Genderbevestigende zorg: Wat de uitspraak van het Hooggerechtshof in Skrmetti betekent voor zorgverleners in het hele land

On June 18, 2025, the U.S. Supreme Court delivered a major decision in United States v. Skrmetti, allowing Tennessee’s ban on gender-affirming care for minors to take effect. The ruling reflects a substantial realignment in the legal landscape surrounding transgender issues, and for health care providers it raises urgent operational, compliance, and legal risks.

The Ruling

In a 6-3 decision, the Court vacated the Sixth Circuit’s injunction that had previously blocked enforcement of Tennessee’s law. The law prohibits health care providers in Tennessee from administering puberty blockers, hormone therapy, or gender-affirming surgeries to anyone under 18. Writing for the majority, Justice Roberts framed the decision as a return to judicial restraint: “Our role is not ‘to judge the wisdom, fairness, or logic’ of the law before us, but only to ensure that it does not violate the equal protection guarantee of the Fourteenth Amendment. Having concluded that it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process.” Justice Sotomayor, writing in dissent, said “This case presents an easy question: whether SB 1’s ban on certain medications, applicable only if used in a manner ‘inconsistent with … sex,’ contains a sex classification. Because sex determines access to the covered medications, it clearly does. Yet the majority refuses to call a spade a spade. Instead, it obfuscates a sex classification that is plain on the face of this statute, all to avoid the mere possibility that a different court could strike down SB 1… The Court’s willingness to do so here does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight.”

What This Means for Providers

This decision is not just a political or cultural flashpoint — it is a regulatory event that will have significant downstream consequences for health care providers rendering gender-affirming care across the country.

1. State Law Reigns Supreme (For Now)

The Court’s decision effectively clears the path for states to regulate gender-affirming care. For providers, this means navigating a rapidly diverging patchwork of state laws. To date, more than 20 states have enacted bans or restrictions similar to Tennessee’s, while approximately 17 have adopted “shield laws” that protect access to gender-affirming care. The decision may prompt additional state legislation changing the obligations for providers who furnish services to transgender youth, such as mandatory reporting requirements, restrictions on telehealth prescribing across state lines, limitations on parental consent procedures, or new civil and criminal penalties for facilitating out-of-state care. Similar to the abortion context, differences in state support for gender-affirming care may lead patients to travel to states without gender-affirming care restrictions to access care. 

Health systems and health care providers operating in multiple states, including telehealth providers, must ensure their operations align with the specific laws of each jurisdiction where they practice.

2. Heightened Enforcement Risk 

In states with bans in place for gender-affirming care, enforcement is no longer theoretical. Tennessee’s gender-affirming care prohibition allows the state medical board to discipline providers who violate the prohibition, and similar penalties (including potential civil and criminal liability) exist under other state statutes. The Skrmetti decision may also embolden state attorneys general and medical boards to investigate or sanction providers perceived as offering gender-affirming care to minors, even inadvertently. 

These risks must be considered alongside the potential enforcement of federal laws. Following directives from the White House, the U.S. Attorney General recently directed Justice Department employees in a memo (the “Bondi Memo”) to investigate medical providers and pharmaceutical companies who “mislead the public” on the side effects of gender-affirming care for minors or allegedly violated federal laws such as the Female Genital Mutilation Act. 

Providers who offer transition-related counseling, post-transition support, or who regularly work with transgender youth should work with counsel to evaluate their potential legal risks. 

3. Increased Litigation 

 It is likely there will be a wave of new litigation. Plaintiffs seeking continued access to gender-affirming care will continue to challenge state restrictions. Lawsuits asserting violations of equal protection, due process, discrimination on the basis of disability, or federal preemption will continue, but with the Court signaling deference to states, those challenges may face steeper odds. In addition, enforcement actions against providers of gender-affirming care are likely to generate litigation as state and federal laws are interpreted. As just one example, the federal Female Genital Mutilation Act, cited by the Attorney General in the Bondi Memo, does not apply to surgical operations that are necessary for the health of the patient and performed by a licensed medical practitioner. Courts may be asked to address the scope of these type of exclusions intended to protect medical providers. 

With further litigation expected, providers should develop processes for monitoring and evaluating changes in the law in real time and promptly update their operational policies to effectively manage potential risks. Providers should not assume their current practices regarding gender-affirming care are insulated simply because litigation challenging gender-affirming care restrictions in their state may be pending. 

4. What About Federal Programs and Non-Discrimination Laws?

Although the Court’s decision did not directly address Section 1557 of the Affordable Care Act (ACA), it could influence how courts interpret federal nondiscrimination requirements in health care. Section 1557 of the ACA prohibits discrimination based on race, color, national origin, sex, age, or disability in certain health programs and activities. The Biden and Trump Administration have interpreted the scope of the prohibition differently. The Trump Administration’s U.S. Department of Health & Human Services (HHS) has maintained that Section 1557 does not require coverage or provision of gender-transition services and has explicitly moved to discourage such care for minors. By contrast, in 2024, theBiden Administration’s HHS promulgated Section 1557 regulations that prohibited providers from denying or limiting services based on gender identity and included restrictions on gender-affirming care. Several states quickly challenged the rule, arguing that it unlawfully compelled providers to offer treatments that conflicted with state law or medical judgment. The gender identity protections in the Biden Administration Section 1557 regulations were ultimately stayed nationwide by federal courts. 

Health care providers participating in Medicare, Medicaid, or other federally funded programs must carefully reconcile federal obligations with any contrary state law restrictions.

5. Will there be a Federal Ban on Gender-affirming Care for Minors?

The Skrmetti decision arrives at a time when the federal government has stated its intent that any institutions receiving federal funding shall not “directly or indirectly provide or facilitate sex-reassignment procedures for minors.” See Executive Order on Protecting Children From Chemical and Surgical Mutilation. Although implementation of the Executive Order has been partially enjoined by courts, the Trump Administration has taken steps to discourage providers from furnishing gender-affirming care for minors, including publication of an HHS report criticizing such treatments as lacking adequate evidence and presenting “significant risks and unknowns.” See HHS Gender Dysphoria Clinical Report. 

The Court’s decision in Skrmetti will no doubt be considered in ongoing litigation challenging federal Executive Orders related to gender-affirming care. The decision will weaken plaintiffs’ arguments that federal regulations protecting access to gender-affirming care for minors violate the Constitution. This is because the decision reasoned the law did not discriminate based on sex or gender identity but rather drew lines based on medical diagnoses and procedures that were prohibited for all minors, regardless of gender. However, implementation of the Executive Orders have been challenged on other grounds as well. 

Now What?

Skrmetti is an important ruling that is likely to accelerate legal changes affecting providers who furnish gender-affirming care. Balancing patient needs, legal compliance, and professional ethics remains highly complex. Providers of gender-affirming care should now:

• Work with legal counsel to assess liability exposure under both state and federal frameworks. 
• Engage leadership to establish clear clinical and operational parameters related to offering gender-affirming care.
• Review and update operational practices to align the provision of gender-affirming care with legal and business requirements, especially in telehealth or cross-border contexts.
• Reassess consent procedures to ensure they reflect current legal standards and adequately document patient protections.

At Foley, we are actively advising providers across the country on how to respond to this evolving legal landscape. From policy development and compliance strategy to enforcement defense, we are here to help. Please reach out to the authors, your Foley relationship partner, or to our Health Care Practice Group and Health Care & Life Sciences Sector with any questions.