magni Hamso (2022) held that intermediate scrutiny applied to Idaho Medicaid’s ban on gender affirming care. “As alleged, the policy of treating certain surgeries as “cosmetic” only when treating gender dysphoria creates a classification on the basis of transgender status and sex, which was clearly subject to heightened scrutiny under binding circuit precedent.” Here again, we find that the court relies on logic in conflict with the logic presented in Skrmetti in regards to the level of scrutiny to apply in this scenario. However, the court could still find that their original logic still applies given that Skrmetti dealt with healthcare for minors whereas this case deals with adult gender affirming healthcare.
Additional Cases and Where This Leaves Us
Unfortunately but unsurprisingly, these are far from the only cases potentially affected by Skrmetti. “Those opposed to equality for transgender people are already busy at work trying to stretch Skrmetti beyond its four corners” said Renn. Additional cases challenging gender affirming care bans all the way to the military ban on transgender people are already seeing briefings filed from both sides attempting to show how Skrmetti affects or does not affect their case. In fact, there are over a dozen cases currently being watched closely to see how courts rule now in light of Skrmetti.
According to Renn, “the Supreme Court was clear that its narrow decision was tied to the specific context of medical treatment for transgender adolescents.” However, it has yet to be seen whether the lower courts will agree. As with most legal matters, the devil is in the details. Transgender rights are in the most immediate danger in cases involving healthcare and reliance on the definition of gender dysphoria.
A few days after vacating the rulings in these three cases the Supreme Court also agreed to hear Little v. Hecox (2023), to potentially determine if transgender sports bans are a violation of transgender people’s equal rights under the 14th Amendment. It’s clear the Supreme Court isn’t finished assisting the Trump regime in tipping the scales by stripping the rights of the most vulnerable.
Where does this leave the trans community? Skrmetti was a stinging blow to transgender rights that will continue to have lasting and rippling impacts throughout the legal field. It’s also likely that more rights will be lost in the coming months and years. However, we will not go down without a fight. Lawyers like Chase Strangio of the ACLU and the attorneys at Lambda Legal will continue to fight tirelessly in the courts to defend transgender rights. Outside of the courts, it is the duty and right of those living under an oppressive government to rise up and resist oppression. We must stand together for ourselves and our neighbors. The fight is not over, in fact, it can be the beginning. That’s up to you. How are you going to respond?
Allison Chapman (she/her) is a LGBTQ+ Legislative Researcher and Transgender Advocate. Her work has been featured in publications such as Reuters, Washington Post, Slate, Truthout, and more. To learn more about her work you can visit her website https://allisonchapman.lgbt