While impacting thousands of transgender youth and their families, the decision does not affect access to care for the youth living in states that do not ban access to hormones and puberty blockers. Many of these states have shield laws that protect access to care for youth and their families and safeguard providers who offer care. These states could offer access to care for transgender youth living in states with bans who can travel to them.
Research shows that these bans deny young people access to care endorsed by every major medical association in the U.S. and negatively impact providers. In response to a recent Williams Institute survey, 29% of providers in states without bans reported that they had received threats to their workplace related to the provision of gender-affirming care, and 26% had been personally threatened online. Over half (55%) of providers have experienced a recent increased demand for care among youth, and many reported long waitlists.
Today's decision upholds state laws that ban access to gender-affirming care for youth. However, it was decided on narrow grounds, which leaves open avenues to legally challenge other laws and policies that limit transgender people’s participation in areas such as the military, education, and health care.
For example, the majority opinion leaves open the question of whether sufficient evidence of animus toward transgender people by the government could result in a different outcome. It also did not determine whether classifications based on transgender status are entitled to heightened scrutiny, allowing Equal Protection challenges to other forms of discrimination against transgender people to proceed. The Court’s decision extends only to laws that implicate both minors and medical care.
The opinion also doesn’t impact other constitutional arguments, including the fundamental rights of parents to make decisions about their children's medical care, the responsibility to protect incarcerated transgender people, or the First Amendment rights to obtaining a valid passport and fully participating in public education.
Additionally, Justice Alito stated in his concurring opinion that Bostock is now “entitled to the staunch protection we give statutory interpretation decisions,” so any efforts to overturn workplace nondiscrimination protections for transgender people are likely to fail.
Notably, the Justices' written opinions depart from language used in executive actions by the Trump administration, which denies the existence of transgender people or portrays them as trying to commit fraud in the military context. In its first sentence, the majority opinion cites the Williams Institute’s estimate of the transgender population and includes references that use respectful language, an marked departure from the administration’s rhetoric regarding transgender people.
“Today’s decision will directly impact the health care decisions of thousands of transgender youth and their families,” said Christy Mallory, Interim Executive Director and Legal Director at the Williams Institute. “But based on research and the personal stories of transgender people, the Supreme Court affirmed that transgender people of all ages exist, they have experienced discrimination, and constitutional and other legal arguments remain available to challenge such discrimination.”
