December 4, 2024 - 9:30pm
US Supreme Court, Washington, DC
Today marked a monumental day at the United States Supreme Court: for the first time, a lawyer who identifies as transgender, the ACLU’s Chase Strangio, argued before the justices.
The case is US v Skrmetti, named after the Attorney General of the state of Tennessee, which banned “gender-affirming care” in 2023. Subsequently, the ACLU, Lambda Legal, and a white-shoe law firm, Akin Gump Strauss Hauer & Feld LLP, sued, arguing that the ban constituted a form of sex discrimination. Natal girls can take puberty blockers for precocious puberty, so why shouldn’t transgender girls receive them to prevent unwanted secondary sex characteristics? Natal boys can take testosterone for an endocrine disorder, so why wouldn’t trans boys get them to transition?
Tennessee’s ban was elevated to the Supreme Court, with the US Justice Department signing on as plaintiff, because it had excavated the least amount of evidence. In Strangio’s words, if they hadn’t brought this case, their opponents would have “brought a case with a set of facts more in their favour”. Lawsuits in other bans, however, had already revealed the lack of solid evidence base for gender-affirming care. The DOJ just didn’t want the justices to interface with those facts.
In a packed courtroom, the three liberal and six conservative justices had their political biases on show. Justice Ketanji Brown Jackson, who famously could not answer the question of what a woman was in her confirmation hearing, compared the case to Loving v. Virginia, which prevented marriage on the basis of race. Justice Elena Kagan couldn’t understand Tennessee’s argument, that we prescribe medication based on condition, not sex — the state’s Solicitor General Matthew Rice had contended that providing morphine for pain relief was utterly different to providing it for assisted suicide. The liberal justices weren’t having it: both boys and girls can get morphine, after all.
Justice Brett Kavanaugh worried over implications for girls’ and women’s sports. Others brought up the Cass Review, the shifts to more cautious guidelines in several European countries, and the conundrum of detransitioners. Justice Neil Gorsuch, who may end up being the swing vote, kept quiet the entire time.
Some observers told me they expected a 6-3 ruling, down ideological lines. Others thought that the sometimes libertarian-minded judges might shy away from regulating medical care to this extent. There will be no decision for many months — and when it does come, it won’t be definitive. Rather, it will affect how lower courts scrutinise the claim of sex discrimination. But it could have huge implications. If the court decides that transgender people are a protected class, it will be very hard to pass a ban on treatments for them, or any regulations which privilege biological sex over gender identity, in sports or elsewhere.
That’s unlikely, as the court hasn’t created a new protected class in many years, declining to define either the elderly or disabled people as such. But the justices could decide that the onus is on states to prove they’re not discriminating based on sex, making it harder to uphold bans.
If all that sounds anticlimactic, then consider the other historic aspect of the day. It may be the first time the American media came face to face with the many feminist, lesbian, gay, and even trans adults in favour of banning paediatric gender medicine.
In front of the courthouse, two competing rallies took place. On the left, the ACLU handed out purple hats and scarves with the phrase “the freedom to be ourselves”. On the right was a group holding a banner reading “Democrats Against Puberty Blockers.” Lesbian protestors carried signs reading “I am a childhood desister” and “Stop Transing Gay Kids.”
These people were trying to draw attention away from the Left-Right framing that the American press applies to this story, and towards the fact that the vast majority of children with early-onset gender dysphoria grow out of those feelings by the end of puberty. They were revealing the feminist objection to men identifying as women and demanding entry to women’s spaces and sports. They were showing the American public that there remains much of this story they haven’t been told.
Whether the American media takes this opportunity to reassess the long-running narrative beyond the Left-Right framing — that conservatives ban gender-affirming care because of bigotry and liberals support it because of kindness — remains to be seen. Inside the courthouse press room, I asked journalists — from Vanity Fair, NBC, and other liberal outlets — if they’d seen the rally of lesbians, gays, and feminists in support of the ban. “Oh, the anti-trans rally, yes,” they uniformly quipped. In taking this stance, they were every bit as closed off to other points of view as the justices had been.
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SubscribeThe only thing that needs banning is protected classes of people.
The USA was founded on equality of all people before the law. There was nothing broken to fix here (other than applying the original laws equally). Every new wrinkle and complication the politicians and lawyers add is actually a move away from equality.
If it is anything like the Cass Report, then it will have no practical effect whatever.
The meddling that trans advocates engage in with pubescent children is the nub of this argument. It is not denied by opponents that many teenagers will have mixed feelings on sex attraction during early puberty. What is dangerous is the capturing of a normal cohort, whether they end up as being gay or straight and imposing cruel surgery and medical interventions on them. While the courts are not the ideal venue in which to deal with this social normalcy I trust the Supreme Court will decide sensibly and throw out the trans activists argument. Were it not so harmful to teenagers I’d describe the concept of gender reassignment as just plain crazy but it has gained traction basically because of the times we are in. The same trans activists are involved in all anti enlightenment issues and for them it is as much a political as social issue. It is also very dangerous.
Thank god there are six conservative judges. Children are too young to make life altering decisions. Taken to its logical conclusion, the idea that children can make these decisions will eventually result in decriminalization of sex between adults and children. Effing madness.
Yes, of course, that is the agendum.
Have an upvote, and an extra one for the correct singular gerund.
Completely agree. Children are not allowed to do many things, such as vote, drive, smoke, drink, join the military, sign contracts, consent to sex and the list goes on. Yet, some believe they should have the right to permanently change/multilate their bodies? How any human being would advocate for this monstrous process for under age children is a sign of either demonic perversion or insanity.
I have mixed feelings about how this case is likely to end up.
On the one hand, ever since Justice Barrett joined the Court, SCOTUS has been fairly pro-Tenth Amendment, and pro-states-rights. Most famously in the abortion case, but also when they upheld California’s animal cruelty laws. (I wrote about the pig case on my own Substack, arguing that it was an important display of the new majority’s integrity and impartiality: https://twilightpatriot.substack.com/p/conservative-justices-show-their)
And yet, at the same time, the US Supreme Court, and the legal system and medical system in general, have an ugly history of not treating forced sterilization as the heinous act it is. (And yes, I consider giving a middle-schooler drugs that prevent sexual development to be ‘forced sterilization’ for the same reason that having sex with him or her would be rape; the child is too young to consent.)
Buck v. Bell, the most famous sterilization case, isn’t even the worst one. In 1978 the Court ruled in Stump v. Sparkman that parents have a legal right to sterilize their children if they get a judge’s permission first, and it didn’t matter that the judge cited no laws to justify his ruling, and that the child (in this case, a 15yo girl who was deceived into thinking she was getting her appendix out) had no legal representative to argue her side of the case. I wrote about it here:
https://twilightpatriot.substack.com/p/absolute-immunity-is-nothing-new
Now, the supporters of this decision will say that it was really about judicial immunity and not forced sterilization at all – basically, after the girl grew up and discovered what had happened to her, she sued the judge, a lawyer, and two doctors for damages. The Court ruled that because what they had done was a “judicial act,” nobody could be held accountable, and it didn’t matter how severely anyone’s constitutional rights had been violated. And yet, I have a very hard time imagining that the Court would have declared a judge immune from suit if he had used his judicial authority to assist in an arson, a lynching, or a rape.
So it seems to me that what’s really going on is that a lot of jurists (including conservatives like Byron White and William Rehnquist, who both voted with the majority in Stump) just think that permanent sterilization isn’t a big deal – that it’s closer to legitimate health care than to the heinous act of violence that it really is. Which bodes poorly for the Skrmetti case.
Thanks for the thoughtful, informative comments. ‘Gender affirmative’ care is worse than sterilization in many cases because it involves removing body parts and introducing drugs that have numerous side effects. It is child abuse, pure and simple. Conventional uses of the hormones are generally to assist in the child’s natural development, not to delay or end it.
Isn’t the real issue the rights of parents and therefore state intrusion – in either direction – into the family?
No, I don’t think that’s the real issue. Lots of issues are involved, yes, including that long-term one, but in the short term the main question is what’s happening with minor children. The state has an interest in protecting minors. Parents, too. Everyone has (or ought to).
Protecting minors is the real issue here, and the state and families aren’t seeing eye to eye on it (yet). As with many other matters. Incidentally, families will win in the end.
Too much jargon made this piece difficult to follow.
I find the comparison with permitting inter racial marriage very sick. How can people compare the irreversible mutilation of children with the Loving case?
Insane that I even have to type this out, but there is no such thing as a “trans child”. The entire absurd premise needs to be ripped out of our society root and branch. To the extent they “exist”, they are creations of a sick, evil cult of leftists preying on kids with mental health comorbidities, spread by social contagion and the warped psychological need for claimed special victim status, and enabled by the pathologized empathy of the weak and deceived, who are often bullied and shamed for any hint of “transphobia”.
Children aren’t “born into the wrong body”, and everyone knows this. Shame on anyone who fails to stand up to this horrid abuse we are allowing our children to suffer from.