Conduct-as-status in Skrmetti's gender-affirming care bans

With its decision in United States v. Skrmetti, the Supreme Court has permitted government prohibitions on gender-affirming care for certain transgender individuals. Although these bans construe themselves as barring medical procedures in neutral, conduct-based terms, we contend that the laws discriminate on the basis of transgender status and sex. Drawing from equal protection jurisprudence—including decisions in Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges—we contextualize the gender-affirming care bans within the Court’s history of rejecting efforts to mask status-based discrimination through ostensibly neutral restrictions on conduct. By underscoring that both cisgender and transgender individuals seek gender-affirming interventions, we reveal how these laws functionally target transgender adolescents alone.

Further, we highlight how these prohibitions on medical care inherently incorporate a sex-based classification system, wherein access to care depends on the alignment—or lack thereof—between an individual’s sex assigned at birth and their gender expression. The use of such classifications triggers heightened scrutiny under the Equal Protection Clause. Beyond doctrinal concerns, we note the real-world implications of the Court’s reasoning, particularly the potential mental health consequences for transgender individuals who are denied gender-affirming care. By permitting legislatures to obscure status-based exclusions behind conduct-based language, the Court has further eroded equal protection jurisprudence, with profound implications for the well-being and legal agency of transgender individuals.