Are State Courts More Protective of Transgender People than Federal Courts?

The U.S. Supreme Court ruled on Tuesday that state laws prohibiting trans women and girls from participating on female sports teams do not violate the Equal Protection Clause — the seventh Supreme Court ruling curbing the rights of trans people in just the past 14 months. Since May 2025, the Supreme Court has allowed the Trump administration to ban trans people from serving in the military, upheld a Tennessee law banning gender-affirming care for trans minors, given anti-LGBTQ+ parents a veto over LGBTQ+-inclusive content in their children’s classrooms, endorsed Trump’s policy requiring trans people to list their sex assigned at birth on their passports, reinstated an injunction against policies barring schools from outing trans students to their parents against students’ wishes, and determined that Colorado’s ban on anti-LGBTQ+ conversion therapy must be subjected to strict scrutiny, a form of judicial review that almost no law survives.

However, there may be some cause for optimism. In an article published in The Virginia Journal of Social Policy & the Law, I conducted a comprehensive survey of state court cases that impacted the rights and lives of trans people between 2022 and 2024. The survey showed state courts have an essential role to play in protecting trans people in an increasingly hostile political environment. Amongst some ominous signs for trans rights, there were important signals of hope in the survey.

I reviewed hundreds of state court cases from across the country, including cases at all court levels, from state trial courts to state supreme courts. Almost 55 percent had a positive impact on trans lives, while about 30 percent had a negative impact. The remaining 15 percent had a mixed, unclear, or neutral impact. Because I included rulings from trial and appellate courts that could be overturned on appeal to a higher court, these data capture a specific moment in time that is subject to change, especially as anti-trans rhetoric and sentiment are on the rise. The full dataset can be found here.

Reasons for Hope

One of the most hopeful areas in my survey involved the rights of incarcerated trans people. Specifically, in multiple cases, lower courts in Oregon held that denying gender-affirming care to trans people behind bars violated a state constitutional provision that guarantees that “no person arrested or confined in jail shall be treated with unnecessary rigor.” State Court Report has previously written about the promises of unnecessary rigor clauses to improve conditions for incarcerated people, and these cases reveal that those promises extend to the unique needs of incarcerated trans people.

Another positive trend emerged in child custody cases, which frequently resulted in orders that protected the safety and interests of trans children, often from unsupportive parents. For example, in Riley v. Graves, a Michigan appellate court granted sole custody of a trans child to their mother, recognizing that the father’s insistence that the child conform to their sex assigned at birth had caused the child to become suicidal.

In the realm of anti-discrimination law, the progression of the case Cooper v. USA Powerlifting through Minnesota’s court system tracks ongoing debates about the scope of anti-discrimination protections for trans people. JayCee Cooper, a trans female weightlifter, was banned from competing as a woman by USA Powerlifting. She sued under the state’s anti-discrimination laws, which include protections for trans people. A trial court issued a strong opinion in her favor, finding that USA Powerlifting’s sole motivation was anti-trans animus, but an appellate court reversed, reasoning that USA Powerlifting was not discriminating based on transgender identity but based on “biology.” In 2025, the Minnesota Supreme Court split the difference, holding that USA Powerlifting had engaged in anti-trans discrimination but leaving the door open for a future ruling that USA Powerlifting had a “legitimate business interest” in ensuring the fairness of their competitions that justified that discrimination — implying there was some merit to biology-based arguments even though research has consistently demonstrated that trans women do not have an unfair biological advantage over cis women. Following the high court’s ruling, USA Powerlifting settled with Cooper.

One final area where at least some state courts expanded protections for trans people concerned gender-affirming healthcare for trans minors. In December 2024, the Montana Supreme Court ruled in Cross v. State that the state’s ban on such care violated the Montana Constitution’s explicit privacy guarantees, which include protections for medical decision-making. A few months later, in Moe v. Yost, an Ohio appellate court found the state’s ban violated the state constitution’s parental rights protections and its health care freedom amendment, which was passed in 2011 as part of a conservative effort to limit the reach of the federal Affordable Care Act. However, the Ohio Supreme Court quickly stayed the ruling; the high court heard oral arguments in the case earlier this year.

Setbacks for Trans Rights

Aside from the notable exceptions above, state courts during the survey period more often upheld bans on gender-affirming care for minors. The Texas Supreme Court, for example, ruled in State v. Loe in 2024 that the state’s gender-affirming care ban did not violate the Texas Constitution’s guarantees of equal protection and parental rights.

There is reason to fear that state courts will only become more hostile to gender-affirming care: The survey covered a time period before the U.S. Supreme Court’s 2025 decision in United States v. Skrmetti, which held that gender-affirming care bans for trans minors did not violate the federal Constitution. Though state courts need not look to federal interpretations when considering state constitutional claims, one state supreme court has already followed in the U.S. Supreme Court’s footsteps post-Skrmetti: In E.N. v. Kehoe, the Missouri Supreme Court relied heavily on Skrmetti in rejecting a state constitutional challenge to laws banning gender-affirming care for minors and Medicaid coverage for such care at any age. A lower court in North Dakota similarly looked to Skrmetti in upholding a ban on gender-affirming care for trans minors. The North Dakota Supreme Court heard oral arguments this week in that case, T.D. v. Wrigley.

Another important, developing issue for trans rights is the use of trans students’ chosen name and pronouns in schools, especially after the U.S. Supreme Court’s ruling in Mirabelli v. Bonta. The Court relied on parents’ right to raise their children as they see fit to reinstate an injunction against a California policy barring school officials from disclosing a student’s pronouns to their parents without the student’s consent. During the period of my survey, a trial judge in Wisconsin used similar logic to strike down a school pronoun policy but went even further, concluding that a student’s pronoun usage was a medical decision that belonged to their parents. This ruling was not appealed.

A 2023 Virginia Supreme Court decision limited the ability of schools in Virginia to protect trans students who are misgendered by teachers. In Vlaming v. West Point School Board, a majority of the court held that firing a teacher who refused to use a trans student’s pronouns based on his religious beliefs about gender violated the state constitution. The court found that using incorrect pronouns was not an “overt act against peace and good order,” so requiring the teacher to use the student’s pronouns impermissibly interfered with his religious beliefs and practices. It also held that “forcing” him to use correct pronouns constituted government-compelled speech on the “divisive issue” of gender identity.

Finally, trans people’s attempts to change the gender listed on their IDs was a fraught issue throughout the survey period. In In re Correction of Birth Record of Adelaide, for example, the Ohio Supreme Court left in place lower court rulings denying a transgender woman’s request to change the sex marker on her birth certificate, after failing to form a majority on the merits. Only one justice of seven made clear that she would have ruled in favor of the petitioner, however; of the other six, three said they would have ruled against her on the merits and three would have held the court did not have jurisdiction to hear the case at all.

Looming Threats

The outcome of the Ohio gender marker case was not its only troubling feature. The three-justice minority that said appellate courts had no jurisdiction to review the trial court’s denial of the trans plaintiff’s gender change petition based their opinion on the lack of an adversarial party to the appeal — logic that would prevent any and all future denials of gender change petitions from being appealable. Similar reasoning appeared in state courts prior to my survey: In 2021, one justice on the Utah Supreme Court argued that the lack of adversity inherent in gender change petitions prevented any court, including trial courts, from having jurisdiction over them. This “non-adversity” logic has the potential to severely restrict the ability of trans people to affirm their identity on state-issued identification documents such as birth certificates and drivers’ licenses.

Another issue to watch relates to choice of law, or which state’s laws should apply when a legal dispute involves more than one jurisdiction. Like in the abortion context, some states have restricted access to gender-affirming healthcare while others have passed shield laws that protect individuals who seek or provide gender-affirming care from out-of-state legal actions. Though no case has explicitly addressed conflicts between state laws on trans rights, at least one Texas custody case in my survey touched on the issue. In In re Younger, a father requested a court order forcing his children, one of whom is trans, and their mother to move back to Texas from California because he was afraid that California’s trans refuge law would allow the trans child to receive gender-affirming care over his objections. The Texas Supreme Court denied the father’s request without comment and with no noted dissents. Two concurring justices explained that the mother had conceded she was bound by a previous Texas court order that prohibited either parent from providing gender-affirming care to the child without the other’s consent but pointed out that lurking in the background of the case was the federal Constitution’s Full Faith and Credit Clause, which requires states to respect each other’s laws and judicial rulings. Future cases may more squarely tee up a clash between the anti-trans laws of states like Texas and the pro-trans laws of states like California.

Additionally, an emerging strategy by the anti-trans movement is to threaten medical providers that offer gender-affirming care with potential malpractice liability if one of their patients later “detransitions,” in an attempt to deter such providers from providing gender-affirming care to anyone, including adults, in the first place. There was one such suit during my survey period, but it was dismissed on procedural grounds. I expect to see more such cases in the coming years.

Finally, a seemingly evergreen issue in all courts is the treatment of trans people with respect and dignity during judicial proceedings. Federal courts have repeatedly misgendered trans litigants in written opinions; a dissenting judge on the U.S. Court of Appeals for the Ninth Circuit used language so offensive in a case about trans rights that he received a rebuke from more than two dozen of his colleagues. But one Florida appellate court went further, suggesting that a judge simply respecting a trans person’s identity constituted judicial bias. In this child custody case, the court held that a father who opposed his child’s gender transition had a reasonable fear of not receiving a fair hearing before a trial judge who had used the trans child’s preferred pronouns and other language consistent with the child’s gender identity. A dissent noted that all the trial judge had done to show “bias” was treat the trans child with respect — something that should be the minimum requirement of all courts.

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In a world that increasingly devalues trans lives, state courts seem to be one of the last remaining avenues for protecting trans people. But that avenue is not guaranteed. Keeping it open is up to advocates, policymakers, judges, and all of us who care about equality and dignity. Whether state courts will hold that line — or simply mirror the U.S. Supreme Court’s recent trajectory — will likely define the next chapter in the struggle for trans rights.

Morgan Munroe was an intern at the Brennan Center for Justice and a student in the Brennan Center’s Public Policy Advocacy Clinic at NYU Law School.