On one hand, the Skrmetti argument indexed remarkable progress, a degree of sophistication about how gender works, and the range of possible gender identities and expressions. On the other, it displayed the ignorance and biases that prevail in the arena of sex, gender and sexuality.
“I’m here to stand up for my kid,” Brian Williams told me outside the Supreme Court on Dec. 4.
Williams and his wife Samantha have been fighting for their daughter—known as L.W. in the legal papers the American Civil Liberties Union filed to challenge Tennessee’s ban on gender-affirming medical care for minors—for years. When Tennessee’s law spurred the Vanderbilt Medical Center to stop offering transition-related care to minors in October 2022, the Williamses started taking a five- to six-hour-long drive to Cincinnati for care. And after Ohio added a residence requirement for treatment earlier this year, they started driving to a part of North Carolina that may now be nearly inaccessible because of the summer hurricane that washed out the interstate.
For her part, L.W. said she is “getting used to” being at the center of this year’s most electric cultural panic. She said that she wished that she could speak one-on-one with some of the people protesting on the other side. She thinks she might be able to reach them by asking sincerely “why it’s their business and how the case affects them … in the hope that they would come up with a response that makes sense”—and if they couldn’t do that, then maybe they would reconsider their position.
“The Supreme Court,” political humorist Finley Peter Dunne once claimed in the voice of his alter ego Mr. Dooley, “follows the election returns.” This may or may not be true. But the argument before the U.S. Supreme Court in the case United States v. Skrmetti/ L.W., et al v. Skrmetti on Dec. 4, as polite and erudite as these arguments always are, was in line with the rampant anti-trans rhetoric and fear-mongering coming from the winning side of the recent presidential election.
Though difficult to sit through, the two-plus hours of argument in this challenge by trans youth, their families, the ACLU, Lambda Legal and the Biden administration to Tennessee’s ban on gender-affirming care for minors, was a nearly perfect distillation of this moment in our gender politics.
- It was a proxy for the plaintiffs’ belief that the laws restricting care—now on the books in 26 states, where 40 percent of the country’s adolescent population live—run afoul of the Constitution because they are rankly discriminatory.
- The arguments also reflected the belief by officials in those states—and a whole lot of people who worked to elect Donald Trump—that the laws are appropriate efforts to regulate what they consider “quack” medicine. For those people, gender-affirming care represents a cultural epidemic of transgender identification, and an ever bigger epidemic of people not (in the actual words of the Tennessee legislation) “appreciat[ing] their sex” and “becom[ing] disdainful” of their sex.
On one hand, the Skrmetti argument indexed remarkable progress, a degree of sophistication about how gender works and the range of possible gender identities and expressions.
On the other, it put on display the ignorance and biases that prevail in the whole arena of sex, gender and sexuality. Too many times, the conservative justices either allowed Tennessee’s advocate, James Matthew Rice, to make claims that boiled down to an assertion that allowing youth to live as trans people was itself harmful or they themselves made those kinds of claims.
On the up side, the Skrmetti argument was the first in U.S. history in which an openly trans attorney got to speak and take questions from the justices of the nation’s court of last resort. That lawyer was Chase Strangio of the ACLU, co-director of the group’s LGBTQ and HIV Rights Project and a long-standing advocate for gay, queer and trans people. There was an electric current in the room when Strangio went to the podium, even though it was after an hour of the justices playing an aggressive game of constitutional law ping-pong with the solicitor general of the United States, Elizabeth Prelogar.
Strangio’s speaking role in the drama taking place in that ornate, high-ceilinged room, with its echoes of Greek and Roman imperial architecture, seemed to change the tone of the exchange. Even the conservatives—OK, most of the conservatives, not Justices Thomas and Alito—seemed to sit up a little straighter with the sense that history was being made. Their confrontational sharp edges softened a bit, perhaps, in recognition that Strangio’s evident thriving was a standing rebuke to some of the claims about the inherent harmfulness of the treatments at issue in the case. It was a brilliant unstated argument in favor of having people speak for themselves and for allowing those who come from affected communities speak for and with those communities. Had they asked, Strangio could have told the justices what it meant for him and people close to him to lack access to gender-affirming care in adolescence, and could have spoken to the ways his parents might have balanced the potential risks and benefits to treatment relatively early in life.
“Nothing about us without us,” as they say in the disability rights movement.
Had they asked, Strangio could have told the justices what it meant for him and people close to him to lack access to gender-affirming care in adolescence, and could have spoken to the ways his parents might have balanced the potential risks and benefits to treatment relatively early in life.
Strangio’s history-making star turn did not, unfortunately, change the overall drift of the colloquy or militate against the almost-certain outcome of the case. It seems very, very likely from the questioning that, come June or early July 2025, when the Court issues its most carefully watched decisions of the season, the Skrmetti opinion will be a loss for the trans adolescents and families who helped bring the case to the Supreme Court, as well as for the White House (although after Jan. 20, the administration will pretty certainly switch sides to support Tennessee).
It will also, likely, be another in a string of defeats for the urgent nationwide battle against restrictive gender norms, stereotypes, rhetoric and policy. As sympathetic as the justices might have been to Strangio personally, and as much as it might have fed their own self-regard to see a discriminatory barrier smashed on their own turf, the conservative majority was clearly sympathetic to Tennessee’s arguments against trans care. Some of them seemed sympathetic to the suggestion in the Tennessee legislation that there is something wrong with transgender identification or transition (not appreciating natal sex, or sex assigned at birth) itself.
The final vote might be even more lopsided than the usual political balance on the Court would indicate. It might be 7-2 and not 6-3, with Justice Elena Kagan, a Democratic appointee, possibly joining the six-person majority of justices appointed by Republican presidents. Kagan broached an important issue that nonetheless works against the teens and families in this case: Why, she asked, was this case argued as one about sex discrimination under the Constitution’s Equal Protection Clause—not as an instance of unconstitutional discrimination against trans people as an oppressed or marginalized group? In other words, why is the Tennessee law not a form of disparate, or unequal, treatment “based on transgender status,” and potentially illegitimate on that basis?
Justice Amy Coney Barrett—a conservative Trump appointee, although one who sometimes shows a willingness to engage arguments you might think she would steer clear of—picked up on Kagan’s theme: Why should litigants, or the courts, try to capture the wrong in Tennessee’s statute with a sex-discrimination analysis that was originally designed to deal with the different treatment in the law of “men” and “women,” imagined as discrete and immutable categories? Isn’t this really about trans people as a stigmatized and mistreated minority facing intense political storm winds?
Here’s the problem with that kind of thinking.
First: This really does smell like sex discrimination, as Prelogar and Strangio both underlined.
- If I’m assigned male at birth (AMAB), and my parents and physician and I conclude that I need testosterone treatment because I’m not presenting as masculine enough, or not at the right time or in the right way—in other words, if I’m a cisgender minor pursuing gender confirmation treatment—then Tennessee is perfectly happy to have me get the treatment (consistent with other laws saying the treatment is actually medically appropriate).
- If I’m assigned female at birth (AFAB) and I, with my parents and physician, want to proceed with gender confirmation treatment, so that I can either pause a female adolescence that we all think might do me irreparable harm, or have a male adolescence that aligns with my gender identity, then I can’t.
So it’s: AMAB—yes; AFAB—no. Ergo, sex (assigned at birth) discrimination.
Not that different, the advocates for the families suggested (and sometimes argued explicitly) from old Ruth Bader Ginsburg’s old ACLU cases that got the Court to rule that a state couldn’t assume a father would be a better executor of their child’s will in the event of the child’s death than the mother would, or have a different minimum drinking age for young women than it does for young men. [The cases are Reed v. Reed (1971) and Craig v. Borden (1976).]
Second: Proffering the idea that trans people are a targeted minority and that the Court should consider the Tennessee law and its many brethren around the country in that frame is, alas, a ruse. This Court isn’t going to create a new category of constitutional analysis to protect trans people from invidious targeting and discrimination.
Alarmingly, neither Barrett nor Prelogar seemed to know that there had ever in our history been “formal discrimination” in legal texts against trans people or proscribing trans-ness. It was up to Strangio to remind the Court about the long history of local and state-level statutes prohibiting “cross-dressing”—to say nothing of the proscription against trans people serving in the U.S. military that was imposed by President Trump and will likely appear in an expanded form next year.
The notion of protecting trans people by not recognizing the sex discrimination that seems evident in this case was fleeting. The weak commitment of Barrett, and then several other justices, to move in this historic direction was revealed by their thinking out loud about how hard it is to create new constitutional categories. They ruminated about how reluctant the Supreme Court has been since the 1980s to designate groups as specially targeted and therefore to look especially closely (with “strict” or “heightened scrutiny”) at legal actions that target them—for example, in the case City of Cleburne v. Cleburne Living Center (1985), in which a unanimous Court found that a particular municipality was motivated only by anti-disability sentiment when its officials denied a zoning permit to a facility for disabled people. But the Court also ruled that disabled people didn’t get special status under the Equal Protection Clause (they were not a “suspect” or “quasi-suspect” class, so the legal action didn’t get an especially high level of scrutiny)—although that didn’t mean that states could do the most overt things that were motivated only by bias, hatred or distaste.
Of course, this Supreme Court could follow the precedent of a few of its predecessors and rule against Tennessee and other states enacting bans on medical care for trans youth. But they probably won’t. Following the state’s arguments, a majority of this Court will probably find that the states aren’t acting out of their sex-stereotypical biases and sex-linked power differentials, or their simple hatred toward trans people and transgender identification. They won’t find in the Constitution a basis for taking an especially hard look at legislation and other legal action that singles out trans people for different treatment. Instead, they’ll claim the same mantle that defenders of gender, sexual, racial and sexuality-based hierarchies have for generations and say they’re just protecting the children.
