It’s been a hard year for transgender people in the United States.
Between the exponential growth in harmful legislation, the tens of millions of dollars in election advertising spent on demonizing us for the crime of existing, and continued threats to our physical safety, we’re all more than a little bit exhausted going into the holiday season. For better or worse, however, the year is not over, and earlier this week the Supreme Court took on U.S. v. Skermetti, giving us a look at what the battle for gender-affirming care is going to look like.
The court will be examining Tennessee’s 2023 ban on certain types of gender-affirming care for minors. More specifically, the law bans the use of puberty blockers, hormone replacement therapy and surgery for the treatment of gender dysphoria in minors. Filed on the behalf of L.W., a 16-year-old transgender girl and her parents, two other plaintiff families and a Memphis-based physician, this case was brought by Lambda Legal, the American Civil Liberties Union, the ACLU of Tennessee and Akin Gump Strauss Hauer & Feld LLP. These minors have been receiving treatment from qualified medical professionals with informed parental consent, and are seeking to be able to continue their treatment as they were prior to the passage of the law.
There are two central arguments against the health care ban.
First, the ban violates the rights of minor patients and their parents to make health care decisions that work best for them and their families. This is the bodily autonomy argument we have seen not only in the context of gender-affirming care in recent years, but also in the reproductive rights context. It should be a core principle that people have a right to make their own decisions for their own bodies without government interference, and in the case of minors, within guidelines set by their parents/guardians and medical care providers. For many families of transgender youth, affirming their child and providing them with the appropriate health care is a basic family value, and it is overreach on the part of the government to interfere with those decisions.
While there are times the government should intervene for the safety or rights of a child, transgender health care simply isn’t one of them. Gender-affirming care is a treatment model that has existed for decades and is safe, effective and backed by reputable medical organizations. I generally think that the bodily autonomy angle is strong, and is an argument I invoke frequently when discussing the issues surrounding transgender rights. However, in a legal context it needs to be applied with caution, particularly when it comes to the rights of parents to make certain choices regarding their children’s health care. This type of argument could hypothetically be turned around to justify forcing children into religiously based conversion therapy on the basis of “family values.” Luckily, there is the safeguard of the wealth of scientific data that shows conversion therapy is ineffective and dangerous for youth.
The second, far more effective argument in the legal context is that of sex discrimination. It is absolutely critical to keep in mind that the Tennessee law (and all other bans on gender-affirming care for minors) only ban these medications and procedures for the treatment of gender dysphoria. The exact same type of health care that is being banned for transgender youth is still freely available for the treatment of precocious puberty, hormone imbalances, gynecomastia and even purely cosmetic purposes such as breast augmentation surgeries (which by definition are also a form a gender-affirming care). Even more notably, the law carves out an exception for the treatment of intersex conditions, which includes genital surgeries on minors (often under the age of 2 years old), which despite what the anti-transgender camp would have you believe, does not occur for the treatment of gender dysphoria in minors in the United States. Intersex advocacy organizations have been fighting for years to ban forced infant surgery, citing the growing body of research and lived experience that it causes intersex individuals significant complications later in life that they are frequently unable to consent to. There is only one factor that this law looks to, and it is not the safety of this type of health care, nor the contexts in which it is utilized, or even the extensive safeguards that exist. The law only looks at the sex the patient was assigned at birth to determine whether or not they may access these treatments. Hence, the Tennessee ban is by definition sex discrimination.
There is precedent for viewing bans on transgender rights as a form of sex discrimination, particularly the Bostock v. Clayton County decision from 2020. The Supreme Court ruled that because the only factor that played into whether or not the employer took issue with the employee was their sex assigned at birth, it qualifies as sex discrimination under Title VII. Interestingly, the 6-3 decision was penned by conservative Justice Neil Gorsuch and joined by Chief Justice John Roberts. (It is also interesting to note that Gorsuch made no comments and asked no questions Wednesday during the oral arguments in Skermetti.) One should be aware, however, that since Bostock, the court composition is different, principally with the subtraction of Justice Ruth Bader Ginsburg and the addition of Amy Coney Barrett. And in the past four years there have been radical shifts in how health care issues are approached, particularly in a post-Dobbs world. No precedent, no matter how readily apparent, should be considered a guarantee anymore.
It is important to keep in mind that the bans on gender-affirming care for minors are not based in substantiated medical science. There is a reason that they look nearly identical every time they are introduced, regardless of the state. There is a major network of Christian nationalist organizations working together to create model legislation and lobby politicians to ban transgender health care. A series of leaked emails show that the Alliance Defending Freedom, the Heritage Foundation, the Eagle Forum and other far-right Christian organizations have banded together in order to decimate access to this health care. Additionally, the Southern Poverty Law Center has released a wealth of data showing that much of the anti-gender-affirming care “science” that gets cited in the debate is actually being directly manipulated by the Christian nationalist movement.
Massive overlaps in staff and funding exist between the research, narrative and legal advocacy groups that attack transgender rights. Groups named in the report include Project 2025, the Alliance Defending Freedom, Moms4Liberty, The American College of Pediatricians (not to be confused with the American Academy of Pediatrics), the Society for Evidence Based Gender Medicine and dozens of others — all working in tandem to create junk science and spread disinformation about the safety and efficacy of gender-affirming care. This network is dangerously shrewd, with members often masking their true allegiances in order to seem more legitimate and deceive the average American.
These organizations deliberately misinform the public and misrepresent data, such as in their use of the infamous “Swedish Study” to claim that receiving gender-affirming care leads to a 19 times increase in suicidality. While this study is cited by nearly every anti-transgender advocate, these claims have been debunked, not just by trans advocates, but also by the author of the study herself. The truth is, the study doesn’t discuss suicidality, and though published in 2011, uses decades-old data. What the study actually measured was the rate of mortality from all causes from 1973–2003, and did not at all address risks associated with gender-affirming care. While the study did find that there was a higher rate in all-cause mortality for trans people during that period, there are myriad factors that go into that. The data covers trans people living at the height of the AIDS crisis, who were at an increased risk of substance-use disorder and homelessness due to housing and employment discrimination, and who were suffering from a lack of support due to social rejection of trans identities. In short, it is neither the smoking gun these groups want it to be, nor, I would argue, a gun at all.
The hostile narratives surrounding transgender health care simply do not translate into reality. The gender-affirming care model is safe, effective and supported by every major medical organization, including the American Medical Association, the American Psychiatric Association, the American Psychological Association, the American Academy of Pediatrics and the American Academy of Child and Adolescent Psychiatry. Unlike the organizations described above, these are secular scientific organizations whose priority is the safety and health of patients, not religious dogma.
In fact, states have struggled to find credible witnesses to justify their bans on gender-affirming care in the past. A large number of “expert witnesses” that are brought in to oppose gender-affirming care have been recruited and trained by the Alliance Defending Freedom, and many of them do not have any experience treating gender dysphoria. As just one example from 2023, a U.S. district judge noted that Arkansas’ “expert” witnesses were “testifying more from a religious doctrinal standpoint than from the perspective expected of experts.”
It is important that we don’t allow ourselves to fall for the rhetorical manipulation and strategic misinformation campaign that the Christian nationalist movement is becoming increasingly known for. There is no argument based in reputable, secular science against allowing transgender youth to access the same health care that is made available to their cisgender counterparts. What we will have to wait for and see, however, is whether this Court can see past its own religious ideology, and reaffirm the need for secular reason in law making. Given the tenure of the oral arguments, this seems tragically unlikely. If the high court upholds Tennessee’s ban, turning gender-affirming care decisions into another states’ right issue, such a decision will likely uphold similar laws in some 21 other states, and create even more divisive legislation.
As the great Justice Sonia Sotomayor put it during oral arguments, in expressing skepticism of the likelihood of states protecting minorities from discrimination, “When you’re 1 percent of the population or less [it is] very hard to see how the democratic process is going to protect you.”
Photo by Aiden Craver on Unsplash
