Transgender Rights at a Crossroads in the United States
In his first month in office, US President Donald Trump has issued a series of sweeping executive orders targeting transgender rights. Thus far, these aim to rigidly define “sex” in federal law, exclude transgender people from military service, ban gender-affirming healthcare for people under the age of 19, restrict support for transgender students in schools, and prohibit transgender women and girls from participating in sports consistent with their gender identity. The orders not only seek to roll back important rights, but functionally aim to erase any recognition of transgender people at the federal level.
Worryingly, these orders build on political terrain that is now exceedingly hostile to transgender rights. State legislatures have enacted dozens of anti-transgender laws, Congress is considering a range of bills that could codify anti-transgender discrimination at the federal level, and the Supreme Court is set to decide a pivotal case determining how anti-transgender discrimination should be treated under the US Constitution.
In this post, I briefly examine the landscape for transgender rights in the United States, analyze what President Trump’s executive orders on transgender rights aim to do, and then discuss the stakes of United States v. Skrmetti, the pending Supreme Court case that will likely set out the framework that federal courts will use in adjudicating transgender rights cases under the Trump administration and beyond. I argue that the recent executive orders underscore the importance of the Supreme Court’s reasoning in Skrmetti, and the urgent need to reinforce foundational equal protection principles and require lawmakers to meaningfully justify the restrictions they wish to impose on transgender rights.
The Landscape for Transgender Rights
While anti-transgender laws have existed for decades, opponents of LGBT rights began a renewed push to politicize transgender rights in earnest in the immediate aftermath of Obergefell v. Hodges, the 2015 U.S. Supreme Court case legalizing same-sex marriage. Their efforts to limit transgender rights at the state level have had significant success in the past five years. In 2020, Idaho became the first state to legislatively ban transgender students from participating in school athletics consistent with their gender identity, and in 2021, Arkansas became the first state to legislatively prohibit gender-affirming care for minors. Lawmakers in other states soon followed suit and successfully enacted a barrage of legislation targeting lesbian, gay, bisexual, and transgender people, and particularly transgender children.
As of January 2025, at least twenty-six states have banned at least some form of best-practice medical care for transgender children, and six states criminalize the provision of that care as a felony. Twenty-five states prohibit transgender children from participating in school athletics consistent with their gender identity. Fifteen states prohibit transgender people from using bathrooms and other facilities consistent with their gender identity in schools, with some of these statutes covering other government buildings as well. While similar bills have not yet passed at the federal level, the widespread demonization of transgender people has stymied the passage of basic statutory protections that would expressly prohibit discrimination against transgender people in employment, education, housing, public accommodations, federally funded programs, credit, and other domains.
Trump 2.0 and Transgender Rights
After heavily investing in anti-transgender themes and advertising in his presidential campaign, President Trump has swiftly moved to order executive branch agencies to roll back, ignore, or foreclose the rights of transgender people in the federal government and beyond in his first weeks in office.
Declaring a Sex Binary
President Trump’s first order, issued within hours of assuming office on January 20, 2025, seeks to define “sex” for the purposes of federal law. It declares that “it is the policy of the United States to recognize two sexes, male and female,” and claims these are fixed by birth and are not changeable. It rejects the concept of gender identity and decries “gender ideology,” which it defines as the replacement of sex as a biological category with the notion of self-professed gender identity. The order says all federal agencies will use the term sex rather than gender and apply sex discrimination law to apply only to sex assigned at birth and not gender identity. It also withdraws the Biden administration’s executive order defining gender identity discrimination as a kind of sex discrimination, an understanding the Supreme Court had embraced in Bostock v. Clayton County in 2020.
The Trump administration’s adoption of a rigid sex binary has practical consequences. The first order thus instructs relevant agencies to ensure that passports and other federal documentation reflect biological sex; to house transgender women in men’s prisons and withhold gender-affirming care in prisons; to initiate rulemaking to bar trans women from single-sex rape shelters; and to take steps to enforce a binary, fixed understanding of sex and prioritize litigation to that effect. It also says federal funds may not be used to promote “gender ideology,” which potentially affects a wide range of non-state actors and compels them to embrace a trans-exclusive definition of sex in their own programming.
Exclusion from Military Service
The second order, issued on January 27, 2025, seeks to exclude transgender people from military service, reinstating a similar policy from the first Trump administration. It states that “expressing a false ‘gender identity’ divergent from an individual’s sex cannot satisfy the rigorous standards necessary for military service,” not only because it involves medical interventions but because “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.” The Secretary of Defense must therefore update military standards to exclude transgender people, bar trans people from facilities inconsistent with their sex assigned at birth, and issue directives to end “identification-based pronoun usage.”
Restriction on Gender-Affirming Care
The third order, issued on January 28, 2025, seeks to radically restrict gender-affirming care for minors. It orders relevant agencies to ensure that institutions that receive federal funds do not provide gender-affirming care, and directs officials to end support for gender-affirming care in various healthcare programs, including Medicare and Medicaid. Agency policies that rely on guidance from the World Professional Association for Transgender Health, the leading international authority, are to be rescinded, with the incoming Secretary of Health and Human Services instructed to instead publish a review of best practices for supporting children and adolescents with gender dysphoria and what it dismissively calls “other identity-based confusion.” Robert F. Kennedy Jr., the nominee for this position, breaks from every major medical association and opposes this care; he has previously suggested that exposure to chemicals may be making children transgender and likened puberty blockers to castration.
Perhaps the most worrying portion of the order is a directive to the Attorney General ordering her to enforce female genital mutilation laws, consumer fraud and deception laws, and parental kidnapping laws against providers of gender-affirming care and supportive parents of transgender children. The AG is also meant to work with Congress to create a private right of action for children and parents who might come to regret receiving gender-affirming care, which would likely deter medical providers from offering care to those who need it to avoid any possibility of future liability.
Attacking Inclusive Education
The fourth order, issued on January 29, 2025, takes aim at what it calls “radical indoctrination in K-12 schooling,” inter alia, by giving cabinet officials 90 days to come up with a strategy to eliminate federal funding for gender ideology. It specifically seeks to terminate support for schools that recognize transgender people in school curricula, programming, or faculty employment, support a student’s social transition, and adopts policies that the administration considers discriminatory toward women. The Attorney General is also to take action against those who sexually exploit minors, practice medicine without a license, or are “otherwise unlawfully facilitating the social transition of a minor student.” In practice, these categories are likely to be warped and misused to prosecute those who are merely supportive of transgender youth, as officials in the State of Texas did when they redefined child abuse to include parents supporting their transgender children receiving gender-affirming care.
Exclusion from Athletics
The final order, issued on February 5, 2025, pledges to rescind federal funding from educational programs that allow transgender women or girls to participate in athletics alongside cisgender women or girls, and to adopt this as a policy of the United States in its engagement with athletics associations. Not only will agencies interpret sex discrimination provisions in educational settings to apply only to sex assigned at birth, but they are meant to pursue civil rights enforcement actions against schools that adopt a trans-inclusive approach. Notably, the order does not only apply to self-attestation of gender identity, but to frameworks that make transgender athletes’ participation contingent on particular levels of testosterone or other physiological characteristics, as the National Collegiate Athletic Association and other sports associations had done to permit many transgender athletes to compete. The Secretary of State is to promote this trans-exclusive policy at the United Nations and with the International Olympic Committee. It suggests that transgender women seeking to compete in women’s events will be barred from the United States – a particularly serious threat to global antidiscrimination principles in light of the upcoming Los Angeles Olympics in 2028.
United States v. Skrmetti and Anti-Trans Discrimination
While advocates have swiftly filed lawsuits challenging many of these orders (see here, here, here, and here), their outcome will be heavily impacted by the Supreme Court’s forthcoming decision in United States v. Skrmetti. The case is likely to determine how closely federal courts should scrutinize anti-transgender discrimination under the Equal Protection Clause of the Fourteenth Amendment to the US Constitution.
The case revolves around Tennessee’s Senate Bill 1, enacted in 2023. The Bill bars healthcare providers from offering puberty blockers, hormones, or surgical interventions to a minor to alleviate any distress from the disconnect between their gender identity and sex assigned at birth. The legislative text explicitly states as a purpose that the state “has a legitimate, substantial, and compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty,” and in prohibiting certain procedures thought to jeopardize the integrity of the medical profession, including those “that might encourage minors to become disdainful of their sex.”
After the passage of the law, three minor plaintiffs, their parents, and a physician sued state officials, arguing that Senate Bill 1 was unconstitutional on various grounds. The district court found that it was unconstitutional, while a panel of the Sixth Circuit Court of Appeals ruled 2-1 that it was not. The Supreme Court granted the government’s writ of certiorari only to determine whether the law violated the Equal Protection Clause.
Discrimination Based on Sex?
The petitioners argue the law discriminates based on sex but also discriminates based on transgender status, which some appellate courts have recognized as an additional quasi-suspect class entitled to heightened scrutiny by courts. At oral argument, petitioners pointed out the Bill’s clear sex-based rationale, given that one expressly stated purpose of the ban is to encourage minors to appreciate their sex assigned at birth. The law does so by prohibiting those assigned female at birth, but not male, from receiving care to masculinize their bodies, and prohibiting those assigned male at birth, but not female, from receiving care to feminize their bodies. The Bill also overtly aims at restricting transgender, but not cisgender, youth from accessing medically necessary care. As such, they argue that the law should be subject to heightened scrutiny, a heightened standard of judicial review requiring the state to show that a regulation advances an important governmental interest and uses means that are substantially related to that interest.
Tennessee argues the law does not discriminate based on sex and that transgender status should not be recognized as a quasi-suspect class. It contends the ban is a distinction based on purpose, not sex. While medical interventions for the purpose of transitioning are prohibited, the same interventions are permissible when used for other purposes. The issue remains, however, that the law on its face determines who can access interventions that masculinize or feminize their bodies based on their sex. If the Court nevertheless accepts that the ban is not sex discrimination and that transgender people are not a quasi-suspect class, any discrimination would only be subject to rational basis review. This is a highly deferential standard requiring only that the law be rationally related to a legitimate government interest.
Skrmetti’s Significance for Equal Protection Doctrine
How the Court resolves this dispute will likely have implications not only for transgender rights claims, but for equal protection doctrine more generally. The most straightforward solution would be to find that the statute discriminates based on sex or transgender status and remand for reconsideration to the lower court. That solution would be consistent with the Court’s compelling logic in Bostock v. Clayton County. Although that case dealt with an employment discrimination statute and not the Equal Protection Clause, Justice Gorsuch wrote for a 6-3 majority that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Yet at oral argument in Skrmetti, the justices seemed inclined to try to find a way to distinguish relevant antidiscrimination precedents. This would have lasting and damaging repercussions for the wide range of transgender rights currently under threat from the Trump administration, and potentially for women’s rights as well.
For example, the Court could conclude that Senate Bill 1 does not amount to sex discrimination because it equally restricts both boys and girls from accessing transition-related care. As Justice Jackson pointed out at oral argument, however, this approach would dilute foundational equal protection principles. Loving v. Virginia, for example, found that a law prohibiting interracial marriage for individuals of any race was still a racial classification requiring close scrutiny by courts. A holding along these lines could radically undercut the promise of equal protection doctrine in virtually any context dealing with transgender rights, so long as rights are restricted equally to those assigned male and female at birth.
Another avenue, suggested primarily by Justice Alito, would be to conclude that Senate Bill 1 distinguishes based not on sex but on the purposes of the medical interventions at issue. This largely ignores an expressly stated purpose of the law, which is to encourage adherence to one’s sex assigned at birth. Relying solely on medical purpose without regard to clear sex discrimination could also have repercussions for cases likely to arise under the recent executive orders, particularly insofar as restrictions on military service are nominally linked to a diagnosis of gender dysphoria, or restrictions on gender-affirming care in carceral settings might be tied in part to the specifics of that particular care.
Finally, Chief Justice Roberts and Justice Kavanaugh expressed a reticence to apply heightened scrutiny when it may require courts to assess contested medical evidence and wade into a highly contentious legislative debate. However, deferring in this manner would be inconsistent with prior practice and set a particularly dangerous precedent for transgender rights. The Court has not shied away from uncertain scientific questions raised by recent cases dealing with religion and COVID restrictions. Nor has the Court historically been deterred by robust disagreement around interracial marriage, women’s inclusion in educational settings, or affirmative action. Should the Court express a reluctance in Skrmetti to engage in equal protection analysis under these conditions, even in dicta, it sets a dangerous precedent in the many other areas where misinformation, sensationalism, and the politicization of transgender lives is precisely the problem at hand.
Transgender Status as a Quasi-Suspect Classification?
The rash of executive orders adds urgency to the separate question of whether transgender status should be recognized as a quasi-suspect classification meriting heightened scrutiny under the Equal Protection Clause, which could provide another avenue for litigants if the Court waters down its understanding of what constitutes sex discrimination. At oral argument, Justice Barrett suggested this might be a more straightforward way of conceptualizing Senate Bill 1, but also expressed some hesitation about recognizing a new suspect class given that the Court has not done so in decades.
Given the factors that the Court has traditionally used to identify classifications like race or sex that merit additional scrutiny – namely, a history of discrimination, a shared immutable trait, the irrelevance of that trait to their ability to contribute to society, and political powerlessness – transgender status seems like a strong contender for heightened scrutiny. The historical record shows that transgender people have long been subject to discrimination by state and non-state actors, from laws that banned “cross-dressing” to exclusion from military service and state employment to the barrage of executive orders this year seeking to erase them from public life. Ample evidence suggests that gender identity is a deeply held and intimate characteristic of personal identity and is not intrinsically relevant to a person’s ability to contribute to society. And most of all, the aggressive backlash against transgender rights in recent years, with thousands of bills targeting transgender people and fierce hostility to even the most basic nondiscrimination protections, illustrate how little political power transgender people enjoy. If laws that target transgender people do not merit a closer look to ensure that they are not depriving people of the equal protection of the law, it is difficult to imagine any laws that target a yet-unrecognized group deserving that extra consideration.
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The Court must realize that their Skrmetti decision’s logic is unlikely to be cabined to the specific context of gender-affirming care for youth. The framework the Court adopts will have repercussions for the constitutionality of everything the executive branch is currently purporting to do with respect to equality in rights and status of transgender Americans. It will affect their rights and recognition with regard to federal documentation, incarceration and detention, lifesaving healthcare, access to bathrooms and other public facilities, inclusion in domestic violence programs and homeless shelters, treatment in schools, participation in athletics, and the ability of countless federally funded programs across the United States to recognize and support transgender people.
As such, Skrmetti is the kind of case where careful oversight is needed to ensure that any regulation targeting a particular group is sufficiently justified and does not deprive that group of the equal protection of the law. In the current fraught context, judicial restraint requires care and fidelity to the established principles and promise of equal protection law, not the abdication of those principles at a time when discrimination is likely to become significantly worse.