The Supreme Court’s ruling in U.S. v. Skrmetti, which upheld Tennessee’s law protecting minors from gender transition procedures, is already making itself felt in other cases pending before the Supreme Court. On Monday, the Supreme Court vacated the judgments of three appellate courts and sent the cases back “for further consideration in light of United States v. Skrmetti.” The three cases address laws in four states dealing with transgender issues different from that considered in Skrmetti — namely, whether legislatures can protect children from gender transition procedures.

Fourth Circuit

In Folwell v. Kadel, the Supreme Court ordered the Court of Appeals for the Fourth Circuit to reconsider an 8-6 ruling in April 2024, which decided that it was unconstitutional for states to exclude coverage gender transition procedures from state health insurance plans. The ruling impacted North Carolina’s insurance plan for state employees, which had excluded gender transition procedures since the 1990s, and West Virginia’s Medicaid program, which excluded gender transition surgeries.

The Fourth Circuit ruled that both state programs constituted discrimination “on the basis of sex,” according to the expansive definition of “sex” promoted by social progressives. Both states appealed to the Supreme Court, arguing that their exclusion of gender transition procedures was properly considered a use-based distinction, not a sex-based distinction.

Ninth Circuit

In Hamso v. M.H., the Supreme Court ordered the Ninth Circuit to review its September 2024 ruling against Idaho’s exclusion of gender transition surgeries from its state Medicaid program. Building on a lower court ruling, the Ninth Circuit argued that the law violated the Equal Protection Clause by discriminating against people based on their transgender status. Yet the Skrmetti court would likely also hold this law to constitute a use-based distinction.

Tenth Circuit

In Fowler v. Stitt, the Supreme Court ordered the Court of Appeals for the Tenth Circuit to reconsider a June 2024 ruling against a 2021 Oklahoma law requiring state birth certificate records to reflect a person’s biological sex. In their opinion, the 10th Circuit applied Bostock’s reasoning to its analysis of the Equal Protection Clause, arguing that discrimination on the basis of transgender status constituted discrimination on the basis of sex. In Skrmetti, the Supreme Court explicitly declined to decide whether Bostock’s reasoning extended further, and they rejected the idea that transgender status merited special civil rights protections.

Analysis

All four of the states in question — Idaho, North Carolina, Oklahoma, and West Virginia — have passed laws like Tennessee’s that protect minors from gender transition procedures. Yet the Supreme Court actions did not address those laws in particular (in fact, only the laws in Idaho and Oklahoma have pending legal challenges). Skrmetti’s application to those cases is rather straightforward.

Instead, the Supreme Court applied the logic of Skrmetti to other cases pending on its docket. In other words, where a law restricts provision of or coverage for certain medical procedures, the Supreme Court requires lower courts to treat those as use-based distinctions, not sex-based distinctions.

It is not surprising that the Supreme Court dispensed with other pending cases based on one it just settled; they always receive more appeals than they can reasonably hear. No, perhaps the most surprising part of this development is that the Supreme Court had no less than three pending cases, challenging four distinct state laws, that addressed an issue so similar to Skrmetti.

Yet this does not come as a total surprise. The Supreme Court’s 2020 Bostock decision opened a Pandora’s box of litigation by redefining sex-based discrimination to include any sort of categorization where sex or gender is even mentioned. Five years later, these cases are filtering up to the Supreme Court, and the Supreme Court will have to contend with a tidal wave of litigation where leftwing activists try to extend the logic of Bostock to new areas of law.

In Skrmetti, the Supreme Court placed one of the first sandbags against that surge, identifying that use-based distinctions between different medical procedures — even if they incidentally affect sexual issues — are not sex-based discrimination. That sandbag has already repelled three more cases moving upward through the judicial system.

Returning these cases was a good first step, but the Supreme Court will need more than a few sandbags to prevent their Bostock error from fundamentally reshaping American society for the worse. Forestalling a wave of this magnitude requires a permanent dyke or retaining wall. In other words, the Supreme Court cannot content itself with carving out exemptions from transgender ideology around the edges. Eventually, it will have to reject this false and dangerous worldview wholesale.