backSupreme Court Upholds Tennessee’s Prohibition on Gender-Affirming Care for Minors
On June 18, 2025, the U.S. Supreme Court issued its opinion in the closely watched case of United States v. Skrmetti. In this 6-3 opinion, the Supreme Court upheld Tennessee’s legislation blocking gender-affirming care, holding that Tennessee Senate Bill 1 (SB1 or the Bill), titled Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity, does not violate the Equal Protection Clause of the Fourteenth Amendment.
Senate Bill 1
SB1 prohibits healthcare providers from administering, performing, or offering to administer or perform a medical procedure if the procedure is for the purpose of “[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex,” or “[t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Tenn. Code § 68-33-103(a). The Bill, however, allows providers to prescribe, administer, or dispense the medications for other reasons, including treating a minor’s congenital defect, precocious puberty, disease, or physical injury.
The Bill is enforced in three ways: (1) through a private right of action that allows an injured minor or nonconsenting parent of an injured minor to sue the healthcare provider; (2) authorizing the Tennessee Attorney General to bring an action against a healthcare provider to “enjoin further violations, to disgorge any profits received due to the medical procedure, and to recover a civil penalty of [$25,000] per violation”; and (3) permitting Tennessee regulatory authorities to initiate remedial action against healthcare providers who violate the law’s prohibitions. See Tenn. Code §§ 668-33-104, 105, 106.
Procedural History
Three transgender minors, their parents, and a physician (collectively, Plaintiffs) filed suit in the United States District Court for the Middle District of Tennessee challenging the constitutionality of SB1, contending that SB1 violated the Equal Protection Clause of the Fourteenth Amendment and was therefore unconstitutional. The district court concluded that Plaintiffs lacked standing to challenge SB1’s prohibition on sex transition surgery but determined that Plaintiffs could succeed on their challenge to SB1’s prohibition on puberty blockers and hormones. The district court granted a partial injunction, determining that transgender individuals were a quasi-suspect class and that the Bill was unlikely to survive intermediate scrutiny.
On appeal, the Sixth Circuit reversed, finding that rational basis review was appropriate and that the law satisfied that standard. The Sixth Circuit held that SB1 did not classify on the basis of sex, because the law applied equally to all minors, regardless of sex. The court then declined to categorize transgender individuals as a suspect class and applied rational basis review, concluding that Tennessee offered considerable evidence in support of its reasoning for introducing the bill and upheld the constitutionality of SB1.
The Supreme Court’s Decision
Chief Justice Roberts wrote the majority opinion, which was joined in full by Justices Thomas, Gorsuch, Kavanaugh, and Barrett and partially joined by Justice Alito.
1. SB1 Does Not Classify on the Basis of Sex
In upholding the constitutionality of SB1, Chief Justice Roberts highlighted the fact that SB1 creates two classifications: (1) classification on the basis of age by only applying to minors, and (2) classification on the basis of medical use by permitting puberty blockers or hormones to be prescribed only in certain situations. Because neither of these classifications warrant heightened constitutional scrutiny, the Court applied rational basis review to hold that SB1 does not violate the Equal Protection Clause.
The majority opinion rejected arguments that SB1 classified on the basis of sex, which would subject SB1’s provisions to heightened scrutiny. Chief Justice Roberts explained that the Supreme Court “has never suggested that mere reference to sex is sufficient to trigger heightened scrutiny,” especially in the medical context.
The Court offered an explanation as to how SB1 does not classify on sex. The Court rejected Plaintiffs’ argument that “SB1 prohibits certain treatments for minors of one sex while allowing those same treatments for minors of the opposite sex.” Per the Court, “[w]hen properly understood from the perspective of the indications that puberty blockers and hormones treat, SB1 clearly does not classify on the basis of sex.” For example, when “a transgender boy (whose biological sex is female) takes puberty blockers to treat his gender incongruence, he receives a different medical treatment than a boy whose biological sex is male who takes puberty blockers to treat his precocious puberty.” Therefore, per the Court’s reasoning, whether a minor receives puberty blockers tuns on what medical condition the puberty blockers will be treating, not on the sex of the minor.
In explaining its holding, the Court compared SB1 to a California insurance program addressed in Geduldig v. Aiello, 417 U.S. 484 (1974). In Geduldig, the Court analyzed the constitutionality of a California insurance program that excluded coverage for certain disabilities resulting from pregnancy. The Court held that the program did not discriminate on the basis of sex because the insurance program “divided potential recipients into two groups: ‘pregnant women and nonpregnant persons,’” so the program could not discriminate on sex because women were in both groups. According to the Court, SB1 creates similar groups—one includes only transgender individuals and the other includes both transgender and non-transgender individuals. Because transgender individuals are in both groups, the Court explained that “there is a ‘lack of identity’ between transgender status and the excluded medical diagnoses.”
2. Court Punts on Question of Whether Transgender Individuals Constitute a Quasi-Suspect Class
Although the majority made it clear that the Court was not going to address the question of whether transgender individuals are a suspect of quasi-suspect class, the concurring and dissenting opinions appear to shed light on how the Court may view the question.
Justice Barrett’s concurring opinion, joined by Justice Thomas, focused on her determination that transgender individuals are not a quasi-suspect class. She explained that the Supreme Court has “never embraced a new suspect class under [the test derived from United States v. Carolene Products Co., 304 U.S. 144, 152–53 n.4 (1938)].” Although only dicta, Justice Barrett wrote that the Sixth Circuit was right to hold that transgender individuals are not a suspect class, concluding that: “In future cases, however, [she] would not recognize a new suspect class absent a demonstrated history of de jure discrimination.”
Justice Alito’s concurring opinion reaches the same conclusion, noting that this question is one that “has divided the Courts of Appeals, and if we do not confront it now, we will almost certainly be required to do so very soon.” He makes his opinion on the question clear: “In my view, transgender status does not qualify under our precedents as a suspect or ‘quasi-suspect’ class.”
Justice Sotomayor took a different approach in her dissent, stating there should be no “serious dispute that transgender persons bear the hallmarks of a quasi-suspect class.”
However, the majority’s determination that this case does not require the question to be addressed certainly leaves the issue up for debate.
3. Does Bostock Apply?
The Court also addressed how its holding in Bostock v. Clayton County, 590 U.S. 644 (2020) affected its analysis of SB1. The 2020 landmark decision held that “an employer who fires an employee for being gay or transgender violates Title VII’s prohibition on discharging an individual ‘because of’ their sex.” Bostock, 590 U.S. at 650–62, 654–59.
In writing for the majority, Chief Justice Roberts explained that the Court has not yet considered whether Bostock’s reasoning applies beyond the Title VII context, and that it does not need to address that question here. In dicta, however, he explains that SB1 would survive under Bostock’s reasoning because “sex is simply not a but-for cause for SB1’s operation.”
Justice Alito takes a similar approach in his concurring opinion, explaining that the “Equal Protection Clause does not contain the same wording as Title VII, and our cases have never held that Bostock’s methodology applies in cases in which a law is challenged as an unconstitutional sex classification.”
4. SB1 Survives Rational Basis Review
The Court’s opinion then subjects SB1’s provisions to the rational basis inquiry. The Court concluded that “SB1 clearly meets this standard” and pointed to the numerous findings by Tennessee’s General Assembly that the provision of gender-affirming care to minors could lead to negative, irreversible consequences.
Conclusion
The majority opinion ends with a note recognizing the public policy implications of its opinion: “This case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field. The voices in these debates raise sincere concerns; the implications for all are profound.”
The Supreme Court’s full decision can be found here.
Reporter, Morgan Cronin, Atlanta, +1 404 572 2795, mcronin@kslaw.com.
Senate Finance Committee Releases Budget Bill with More Aggressive Medicaid Provider Changes Than House Version
On June 16, 2025, the U.S. Senate Finance Committee released draft legislative language for its version of the “One Big Beautiful Bill Act,” a comprehensive budget reconciliation proposal that includes significant changes to Medicaid financing (the Bill). The May 19 and May 27 editions of Health Headlines covered key changes to the Medicaid program under the House-passed reconciliation Bill. Compared to the House-passed version of the Bill, the Senate draft includes more aggressive provisions affecting Medicaid expansion states, particularly through a phased reduction in the allowable level of provider taxes.
Currently, states may impose provider taxes up to 6% of net patient revenue to help finance their Medicaid programs. Under the Senate proposal, expansion states would see that cap gradually reduced starting in 2027, reaching 3.5% by 2031. Nursing facilities and intermediate care facilities would be exempt from this phasedown. In contrast, the House version would have imposed a moratorium on increasing provider taxes above the existing 6% limit, without further reductions.
The provider tax provision is part of a broader set of Medicaid financing changes in the Bill, originally introduced by the House Energy and Commerce Committee, that are expected to reduce federal Medicaid spending over time. The Senate Finance Committee text includes:
- Moratorium and Reduction in Provider Tax Limits: A moratorium on new provider taxes or increases to existing ones as of enactment. In Medicaid expansion states, the allowable tax level would be reduced by 0.5% annually from 6% to 3.5% by 2031, decreasing by 0.5% annually starting in 2027. Non-expansion states would retain their current provider tax levels.
- Directed Payment Cap: The Bill would direct CMS to cap Medicaid directed payments at 100% of Medicare rates for services delivered in expansion states. Existing payments exceeding this cap could be temporarily grandfathered in 2026, but would phase down by 10% annually starting in 2027. Non-expansion states could continue to pay up to 110% of Medicare rates.
- Uniform Tax Burden Requirement: The Bill would prohibit the approval of health care-related taxes that place a higher burden on Medicaid revenue compared to non-Medicaid revenue. This provision may require structural changes to existing financing arrangements in certain states.
- FMAP Reduction for Certain Populations: In states that offer comprehensive Medicaid coverage to undocumented immigrants after October 1, 2027, the federal medical assistance percentage (FMAP) for the expansion population would be reduced from 90% to 80%. The FMAP for emergency services provided to undocumented adults would be reduced to 50%.
Senate negotiations over these Medicaid and other provisions continue, and further changes are expected before the Bill is considered by the full Senate. In order for reconciliation legislation to be enacted, the Senate proposal will need to be reconciled with the House-passed version, so that both chambers approve identical bill text. We will continue to track developments and provide updates as the legislation advances.
The Senate-version of the Bill is available here.
Reporters, Dennis Mkrtchian, Los Angeles, + 1 213 218 4046, dmkrtchian@kslaw.com; Christopher Kenny, Washington, D.C., + 1 202 626 9253, ckenny@kslaw.com; Allison Kassir, Washington, D.C., + 1 202 626 5600, akassir@kslaw.com.
Texas Court Overturns Biden Administration’s Expansion of Abortion Privacy
On June 18, 2025, Judge Matthew Kacsmaryk of the Northern District of Texas vacated the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule to Support Reproductive Health Care Privacy (the Rule). The court found that the Rule exceeded HHS’s authority on privacy protections concerning abortions and gender affirming care. The court’s decision applies nationwide.
The Rule became effective in 2024 under the Biden Administration after the Supreme Court overturned Roe v. Wade. It expanded protections for reproductive health information under HIPAA by prohibiting regulated entities from using or disclosing an individual’s protected health information (PHI) for the purpose of conducting a criminal, civil, or administrative investigation into or proceedings against a person in connection with seeking, obtaining, providing, or facilitating reproductive health care where the health care provided was lawful under state or federal law. (See April 17, 2023 Health Headlines). The Rule also prohibited a regulated entity from disclosing PHI to identify an individual for purposes of initiating an investigation into a person who obtained, sought, provided or received lawful reproductive health care services.
The case is based on Texas plaintiffs, Dr. Carmen Purl and her medical clinic. The clinic treats children, young women, and pregnant women, including a substantial number of child-abuse victims. In 2024, Judge Kacsmaryk issued a preliminary injunction that blocked HHS from enforcing the Rule against Dr. Purl. The court ordered additional briefing to consider plaintiffs’ request that the court vacate the Rule entirely based on plaintiffs’ allegations that the Rule was “arbitrary and capricious” and “in excess of statutory authority” in violation of the Administrative Procedure Act. Further, the plaintiffs alleged that the Rule impaired their practice by limiting the clinic’s obligations under Texas law to report child abuse and participate in public health investigations.
In its order, the court determined that the Rule improperly regulated politically sensitive issues like abortion and gender transition and that the defendants had to “identify a ‘clear congressional authorization’” in support of their arguments for higher protection for certain PHI. The court found that defendants failed to do so.
The order stated further that the regulation infringed on state authority to enforce child welfare and public health laws. Judge Kacsmaryk wrote, “[U]ntil the people speak through their representatives, agencies must fall silent on issues of abortion or other matters of great political significance. Thus, HHS lacked the authority to promulgate the 2024 Rule.” Since the June order vacated the Rule on the merits, the order applies with nationwide effect.
A copy of the court’s opinion and order is available here.
Reporter, Brittni Hamilton, Los Angeles, CA, +1 213-218-4083, bhamilton@kslaw.com.
Also in the news
King & Spalding Welcomes Rob DeConti, former Chief Counsel and Deputy Inspector General for HHS OIG
King & Spalding welcomes Rob DeConti as a Partner in our Washington, DC office. Mr. DeConti is the former Chief Counsel and Deputy Inspector General for the HHS OIG.
As the OIG’s top attorney, Mr. DeConti led the office that serves as the HHS liaison to the DOJ for all healthcare enforcement actions under the False Claims Act. He has extensive experience in the application of healthcare fraud and abuse laws such as the Anti-Kickback Statute and the Beneficiary Inducement Statute, as well as the development and implementation of compliance strategies for healthcare entities and compliance oversight by boards of directors.
More information on Mr. DeConti is available here.
Upcoming events
Dan Hettich and Amanda Hayes-Kibreab Speaking at AHLA Annual Meeting
June 30 – July 2, 2025
Join King & Spalding at the AHLA Annual Meeting in San Diego, California. Washington, D.C. Partner Dan Hettich will be speaking on the following topic: “A (Loper) Bright Future?: How the Demise of Chevron Deference Will Affect the Health Care Industry.”
Los Angeles Partner Amanda Hayes-Kibreab will be speaking on the following topic: “Is it protected...and do you want it to be? The Evolving Scope of Attorney-Client Privilege for In-House Counsel.”
The AHLA Annual Meeting Schedule is available here.
Editors: Chris Kenny and Ahsin Azim
Issue Editors: Taylor Whitten and Will Mavity