Skrmetti: WPATH and Cass Review in serious collision at US Supreme Court
Peter Jenkins on the significance of Skrmetti for therapists, parents and children
Alexis de Tocqueville, the renowned observer of life in nineteenth century America, always had a sharp eye for its unique political culture: “Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question”1 (1956: 126). This is now the case with the controversy over claimed rights to gender affirming healthcare for under 18s in Tennessee. The state’s ban on such healthcare (SB1) was challenged by three trans identified minors, their parents, and a doctor, under the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. The US Supreme Court granted judicial review, hearing verbal evidence in December 2024 and issuing its 6-3 majority decision in June 2025.
Tennessee had introduced a law, banning the use of puberty blockers and hormones to treat under-18s for distress related to gender identity, but permitting medical treatment for conditions such as precocious puberty. Similar bans apply in another 20 US states, largely in the so-called, “heartland” encompassing the Midwest, the Great Plains and whole of the South. The legal challenge to SB1 rested on several arguments, mainly that the ban relied on sex-based discrimination, similar to that previously overturned in the 2020 Bostock case. This line of argument was decisively rejected by the Supreme Court. The Court upheld the constitutionality of the Tennessee ban. This strengthens the position of other similar legal bans in other US states. It marks a watershed development in the field of gender affirming healthcare. The outcome has major implications for therapists, parents and children directly impacted by this ongoing debate.
The Supreme Court decision represents a major setback for the US transgender healthcare rights movement. Anthony Romero, executive director of the American Civil Liberties Union (ACLU), had previously argued that this was “the best case in the transgender rights docket” (Confessore, 2025). However, it now looks more like a fatal case of massive overclaim and of poor judgment by its main backers. In a sense, the case was already in serious trouble at the verbal hearings last December, a point astutely picked up by The Economist (2024).
Not ‘Born this Way’
One of the major claims was that the transgender community met the criteria required for a higher level of legal scrutiny. If successful, this claim would have pushed the case back down the legal ladder, to be picked over at leisure. Such claims for heightened legal scrutiny require evidence of systematic legal discrimination, exclusion from democratic life, and unique and immutable identifying characteristics.
On this key point of immutability, Justice Alito had closely followed Chase Strangio, the ACLU lawyer, through various thickets of legal discussion last December, asking the same question several times: “Is transgender status immutable?” (SC, 2024, Transcript of Verbal Hearing at 89). No clear response came to this crucial question. Justice Alito then changed tack:
JUSTICE ALITO: Are there individuals who are born male, assigned male at birth, who at one point identify as female but then later come to identify as male…?
MR. STRANGIO: There are such people…
JUSTICE ALITO: So, it's not an immutable characteristic, is it?
(SC, 2024, Transcript of Verbal Hearing at 98. Abbreviated by author.)
ACLU’s case effectively unravelled at this exact point. If the transgender community cannot be defined by an immutable characteristic, then it does not qualify for the desired higher level of judicial scrutiny. The Tennessee ban therefore remained valid under constitutional law.
A Reality-based Ruling
Maybe this outcome was always going to be inevitable. After all, by definition, any court is a place where the non-binary world comes into harsh contact with the binary world of criteria and evidence. The Supreme Court was clearly suffused with a reliance on biological realism about sex. The ACLU challenge relied overmuch on argument by analogy, essentially claiming that the vulnerable position of the transgender community was like that of women as a class. However, as one Justice pointed out, accepting this claim entailed meeting a high bar, and the arguments presented failed to convince. Essentially, this was a decision simply about constitutional law, namely: was Tennessee within its rights to pass this law? It was not about promoting social justice for transgender minors. ACLU never seemed to fully grasp this crucial distinction.
So, what are the implications for therapists, parents and children? Firstly, the US Supreme Court decision provides a curious synchronicity with its broad equivalent, namely the UK Supreme Court’s recent ruling. The UK Supreme Court determined in April 2025 that the term ‘sex’ was based on biological sex in interpreting the Equality Act 2010 (Jenkins, 2025). These two parallel decisions mark a decisive shift in the medico-political landscape, in arresting the forward march of transgender claims to healthcare. At the very least, the US Supreme Court freezes the current situation where almost half of US states have a legal ban on gender affirming care for minors.
However, beyond this, the decision indicates that the current monolithic position of US medical and professional associations in support of gender affirming medication and therapy is untenable. The US Supreme Court’s decision explicitly recognised the emergence of a Pan-European medical alternative position, from Finland, Sweden, and the UK, amongst others. This new emerging consensus has argued for a pause in medical interventions, citing the weak evidence for their effectiveness.
Justice Thomas, delivering the Opinion of the Court, acknowledged this alternative consensus, derived from the UK Cass Review (2024) and other sources. This European consensus did not in itself justify the Supreme Court’s decision. However, it did underline the careful way that the Tennessee legislature had carried out due diligence in passing its own law. As for the massed ranks of US professional bodies supporting gender affirming care, “whether ’major medical organizations’ agree with the result of Tennessee’s democratic process is irrelevant”, according to Justice Thomas (SC, 2025, at 35).
A Foot in the Door
At an immediate level, the US Supreme Court enables legal action to be taken by the Tennessee authorities against breaches of the ban, and to enforce disciplinary action against wayward healthcare providers. In practice, such action may well be unlikely, as healthcare providers and their funders and insurers will be much more likely to opt for extreme caution in this hotly contested field. The decision also opens the door to a private right of legal action within the state for an injured minor, or nonconsenting parent, to sue a healthcare provider for violating the law. Again, while there has only been a trickle of such legal cases so far in the US, this presents a further risk factor for providers of gender affirming medicine to now carefully consider.
There is another subtle, but very powerful impact of the Court’s decision, rather like the quiet tremors which announce an imminent earthquake. The Supreme Court decision marks a clear break with the previous marked deference of the courts towards expert opinion, medical or otherwise. In the past, this deference had promoted the adoption of unscientific perspectives, such as eugenics.
In particular, the moral and scientific authority of the World Professional Association for Transgender Health (WPATH) was savagely attacked by the Court. WPATH’s preeminent status is unlikely to survive the detailed examination and rejection by the Court of its Standards of Care (Coleman et al, 2022). The Court’s preference for the evidence-based approach of the UK’s Cass Review is made very clear. The Cass Review receives 12 positive citations, while WPATH is the subject of no less than 39 critical references, ranging from its endorsement of eunuch surgery, to its circular and self-referencing research methodology. While this is obviously not just a numbers game, the serious damage done to WPATH’s credibility is immense.
Undermining WPATH
WPATH’s expertise has also been further undermined by the recent DHHS Review (2025) of gender affirming medicine, which came too late to directly influence the US Supreme Court decision. The combined weight of the US Supreme Court decision in Skrmetti, the DHHS study and the Cass Review mean that gender clinics and healthcare practitioners can no longer reasonably hide behind WPATH’s standards as reputable guidelines endorsing their practice (Jenkins, 2023).
And for therapists, parents and children affected by the gender debate, the US Supreme Court decisively now shifts the emphasis of treatment away from medicalisation and towards less invasive methods, i.e. psychological interventions, as favoured by the UK Cass Review. Both the US and UK Supreme Court decisions have firmly put a foot in the door seeking to block rational debate about the best way forward and prevent it from being slammed in our face yet again, by the powerful advocates of medical intervention for gender questioning minors.
Peter Jenkins is a counsellor, supervisor, trainer and researcher in the UK. He has published a number of books on legal aspects of therapy, including Professional Practice in Counselling and Psychotherapy: Ethics and the Law (Sage, 2017).
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De Tocqueville, A. (1956) Democracy in America. London: Mentor.
It is to be hoped that WPATH will no longer be accepted as the legal standard of care, now that its methods and recommendations have been so thoroughly discredited. This opens the door, at last, to holding the licensed professionals in the sex-change industry accountable—ethically, medically, and legally.
I would love to believe Mr. Jenkins' optimistic view that the SCOTUS decision and Justice Thomas's opinion in particular will be game changers. In some ways they probably will be, but the Democrats have been attempting to dismiss and cancel the Court ever since it became majority Conservative. They are openly scornful at this point, and have shown themselves to be willing to disregard SCOTUS decisions they don't like.