State Constitutional Protections for Transgender People After Skrmetti

The U.S. Supreme Court heard almost two-and-a-half hours of oral arguments last week over a Tennessee law banning gender-affirming care for transgender youth. Should the Court uphold the ban under the federal Constitution, many battles over trans rights will move into state courts — much like how the Court’s decision in Dobbs v. Jackson Women’s Health shifted efforts to protect abortion rights to the states.

The law at issue in U.S. v. Skrmetti prohibits medical professionals from providing care like hormone therapy or puberty-delaying drugs to transgender kids suffering from “discomfort or distress from a discordance” between their birth “sex and asserted identity.” But the law allows those same treatments for cisgender children to address conditions like precocious puberty.

Three transgender kids, their parents, and a doctor sued, claiming the ban violated the federal Equal Protection Clause because it discriminates on the basis of sex. As a result, they said, it must pass “heightened scrutiny,” which requires Tennessee to show the law is substantially related to achieving an important state goal. The state claimed the law draws distinctions based on the medical purpose of the treatment, not sex, and so must only withstand rational basis review — the least exacting standard a federal court may apply, which virtually all laws survive.

The last three years have brought an explosion of state-level anti-trans legislation. In addition to laws limiting healthcare for trans kids — 32 passed across 25 states — states have barred trans girls from participating in girls’ sports, denied students name and pronoun autonomy, prohibited trans people from using public restrooms that match their gender identity, and more. According to the Trans Legislation Tracker, about 150 anti-trans bills have become law in 27 states since the start of 2022.

To date, state courts have had limited opportunities to consider state constitutional protections for trans people. But the handful of recent cases considering legislation targeting trans people — including several that have reached state supreme courts — may provide hints about what a state constitutional strategy could mean for the future of trans rights.

Setbacks and successes under state equal protection theories

State constitutional equal protection challenges to anti-trans laws — analogous to the federal claim in Skrmetti — have had varying outcomes.

In the first equal protection case before a state supreme court, the Texas high court this year upheld a ban on certain medical treatments for trans minors. Relying on the federal appellate court’s opinion in Skrmetti that sustained the Tennessee ban, the high court held the Texas law did not constitute sex discrimination because it applied equally to both girls and boys seeking gender-affirming treatment.

Similarly, an Ohio trial judge rejected the claim that a bill that banned both gender-affirming care and female trans students’ participation on female sports teams violated the state constitution’s equal protection guarantees. He also cited the lower federal court’s Skrmetti decision in holding that the law did not discriminate on the basis of sex.

A lower court in Montana, however, held that a ban on gender-affirming care for trans minors violated the state constitution’s equal protection clause. The court held that the law discriminated based on transgender status — and that such discrimination is necessarily a form of sex discrimination. The court made clear that Montana’s equal protection clause “requires greater protection than its federal counterpart” and analyzed the law under strict scrutiny, the most rigorous form of judicial review. On Wednesday, the Montana Supreme Court upheld the lower court’s ruling, although it did so without addressing the equal protection claim. Instead, it affirmed the ruling by agreeing with the lower court that the law likely violated the state constitutional right to privacy.

Courts in Utah and Iowa have also held that legislation targeting trans people violates state equal protection guarantees. A Utah court said forbidding trans girls from participating in girls’ sports was unlawful sex discrimination. An Iowa judge struck down a law prohibiting the use of state funds to pay for gender-affirming surgeries for Medicaid recipients. Notably, the judge found that gender identity was its own suspect class entitled to heightened constitutional protections, not simply a subspecies of sex-based classifications.

Equal protection challenges to laws restricting people’s ability to change their gender designation on their driver’s licenses have been less successful. A lower court in Indiana upheld a prohibition on issuing non-binary “X” gender markers because non-binary identity was not a constitutionally protected class. Similarly, a Kansas trial court allowed a requirement that driver’s licenses be issued only with a driver’s sex as assigned at birth because it applied equally to every single person applying for a driver’s license.

Unique state constitutional provisions

Several trans rights cases have relied on provisions of state constitutions that have no federal equivalent, like single-subject requirements and so-called healthcare freedom provisions, enacted in a handful of states following the passage of the Affordable Care Act as part of a Republican effort to limit the federal law’s reach.

The Montana Supreme Court, for example, held this year that barring trans women from participating in women’s college sports was unconstitutional because the state constitution vests authority over college athletics in the state Board of Regents, not the legislature.

Meanwhile, advocates challenging anti-trans legislation as violating state constitutional requirements that laws pertain to only one topic have, so far, not been successful. The Nebraska Supreme Court determined that the subject of a bill that banned both gender-affirming care and abortion could be fairly described as, simply, medical care. And the same Ohio judge who rejected the equal protection challenge to the law regulating both healthcare for minors and trans girls’ participation on sports teams said the bill dealt with a single subject: regulating trans people.

The Ohio judge also found the law did not violate the state’s healthcare freedom amendment. He said that because the law imposed penalties on doctors who provided gender-affirming care, it fell within the amendment’s carveout allowing laws that punish medical wrongdoing.

Although most of these claims have failed, there have been too few cases to date to draw a conclusion about the viability of trans rights cases brought under unique constitutional provisions. Protections with no federal counterpart might give advocates more flexibility and creativity in protecting trans rights. In particular, there is reason to believe healthcare freedom challenges to laws limiting care for trans people could get traction before other judges or in other states — last month, a trial judge in Wyoming struck down the state’s abortion ban based in part on that state’s Affordable Care Act-era constitutional right to healthcare freedom.

Parental rights under state constitutions

State courts have also considered arguments over how anti-trans laws impact parents’ right to raise and care for their children without undue governmental interference.

Some parents — like the plaintiffs in the Texas gender-affirming care case — have fought for their ability to openly support their trans kids and provide them with necessary medical treatment. However, in that case, the Texas Supreme Court ruled that parental rights could not abrogate the legislature’s ability to regulate “novel treatments for a novel condition.” (In contrast, a lower court in Texas affirmed orders temporarily preventing the enforcement of Gov. Greg Abbott’s policy directing a state agency to conduct child abuse investigations of parents who support their children’s gender-affirming care, holding that the policy likely chilled parents’ ability to exercise their constitutional right to make medical decisions for their children in reliance on the advice of medical professionals.)

Parental rights have also been the basis of claims by the anti-trans set, who argue that policies they deem favorable to trans people infringe on their right to raise their children as they see fit. Most commonly, parents have challenged school policies authorizing nondisclosure to a child’s parents of that child’s use of a different name or pronouns at school than they use at home — with mixed results.

The New Hampshire Supreme Court, for example, held that such a policy did not infringe on parental rights. The court explained that the policy did not require nondisclosure, encourage children to hide information from their parents, or prevent the parents from finding out the information another way.

A Wisconsin trial court went the other way, ruling that a similar policy infringed on parents’ ability to make medical decisions for their children. The court relied on written testimony from two doctors that living a “double life” with different gender identities at home and at school was “inherently psychologically unhealthy” for the child. (Another challenge in Wisconsin was dismissed without reaching the merits; the court found that there was no evidence that the policy would be applied to the plaintiff’s child, so the challenge was too theoretical for the court to hear.)

Freedom of speech or religion used to justify discrimination

Opponents of trans rights litigating in state courts have sometimes relied on arguments that respecting trans people violates their free speech or free religion rights — a claim the U.S. Supreme Court recently endorsed in 303 Creative v. Elenis.

Just five months before the Supreme Court issued its opinion in 303 Creative, however, a Colorado appellate court ruled that a cakeshop owner’s refusal to make a blue and pink cake to celebrate a prospective customer’s gender transition violated the state’s anti-discrimination laws, finding that the activity of making a cake fell outside the scope of constitutional protections for free speech and free religious exercise. (The Colorado Supreme Court recently vacated that opinion on procedural grounds, without addressing the merits of the free speech or free religion claims.)

But six months after 303 Creative, the Virginia Supreme Court reversed a lower court’s dismissal of a teacher’s claims that being fired for refusing to use a trans student’s preferred pronouns violated his freedoms of speech and religion. The court cited 303 Creative in finding that the teacher’s allegations supported moving forward with his claim that being forced to use the student’s preferred pronouns amounted to government-compelled speech. It also resurrected his religious discrimination claim under the state constitution — which, the court noted, is more protective of religious rights than its federal counterpart.

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Regardless of how the U.S. Supreme Court rules in Skrmetti, advocates should develop a comprehensive, state-by-state strategy for protecting trans rights under state constitutions. In addition to the possibilities afforded by unique state constitutional provisions, state courts are free to interpret provisions identical to those in the U.S. Constitution as more rights protective. Even if the Court strikes down Tennessee’s law barring gender-affirming care for trans kids, state constitutions can be used to further expand rights beyond federal protections. And if the Court upholds Tennessee’s law, state constitutions may be able to fill the rights void.

Morgan Munroe is a student at NYU Law School who is participating in the Brennan Center’s Public Policy Advocacy Clinic.

Kathrina Szymborski Wolfkot is a senior counsel in the Judiciary Program at the Brennan Center for Justice and the managing editor of State Court Report.

Suggested Citation: Morgan Munroe & Kathrina Szymborski Wolfkot, State Constitutional Protections for Transgender People After Skrmetti, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Dec. 11, 2024), https://statecourtreport.org/our-work/analysis-opinion/state-constitutional-protections-transgender-people-after-skrmetti