SCOTUS orders judges to revisit decisions on transgender health plans, birth certificates in wake of blockbuster ruling

The justices upended rulings that blocked state policies excluding coverage for gender-affirming care in state-sponsored health insurance plans. The high court also tossed out an appeals court ruling that went against Oklahoma in a challenge to the state’s effort to ban transgender residents from changing the sex designation on their birth certificates. In a loss for the transgender Americans who sued, those decisions will now be reviewed again.

Lower courts must now review the cases again in light of the Supreme Court’s major decision on June 18 that upheld Tennessee’s ban on puberty blockers and hormone therapy for trans minors. The 6-3 ruling in US v. Skrmetti steered clear of discussion about other laws involving transgender Americans, but it also did little to protect them in other cases. The court ruled that Tennessee had not discriminated on the basis of sex, which gave the state far more room to regulate medical care.

The court also held that the law did not discriminate on the basis of transgender status.

But three conservative justices – Clarence Thomas, Samuel Alito and Amy Coney Barrett – said that they would not require courts to more closely scrutinize other laws that discriminate on the basis of transgender status. While a majority of the court declined to adopt that approach, if those three justices can convince two of their colleagues to agree with that reasoning, it would give conservative states much more leeway to enact laws aimed at trans people, both minors and adults. An estimated 1.6 million Americans over the age of 13 identify as transgender, the court said.

Notably, the Supreme Court did not deal Monday with several cases involving state bans on athletes playing on sports teams that align with their gender identity.

Birth certificates

One of the cases the Supreme Court is asking lower courts to revisit is related to birth certificates.

After years of allowing people to change their sex on a birth certificate, Republican Gov. Kevin Stitt in 2021 signed an executive order barring the Oklahoma health department from allowing anyone to alter their sex or gender on the document. A group of transgender residents challenged the law, arguing that it violated their equal protection rights.

A federal district court dismissed the suit, but the 10th US Circuit Court of Appeals allowed the equal protection claim to proceed. Oklahoma officials appealed to the Supreme Court in January.

Now that case will return to the appeals court for a fresh look in light of the Skrmetti decision.

Insurance plans

Another issue that had been pending for months at the Supreme Court dealt with health insurance plans that do not cover transgender care. Lower courts had sided with the transgender advocates, but now will have to look at their decisions again after Skrmetti.

The two state coverage cases concerned access to gender-affirming care for adults, while many of the other cases related to transgender rights to arrive at the court have dealt with minors.

Last year, a Richmond-based federal appeals court ruled that North Carolina and West Virginia had violated the 14th Amendment’s equal protection clause by excluding gender-affirming care from their insurance plans.

The North Carolina plan, used for more than 740,000 state employees, had excluded coverage for gender-affirming care since the 1990s, while West Virginia’s Medicaid program for low-income residents excluded coverage for gender-affirming surgeries.

The plans were challenged by transgender residents in both states who were denied coverage for care needed to treat their gender dysphoria, the medical term for an uncomfortable conflict between a person’s assigned gender and the gender with which the person identifies.

“Because the exclusions here condition access to certain surgeries on whether those surgeries will better align the patient’s sex assigned at birth with their gender, they discriminate on the basis of sex,” US Circuit Judge Roger Gregory wrote in the majority opinion holding that the plans violate the Constitution.

Both states asked the Supreme Court to review that decision, with attorneys for North Carolina arguing to the justices that the appeals court ruling is “seriously flawed” because its exclusion of coverage for gender-affirming care is a use-based distinction, not a sex-based one.

“States do not discriminate against any protected class when they decline to cover certain treatments and surgeries across the board, even when those coverage decisions have a disproportionate effect on some plan participants,” they wrote in court papers. “And the Constitution certainly does not mandate that States not only permit, but fund, these highly controversial forms of medical intervention while the ongoing medical debate remains unsettled.”

West Virginia’s attorneys said that state’s exclusion of gender-affirming surgeries was based on cost-related decisions and asked the high court to review the appeals court decision “to address the chaos that will result” from it.

“The Constitution now dictates gold-standard insurance coverage for transgender Medicaid beneficiaries in West Virginia, which will come at the expense of other services,” they wrote.

This story has been updated with additional details.