Home > Journals > WMLR > Vol. 67 (2025-2026) > Iss. 6 (2026)
William & Mary Law Review
Abstract
Despite the long history of transgender people and transgender care, state legislatures suddenly rushed to pass a wave of bans on gender-affirming medical care for trans youth over a three-year period beginning in 2021—an alarming surge within a flurry of legal attacks on the transgender community. In analyzing the constitutionality of these bans, courts and scholars have focused their attention on how to characterize the nature of the rights implicated, and therefore the level of scrutiny warranted. This focus reacts to, and often follows, the current Supreme Court majority’s approach to questions about the rights of historically oppressed and marginalized groups: Narrowly define the right, then resort to amateur historical investigation of centuries prior to undermine the right’s importance, and finally sanction government action under a rational basis review that is hardly a review at all. This Article shifts the focus from the increasingly fraught taxonomic questions about rights to the underexamined nature of state justifications for these bans. Through a detailed inspection of government statements, medical and scientific evidence, and lower court decisions, this Article critiques the dubious state claims of “harm prevention” or “protection.” This demonstrates that gender-affirming care bans should have failed under any form of judicial scrutiny, including rational basis review. This examination reveals how overemphasis on a narrow framing of the rights at issue—such as the right to access “experimental” treatments or the right to transition—skews the constitutional analysis and invites the use and misuse of history. Doing so perpetuates social hierarchies and obscures the subordination of marginalized, minoritized, and underrepresented groups. By recentering the analysis on evidence about the health and well-being of the affected group—here, transgender minors—this Article serves as a warning against the risks of judicial evaluation that overly scrutinizes the definition of a right asserted by vulnerable groups, while hardly considering the government’s justifications for harming them under the pretext of protecting them. In doing so, the hope is to help restore rationality in constitutional inquiry, where rational basis review often serves as the final impediment to unconstitutional cruelty.