Transgender Rights Cases Reopened After Supreme Court Ruling—Even Ones It Didn’t Touch

The Supreme Court ordered several cases to be reexamined after the Skrmetti ruling, despite the decision ostensibly being a limited ruling.

Photo by Ian Hutchinson on Unsplash

On Monday, the Supreme Court remanded several cases with major implications for transgender rights back to lower courts for reconsideration in light of its recent, highly controversial Skrmetti decision. That ruling found that transgender youth have no constitutional right to access gender-affirming care, and that state bans do not violate equal protection because they target a medical diagnosis—gender dysphoria—rather than sex or transgender status. Following the remands, the 7th Circuit also moved to reopen a case on the constitutionality of bathroom bans for transgender students. The reopening of these cases is troubling, as it may create a pathway to expand the Supreme Court’s decision well beyond its stated scope—particularly since the reasoning around medical diagnoses in Skrmetti is not directly applicable to cases involving access to public accommodations like restrooms or birth certificates.

The three rulings that SCOTUS vacated and remanding are as follows: Kadel v. Folwell, a ruling that North Carolina state health plan’s categorical exclusion of gender-affirming care was unconstitutional, Anderson v. Crouch, which similarly ruled West Virginia’s exclusions were unconstitutional, and Fowler v. Stitt, a decision in the 10th Circuit which ruled that transgender people could correct their birth certificates in Oklahoma. Immediately following the remands, the 7th Circuit Court of Appeals reopened D.P. v. Mukwonago, a decision that allowed a transgender girl to continue using a girls bathroom in Wisconsin.

In their ruling, the Supreme Court majority held that they did not need to decide whether equal protection applies to transgender status or whether laws targeting transgender people constitute sex-based discrimination, because Tennessee’s ban on gender-affirming healthcare for trans youth is based on a diagnosis of “gender dysphoria.” As a result, the Court did not explicitly permit open discrimination based on sex or transgender status—but it signaled that using gender dysphoria as a proxy could be a viable workaround to some constitutional protections. The decision appeared limited to the context of medical care, though Justices Amy Coney Barrett, Samuel Alito, and Clarence Thomas, in separate concurrences, wrote that they would have gone further and found that transgender people are not entitled to such protections at all. Still, despite the ruling’s narrow framing, multiple cases are now being reopened—including several that do not hinge on medical diagnoses—raising questions about how far the precedent might be extended into unintended areas.

In particular, Oklahoma’s birth certificate executive order contains no reference to medical diagnoses. Instead, the governor signed an order banning all gender marker changes on birth certificates after declaring that “people are created by God to be male or female” and pledging immediate action to enforce that belief through executive authority. Likewise, in the Mukwonago school district case, a transgender student was banned from using the girls’ bathroom under a policy that stated “students should use the locker rooms and bathrooms of their sex at birth.” The policy did not cite a medical diagnosis; it was a clear classification based on sex, which is why it was initially struck down under heightened constitutional scrutiny. Both of these policies more clearly hinge on transgender status and sex, with no attempted workaround that would satisfy the Skrmetti decision’s ruling.

The remanding and reopening of court decisions to which Skrmetti does not directly apply is deeply troubling and could pave the way for broader judicial discrimination against transgender people. One likely avenue is the expansion of the Court’s flawed reasoning—echoing arguments used in Loving v. Virginia—to justify further rollbacks of rights. In the Skrmetti decision, the majority claimed that the ban on gender-affirming care for a diagnosis of gender dysphoria did not constitute discrimination because it applied “equally” to both cisgender and transgender people, and to both sexes. This rationale is disingenuous: only transgender people require this care for gender dysphoria diagnoses. The argument mirrors past discriminatory rulings—such as in Loving, in which Virginia argued everyone was equally barred from marrying outside their race, and early gay marriage cases where courts asserted that everyone was equally free to marry someone of the opposite sex.

It is uncertain that the courts will rule against the transgender plaintiffs in these cases - a remand only means that that the case needs to be reconsidered. Still, this will require more resources and time to be spent to defend transgender people who have already won their cases. Likewise, some legal experts say this could put pressure on judges to find rationale to reverse positive decisions towards transgender people, given that SCOTUS may further expand discriminatory rulings targeting transgender people in the future. One legal expert involved in litigating transgender rights cases indicated that more cases could reopen in the near future, taking hard-fought wins and putting them into question again. Transgender people, meanwhile, will continue to feel the fallout from the Supreme Court for years to come.