An Upcoming Supreme Court Case Will Take on Discrimination in Health Care

Historically, intentional discrimination has been a feature of America's health care system, with practices and policies deliberately aimed at excluding certain people from care or denying them needed care solely because of their race, color, national origin, disability, or other personal characteristic. For example, up until the 1960s, Black Americans were systematically denied needed care, segregated into separate facilities, and deprived the benefits of advanced treatments, all to preserve health care for white patients only.

The latest example of intentional discrimination involves state laws designed to deliberately withhold medically necessary care based on sex. These state laws lie at the heart of United States v. Skrmetti, which will be argued before the United States Supreme Court in December. The question in Skrmetti is whether a state law that "categorically prohibits all medical treatments" intended to treat gender dysphoria in minors constitutes a form of sex-based discrimination in violation of the U.S. Constitution's 14th Amendment Equal Protection Clause. If such a law in fact entails sex-based health care discrimination, then it cannot stand unless states with such laws satisfy a far stricter standard of proof than normally required for state laws regulating health care.

Skrmetti involves a Tennessee law that aims to withhold medically necessary gender-affirming care (e.g., puberty blockers and hormonal treatment) from transgender minors. The state has asserted that the law is a strategy for "encouraging minors to appreciate their sex" and to prevent care "that might encourage minors to become disdainful of their sex." To further this goal, the law prohibits covered treatments if they are prescribed "for the purpose" of "enabling a minor to identify with, or live as, a purported identity inconsistent with the minor's sex." Cisgender minors who need services targeted by the law, like testosterone therapy to address delayed puberty, can receive this care if needed; the same treatments are prohibited if needed to conform a minor's sex to their gender identity.

Tennessee is not alone. Over the past several years, two dozen states have enacted such laws. The question before the Court is whether laws that target transgender adolescents amount to unconstitutional discrimination on the basis of sex. If they do, then to preserve its law, a state must meet a high legal bar, grounded in clear medical evidence, known as a heightened standard of review. If such laws are not considered sex discrimination, then the Constitution effectively permits states to adopt their policy of choice, even when grounded in prejudice. The stakes are enormous: according to the Williams Institute at UCLA, more than 90 percent of the nation's approximately 300,000 transgender adolescents live in states that have proposed or passed laws denying access to health care and certain school activities (e.g., sports) and restrooms that most closely match a student's gender identity.

The U.S. has faced health care discrimination before, in the form of laws, policies, and practices that deny, segregate, or treat people unequally solely on their personal characteristics. The best-known example may be discrimination based on race. Black physicians were denied hospital-admitting privileges for fear they would admit Black patients or would touch white patients. American Indians found themselves excluded from their state's health care systems, as did immigrants. The problem was so pervasive that ending racial discrimination in health care became a principal aim of the 1964 Civil Rights Act.

But the problem has not stopped with race, color, and national origin. During the AIDS epidemic, gay men were systematically denied even the most basic medical care, whether the need was blood draws, surgery, or tooth extraction. Before the Americans with Disabilities Act, insurers routinely excluded people with AIDS from coverage. The same was true for people living with mental illness, who were segregated and denied care in community settings. Care was typically provided by isolating people with mental illness into institutions, even when they could reside in community settings with proper care. To further this goal, insurance coverage was deliberately designed to exclude community-based care in the less-restrictive settings.

The victims today are a small, vulnerable group - that is, fewer than a half million teens living with a diagnosable condition for which there are known and effective medical treatments, as documented by the American Academy of Pediatrics in its "friend-of-the-court" brief in Skrmetti. The Tennessee statute is not grounded in medical evidence but in the assertion that transgender children should learn to live with gender dysphoria and "appreciate" their sex, no matter the documented health risks. A health care policy based in such a belief is no less discriminatory than policies excluding people living with AIDS from care, driven by a desire to, as proponents put it, not reward "the gay lifestyle." Health care policies that discriminate against transgender people are also no different in terms of underlying motivation than refusing hospital admission to Black people to ensure that their blood is not comingled with white patients' blood.

In 2020, in its landmark decision Bostock v. Clayton County, the United States Supreme Court concluded that prejudice against transgender people is sex discrimination and has no place in employment. The question is whether the Court will reach the same conclusion for health care.