Future of Transgender Care Rests With Elections, Supreme Court

The availability of gender-affirming care for minors in several states will likely be shaped over the next year by the outcome of state legislative races and the US Supreme Court’s decision on the constitutionality of treatment bans.

Nine states have yet to directly weigh in on transgender youth’s access to puberty-blocking drugs, hormone therapy, and other forms of treatment, an issue that has divided courts and legislatures over how far a state can go in regulating health care among individuals under 18.

Attorneys and policy advocates on both sides of the debate say legislative races could determine whether lawmakers in a number of those states get enough support for enacting policy on the issue. Some states, however, may refrain from taking action until an outcome in a case at the Supreme Court, which may not come until June 2025.

In the meantime, the legal protections available to many gender-affirming care providers and patients remain uncertain.

Roughly 93% of of the estimated 300,100 transgender youth in the US ages 13 to 17 live in states where lawmakers have proposed or passed laws limiting access to health care, school bathrooms and facilities, or imposing other restrictions, according to an April report from the Williams Institute at the University of California, Los Angeles Law School.

“Providers and patients in the remaining states without any prohibitions or protections are certainly in an ambiguous position,” said Sandy Dornsife, a policy analyst at MultiState, a firm that monitors policy trends among state and local governments.

Twenty-six states now have laws on the books banning medication or surgical care for transgender youth, including six states this year that passed legislation either introducing or expanding restrictions on treatments for gender dysphoria among minors.

Sixteen states, plus the District of Columbia, have adopted shield laws protecting access to gender-affirming care, including by preventing providers and patients from facing civil or criminal charges from another state where care is prohibited. That number includes Maine and Rhode Island, which enacted measures this year.

Nine states have yet to either enact protections or restrictions on the provision of hormone therapy, surgeries, and other care among youth—Alaska, Delaware, Hawaii, Kansas, Michigan, Nevada, Pennsylvania, Virginia, and Wisconsin.

Eyes on Elections

Of the states that have yet to enact protections or restrictions related to gender-affirming care for minors, those that are controlled by a single political party with slim margins “may come out of the election with a very different legislative landscape than that with which they went in,” Dornsife said.

In Pennsylvania, Democrats control the state House and the governor’s office, and are looking to regain control of the state Senate. Success there could be a “legislative tipping point” for those seeking to pass gender-affirming care protections, Dornsife said. Efforts to expand Democrats’ slim majorities in both chambers of the Michigan legislature could also be pivotal to gather momentum around the issue there.

Arizona’s legislature in 2022 banned gender-affirming surgeries for minors, but an executive order issued the following year by Democratic Gov. Katie Hobbs guarantees insurance coverage for surgeries among state employees and protects individuals from investigations initiated by other states. Republicans currently control both chambers in the state legislature by a narrow margin, and a flip there in November “could mean formally codifying protections into law,” Dornsife said.

Any states that have yet to enact gender-affirming care protections can use existing shield laws as a template, said Amy Magnano, a partner at Morgan, Lewis & Bockius LLP who represents health-care providers and facilities on privacy issues.

At the same time, conservative advocacy groups are encouraged by the state laws enacted this year to prohibit or further restrict gender-affirming care for youth.

Legislatures in Idaho, New Hampshire, Ohio, South Carolina, Tennessee, and Wyoming passed legislation prohibiting procedures on minors or restricting the use of state funds for gender-affirming care.

Matt Sharp, director of the Center for Public Policy at the Christian legal advocacy group Alliance Defending Freedom, has worked with policymakers in states to help develop legislation in this area and testified in support of the bill in South Carolina.

ADF and other conservatives have supported policies limiting gender-affirming medical care among youth, citing England’s Cass Review, a government-commissioned report that recommended prioritizing mental health care over medications and other gender-affirming care for youth experiencing gender dysphoria.

Sharp said that regardless of the outcomes of 2024 elections, “legislators from both sides of the aisle ought to join forces and protect kids in their states.”

Gender-affirming surgeries among minors remain rare, and medical organizations discourage the use of surgical or other medical interventions prior to puberty.

A study published in June by researchers at the Harvard T.H. Chan School of Public Health found that no gender-affirming surgeries were performed on youth ages 12 and younger in 2019, with 2.1 per 100,000 transgender and gender-diverse youth ages 15 to 17 undergoing surgeries.

Supreme Court

Regardless of election outcomes, some states may hold off on gender-affirming care policy until the Supreme Court has an opportunity to weigh in, policy analysts say.

“A decision regarding the constitutionality of gender-affirming care bans will almost certainly come too late to impact the 2025 state legislative sessions,” Dornsife said. Most state legislatures conclude their regular sessions by June.

The justices will review in their upcoming term a federal appeals court decision that upheld Tennessee and Kentucky laws in the face of constitutional challenges by the Biden administration and transgender youth. The laws in both states prohibit individuals under the age of 18 from receiving puberty blockers, hormone therapies, or other care for the treatment of gender dysphoria.

The decision to take up the case, which will focus on the Tennessee law, came after the Supreme Court said in April that Idaho could broadly enforce its care ban while a case there moves forward.

ADF, which is representing Idaho in that case, sees the high court’s decision allowing the law to remain in effect during litigation as a “promising sign” for those looking to restrict gender-affirming care, Sharp said.

“We hope that as the Supreme Court’s looking at this, that they’re going to recognize that this is simply about states looking at the evidence and making decisions about what types of services doctors and others can and cannot do to minors,” Sharp said.

Heron Greenesmith, deputy director of policy at the Transgender Law Center and an adjunct law faculty member at Boston University, said there’s concern that “legislators will be emboldened and judges will be emboldened by a decision against gender-affirming care to interpret it as broadly as possible, like they have done in the context of abortion.”

The Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization handed the regulation of abortion back to states, 14 of which now completely ban abortion with limited exceptions.

Josh Blackman, a constitutional law professor at the South Texas College of Law, disagreed with this prediction, arguing “most of the states that want to have these laws already have these laws.”