Case Trends: Post-Dobbs and Skrmetti, State Courts Are Battlegrounds for Transgender and Reproductive Rights 

You’re reading our series on 2025 state constitutional trends. All cases are available in our curated State Case Database.

Three years after Dobbs v. Jackson Women’s Health Organization eliminated a federal right to abortion, the U.S. Supreme Court’s June decision in United States v. Skrmetti dealt another blow to bodily autonomy, upholding Tennessee’s ban on gender-affirming care for minors. As federal protections recede, state courts have become the frontline for both reproductive and trans rights — expanding protections under distinctive state constitutional provisions, deciding how far to depart from federal precedent, and determining who can challenge restrictive laws. Increasingly, rulings in one area shape the other, weaving a shared and evolving state constitutional landscape. Below is a sampling of the many cases that have grappled with these issues in the first half of this year.

State Privacy Rights

In February, a Montana trial court struck down a 2023 law defining the terms “female,” “male,” and “sex” as two binary categories based on reproductive capacity (sex chromosomes and gametes). The law inserted those definitions across the state code, affecting driver’s licenses, demographic records, and the state’s antidiscrimination law.

Plaintiffs challenging the law included the nonprofit Montana Two Spirit Society (representing indigenous individuals who identify with and embody both masculine and feminine spirits) along with a group of transgender, intersex, and nonbinary Montana residents.

The court held in Edwards v. Montana that the law facially violated the state constitutional right to privacy by interfering with individuals’ “ability to make personal and intimate decisions concerning their bodies and psyches.” It emphasized that Montana’s “unique” protection reflects a deep-seated “distrust of excessive government interference” and goes beyond the reach of the federal Constitution. In so holding, the court cited the state high court’s 2024 ruling in Planned Parenthood of Montana v. State, which recognized minors’ right to privacy and allowed them to obtain an abortion without parental consent under the state constitution.

The court also found as-applied state equal protection violations based on sex and cultural discrimination, noting again that the protection afforded by the state constitution was broader than the scope of the federal 14th Amendment. The court explained that the term “culture” was “incorporated specifically” into the provision to protect groups distinct from mainstream Montana, especially American Indians, and recognized that the Two Spirit plaintiffs’ identities “do not align” with laws rooted in the gender binary.

“Laws defining sex often take a sledgehammer to the state code, incorporating binary definitions into multiple areas of law,” explained University of Montana Professor Constance Van Kley, who wrote about the case for State Court Report. The Montana court found that intersex people, who are born with sex characteristics that evade traditional binary categorization, “were effectively defined out of the law,” Van Kley said.

In June, Montana’s high court drew on its expansive reading of its express privacy guarantee to strike down laws restricting abortion access. The laws included a 20-week abortion ban; restrictions on medication abortions, including a telehealth ban and 24-hour waiting period; and a requirement that providers give patients an opportunity to view an ultrasound and listen to a fetal heartbeat before proceeding with the procedure. 

Reaffirming its precedent interpreting that right to protect personal and procreative autonomy, the court found in Planned Parenthood of Montana v. State that the state had not demonstrated that the restrictions addressed a medically acknowledged, bona-fide health risk or that they were narrowly tailored to satisfy a compelling government interest. The court previously left in place a preliminary injunction blocking enforcement of the laws.

Health Care Freedom Amendments

An Ohio intermediate appellate court in March struck down a state ban on gender-affirming medical care for transgender youth in Moe v. Yost, holding that it violated parents’ fundamental right to seek appropriate medical care for their children and ran afoul of the state constitution’s “health care freedom” amendment.

The Ohio court sent the case back to the trial court to permanently block the state from enforcing its ban on puberty blockers and hormones “for the purpose of assisting the minor individual with gender transition.” The state attorney general has appealed, and the Ohio Supreme Court has paused the ruling while it considers the case.

Health care freedom amendments, which appear in six state constitutions, were adopted as “part of a conservative-led effort to limit the effect of the Affordable Care Act,” State Court Report’s Alicia Bannon explained. A decade and a half later, advocates are increasingly using them to challenge restrictions on gender-affirming care as well as abortion — in late 2024, for instance, a Wyoming trial court struck down an abortion ban based on a similar amendment. The high court heard oral arguments for the appeal in April.

Third-Party Standing

In January, the Georgia Supreme Court issued a ruling that has wide implications for who can bring claims challenging abortion restrictions and other civil rights challenges in the state’s courts.

The court in Wasserman v. Franklin County held that third-party standing doctrine was not compatible with Georgia’s constitutional standing rule requiring plaintiffs to assert their own rights. The ruling effectively ended more than 17 years of the doctrine’s application in Georgia. The court justified the decision as consistent with Georgia’s history and tradition, which it said allowed suits only to vindicate one’s own rights. It was a mistake, the court added, to “uncritically import” federal standing rules, including third-party standing.

While the underlying challenge in Wasserman had nothing to do with reproductive rights — the case concerned a landowner’s attempt to bring an equal protection challenge against her county on behalf of the would-be buyer of her property — the decision is having knock-on effects. In light of Wasserman, the court in February remanded an ongoing challenge to the state’s six-week abortion ban in a different case, Georgia v. SisterSong, directing the trial court to assess whether the plaintiff reproductive rights groups and medical providers have standing to challenge the ban. The ban remains in effect while the case proceeds.

Following Wasserman, the Georgia court set its focus on associational standing, which historically allowed organizations to sue on behalf of injured members. Expanding on a footnote that questioned the validity of associational standing following Wasserman’s ruling, the court in Republican National Committee v. Eternal Vigilance Action in June overturned 42-year-old precedent to hold that the Georgia’s NAACP chapter and the Georgia Coalition for the People’s Agenda did not have standing to assert the voting rights of its members. The court explained: “Wasserman’s reasoning that the federal doctrine of third-party standing has no place in Georgia law applies with equal force here, as federal associational standing is but a type of third-party standing.”

The Georgia court is not the first to grapple with questions about standing to challenge abortion restrictions post-Dobbs. High courts in Kentucky and North Dakota have also considered whether medical providers have standing to challenge state abortion bans; Kentucky’s court held they did not, while North Dakota’s allowed them to move forward with their claims. An appellate court in Kentucky, meanwhile, said that a Jewish plaintiff had standing to challenge the state’s abortion ban on religious liberty grounds, because she had embryos in storage, had cancelled plans for another IVF implantation, and feared the law might criminalize disposing of unviable or unused embryos.

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With the federal vacuum forcing states to chart their own course, state courts are increasingly drawing on their distinctive constitutional history and culture to shape the future of reproductive and trans rights. Some have used those traditions to fortify precedent and expand individual protections; others have invoked them to roll back rights and narrow the path for challengers. What’s clear is that state courts hold unprecedented power to shape individual rights in these areas — leaving a patchwork of rulings in their wake.

Chihiro Isozaki is a counsel in the Democracy Program at the Brennan Center for Justice.