After nearly two-and-a-half hours of arguments, the Supreme Court was deeply divided in the case over state bans on gender-affirming medical care for trans minors.
As a trans person who blogged about this stuff twice this week (over on Wonkette -- I actually live-blogged the oral arguments which went okay except for screwing up the name of who was talking a few times. video would have helped with that, damn you SCOTUS) I've registered disagreement, disappointment, or surprise with a number of aspects of courts' handling of trans health care bans, but the most outrageous (to me) was Coney Barrett who clearly didn't know shit about the history of anti-trans legislation.
Our esteemed host here at Law Dork points out North American examples in our legal tradition, but such de jure attacks existed in British law during colonial days as well, and the Dobbs court reminds us that's fair game for establishing a legal history and tradition. Anyone not as knowledgeable as Mr. Geidner can easily learn such things with 30 seconds of googling, and yet Coney Barrett -- who has a staff to prepare her for her participation in oral arguments -- was completely ignorant.
I mean, hate me if you want, but you're an associate justice of the US Supreme Court: when a case involving trans people reaches your bench you should still do your damn job.
It was amazing to hear the justices asking about historical de jure discrimination against transgender people, when as recently as two decades ago people routinely talked about cross-dressers and transvestites - NOT about transgender people at all.
How much historical de jure decriminalization do they think bigots can conjure up in a short time, especially if de facto discrimination was accomplishing the bigots' purposes?
yes. She seems to think that there was no de jure discrimination against transgender people if the law didn't use the word "transgender" in its text.
Of course the word itself didn't exist until the 1980s and wasn't known outside a terribly small community until the 1990s. De jure discrimination has existed for centuries, it just didn't feature in its text words that weren't invented at the time.
It's why "de facto" was considered targeted law. I don't trust the Supreme Court Republicans of the US (SCROTUS) to find that down is down or that shit stinks.
Thank you for your dissection of these arguments. Your presentation at NYU a few weeks ago was phenomenal. I think I was the only non-lawyer, journalist, or prominent activist in the room but you and all of the panelists were excellent and provided a lot of information that was extremely valuable. 🩶
If the court does go with the idea that complex medical decisions are best left to the legislature, not the courts listening to experts, will it not be directly contrary to the case overturning the Chevron Doctrine, where the courts were specifically thought to be better than experts.
Facts, schmacts. Law, schmlaw. The six conservative justices will decide from their own prejudices: Alito, what benefit white male Christians; Thomas, what benefits white male donors; Kavanaugh & Roberts, how the political winds blow. And Coney Barrett—I can’t figure her out…. No justice for trans, I fear.
Kavanaugh is so full of shit lol. “Presidential immunity” appears nowhere in the Constitution, and abortion and pregnancy can be about as nuanced of a medical issue as you can get, and yet he has no problems getting the Court involved in either of those. It’s cowardly to see people tasked with defending the Constitution whither when confronting important issues because they’re “too complicated/controversial”
I think transgender people without a doubt meet the criteria for being a suspect class. I think it’s again pathetic how the justices need “history and tradition” implicitly for everything, as Barrett seemed to indicate. Have they ever thought about the fact that maybe transgender people didn’t face de jure discrimination because the concept of being transgender wasn’t even in the common lexicon? Doesn’t mean transgender people themselves didn’t exist - but why do you need a history of formal laws oppressing your group to count as a suspect class?
You recall correctly. The parents petition for cert waited in limbo, so the US DoJ applied for cert itself, but only asserted an interest in the equal protection question. When the justices accepted the DoJ petition and not the Parents', that limited the relevant issues to EqPrt. That is also why the case was styled "US v Skrmetti" on the SCOTUS docket instead of LW v Skrmetti.
And, not for nothing, but reportedly the justices considered the petition(s) for cert 6 separate times without deciding one way or another before finally accepting the DoJ application.
If the decision is likely to not come out until the summer, what happens when the Trump justice department withdraws the case? Will the decision ever come? Especially worries since I understand that the court only fook the appeal from the government, if I'm not mistaken.
If the court takes too long with the case, the Trump administration could try to complicate things by telling the court as soon as Trump takes office that the federal government is changing its position in the case. Although this wouldn’t necessarily mean the court needs to dismiss the case — since the plaintiffs are in the case — it could lead the court to dismiss this petition. At that point, maybe they would grant certiorari on the Tennessee plaintiff’s petition, or just grant certiorari as to their equal protection question. Perhaps at that point, the court could avoid arguments and just seek supplemental briefing or hold arguments this term, but it could send the case to the fall. Regardless, and to return to the bottom line, it would be more complicated.
I do not get this entire anti- trans thing. How can any of it matter to people who don’t know the children involved? Why has such a personal decision become political? But then, why would I be puzzled. All over the country, politicians, or should I say, Republican politicians, are legislating medical issues that kill people because they are not doctors and do not understand either the human body or medicine.
It’s essential in keeping trans people as a bogeyman. Early transition helps with having less mental anguish and in passing, and how do you know who to target in public life if they pass? How do they know that they are less than, a disgusting freak, if they can just blend in and live like people do? They might think they are human and have rights and deserve respect the same as everyone else, and bigots just can’t have that. Well, they say they want to protect children, but somehow they don’t have any problems with male genital mutilation, or malnourished children… or, indeed kids abused by priests and such.
The differences of sexual development that make sex ambiguous occur in about 1 out of 5500 people; for the remaining 5499, “sex assigned at birth” is just sex, without any need for confusion: male and female. And such things have nothing to do with destroying the bodies of gender nonconforming children.
I believe that having sexual functioning, such as ability to orgasm, and the chance to have children, are important. I think children are specifically poorly qualified to make life-altering decisions about losing them. And bullying their parents with false claims of suicide risk is unconscionable.
“Marci Bowers is the surgeon who treated reality TV star Jazz Jennings, whose life and transition are chronicled in the show I Am Jazz. Describing her treatment of Jennings, Bowers states,“If you’ve never had an orgasm pre-surgery, and then your puberty's blocked, it's very difficult to achieve that afterwards. I consider that a big problem, actually. It's kind of an overlooked problem that in our ‘informed consent’ of children undergoing puberty blockers, we’ve in some respects overlooked that a little bit .... if they’re not able to be responsive as a lover ... how does that affect their long-term happiness?” In her show, Jennings described that she had never had an orgasm.”
I transitioned from male to female as an adult. Dr. Bowers was my surgeon. I certainly am able to orgasm years after my surgery. On the issue of informed consent, Dr. Bowers told me before the surgery that I might not be able to orgasm, that that was a risk associated with the surgery. Deciding to go forward with the surgery was an easy choice for me.
The topic of the supreme court case, the OP, and my comments, is treatment of minors; your experience, as an adult, is not relevant to that topic. When you were told you might not be able to orgasm, you knew what that meant, and what a sex life is. A child might well not. You could have known what having children would be like; indeed, in various famous case, men with families have transitioned. A child could not.
The lack of evidence that these treatments are in any way “life saving”, combined with their lifelong destruction of the child’s sexual function, and the inability of children to meaningfully consent, does lead to a bit of concern.
Unfortunately, early transition seems to prevent suicide. Many people who’ve been able to transition talk about gender dysphoria and their suicidal thoughts before they transitioned. Very few of them later regret their decision and wish to go back to the sex with which they were born.
There was a post up several days ago from an endocrinologist about variations in the genetic makeup of sex that was interesting, even though confusing to me. But basically there are people who present naturally as one sex yet their genome shows they are not purely that sex. The doctor’s point was that sex isn’t simple and that there are variations that are more complex than we know.
Not everyone who transitions has sex change surgery either. Some opt to keep their sex organs intact. You may believe that fertility is important but there are plenty of people who do not, even among heterosexuals and homosexuals. I think it’s a private matter.
As a trans person who blogged about this stuff twice this week (over on Wonkette -- I actually live-blogged the oral arguments which went okay except for screwing up the name of who was talking a few times. video would have helped with that, damn you SCOTUS) I've registered disagreement, disappointment, or surprise with a number of aspects of courts' handling of trans health care bans, but the most outrageous (to me) was Coney Barrett who clearly didn't know shit about the history of anti-trans legislation.
Our esteemed host here at Law Dork points out North American examples in our legal tradition, but such de jure attacks existed in British law during colonial days as well, and the Dobbs court reminds us that's fair game for establishing a legal history and tradition. Anyone not as knowledgeable as Mr. Geidner can easily learn such things with 30 seconds of googling, and yet Coney Barrett -- who has a staff to prepare her for her participation in oral arguments -- was completely ignorant.
I mean, hate me if you want, but you're an associate justice of the US Supreme Court: when a case involving trans people reaches your bench you should still do your damn job.
Absolute truth. I could not believe that she, a Supreme Court justice, could be so proudly ignorant.
It was amazing to hear the justices asking about historical de jure discrimination against transgender people, when as recently as two decades ago people routinely talked about cross-dressers and transvestites - NOT about transgender people at all.
How much historical de jure decriminalization do they think bigots can conjure up in a short time, especially if de facto discrimination was accomplishing the bigots' purposes?
yes. She seems to think that there was no de jure discrimination against transgender people if the law didn't use the word "transgender" in its text.
Of course the word itself didn't exist until the 1980s and wasn't known outside a terribly small community until the 1990s. De jure discrimination has existed for centuries, it just didn't feature in its text words that weren't invented at the time.
That's the BS du'jour every day for the last and next ever. If the law doesn't say "fuck you ____", the law isn't actually biased against ____.
It's why "de facto" was considered targeted law. I don't trust the Supreme Court Republicans of the US (SCROTUS) to find that down is down or that shit stinks.
Thank you for your dissection of these arguments. Your presentation at NYU a few weeks ago was phenomenal. I think I was the only non-lawyer, journalist, or prominent activist in the room but you and all of the panelists were excellent and provided a lot of information that was extremely valuable. 🩶
So glad you attended — and thank you!
If the court does go with the idea that complex medical decisions are best left to the legislature, not the courts listening to experts, will it not be directly contrary to the case overturning the Chevron Doctrine, where the courts were specifically thought to be better than experts.
Facts, schmacts. Law, schmlaw. The six conservative justices will decide from their own prejudices: Alito, what benefit white male Christians; Thomas, what benefits white male donors; Kavanaugh & Roberts, how the political winds blow. And Coney Barrett—I can’t figure her out…. No justice for trans, I fear.
Kavanaugh is so full of shit lol. “Presidential immunity” appears nowhere in the Constitution, and abortion and pregnancy can be about as nuanced of a medical issue as you can get, and yet he has no problems getting the Court involved in either of those. It’s cowardly to see people tasked with defending the Constitution whither when confronting important issues because they’re “too complicated/controversial”
I think transgender people without a doubt meet the criteria for being a suspect class. I think it’s again pathetic how the justices need “history and tradition” implicitly for everything, as Barrett seemed to indicate. Have they ever thought about the fact that maybe transgender people didn’t face de jure discrimination because the concept of being transgender wasn’t even in the common lexicon? Doesn’t mean transgender people themselves didn’t exist - but why do you need a history of formal laws oppressing your group to count as a suspect class?
1. Gorsuch’s silence bespeaks his desire to succeed Roberts.
2. I thought there was a due process issue concerning parental rights. Evidently that fell out somewhere along the way.
If I recall correctly, the Supreme Court declined to hear the due process part of the case, wanting to focus only on the equal protection elements.
You recall correctly. The parents petition for cert waited in limbo, so the US DoJ applied for cert itself, but only asserted an interest in the equal protection question. When the justices accepted the DoJ petition and not the Parents', that limited the relevant issues to EqPrt. That is also why the case was styled "US v Skrmetti" on the SCOTUS docket instead of LW v Skrmetti.
And, not for nothing, but reportedly the justices considered the petition(s) for cert 6 separate times without deciding one way or another before finally accepting the DoJ application.
Thank you for acknowledging that restricting transgender healthcare costs lives in the headline.
If the decision is likely to not come out until the summer, what happens when the Trump justice department withdraws the case? Will the decision ever come? Especially worries since I understand that the court only fook the appeal from the government, if I'm not mistaken.
I've discussed this in other pieces: https://www.lawdork.com/p/scotus-trans-care-and-history
If the court takes too long with the case, the Trump administration could try to complicate things by telling the court as soon as Trump takes office that the federal government is changing its position in the case. Although this wouldn’t necessarily mean the court needs to dismiss the case — since the plaintiffs are in the case — it could lead the court to dismiss this petition. At that point, maybe they would grant certiorari on the Tennessee plaintiff’s petition, or just grant certiorari as to their equal protection question. Perhaps at that point, the court could avoid arguments and just seek supplemental briefing or hold arguments this term, but it could send the case to the fall. Regardless, and to return to the bottom line, it would be more complicated.
That, in turn, links to another piece discuss administration changes: https://www.lawdork.com/p/presidential-election-and-the-new-scotus-term
I'm on the edge of my seat waiting to hear what's coming out of this Supreme Court?!! Thank You for sharing this evening and will reStack ASAP 🙏💯👍
I do not get this entire anti- trans thing. How can any of it matter to people who don’t know the children involved? Why has such a personal decision become political? But then, why would I be puzzled. All over the country, politicians, or should I say, Republican politicians, are legislating medical issues that kill people because they are not doctors and do not understand either the human body or medicine.
It’s essential in keeping trans people as a bogeyman. Early transition helps with having less mental anguish and in passing, and how do you know who to target in public life if they pass? How do they know that they are less than, a disgusting freak, if they can just blend in and live like people do? They might think they are human and have rights and deserve respect the same as everyone else, and bigots just can’t have that. Well, they say they want to protect children, but somehow they don’t have any problems with male genital mutilation, or malnourished children… or, indeed kids abused by priests and such.
There is no scientifically valid evidence that early transition reduces suicide; the only real study suggests that it makes no difference. https://mentalhealth.bmj.com/content/27/1/e300940
The differences of sexual development that make sex ambiguous occur in about 1 out of 5500 people; for the remaining 5499, “sex assigned at birth” is just sex, without any need for confusion: male and female. And such things have nothing to do with destroying the bodies of gender nonconforming children.
I believe that having sexual functioning, such as ability to orgasm, and the chance to have children, are important. I think children are specifically poorly qualified to make life-altering decisions about losing them. And bullying their parents with false claims of suicide risk is unconscionable.
Why do you think that transgender people cannot orgasm post gender conforming surgery? Do you even know any transgender people?
https://www.psychologytoday.com/us/blog/women-who-stray/202111/does-affirmative-treatment-impair-sexual-response-in-trans-youth
“Marci Bowers is the surgeon who treated reality TV star Jazz Jennings, whose life and transition are chronicled in the show I Am Jazz. Describing her treatment of Jennings, Bowers states,“If you’ve never had an orgasm pre-surgery, and then your puberty's blocked, it's very difficult to achieve that afterwards. I consider that a big problem, actually. It's kind of an overlooked problem that in our ‘informed consent’ of children undergoing puberty blockers, we’ve in some respects overlooked that a little bit .... if they’re not able to be responsive as a lover ... how does that affect their long-term happiness?” In her show, Jennings described that she had never had an orgasm.”
I transitioned from male to female as an adult. Dr. Bowers was my surgeon. I certainly am able to orgasm years after my surgery. On the issue of informed consent, Dr. Bowers told me before the surgery that I might not be able to orgasm, that that was a risk associated with the surgery. Deciding to go forward with the surgery was an easy choice for me.
https://marcibowers.com/transfem/dear-colleagues-clients-and-friends/
The topic of the supreme court case, the OP, and my comments, is treatment of minors; your experience, as an adult, is not relevant to that topic. When you were told you might not be able to orgasm, you knew what that meant, and what a sex life is. A child might well not. You could have known what having children would be like; indeed, in various famous case, men with families have transitioned. A child could not.
The lack of evidence that these treatments are in any way “life saving”, combined with their lifelong destruction of the child’s sexual function, and the inability of children to meaningfully consent, does lead to a bit of concern.
Unfortunately, early transition seems to prevent suicide. Many people who’ve been able to transition talk about gender dysphoria and their suicidal thoughts before they transitioned. Very few of them later regret their decision and wish to go back to the sex with which they were born.
There was a post up several days ago from an endocrinologist about variations in the genetic makeup of sex that was interesting, even though confusing to me. But basically there are people who present naturally as one sex yet their genome shows they are not purely that sex. The doctor’s point was that sex isn’t simple and that there are variations that are more complex than we know.
Not everyone who transitions has sex change surgery either. Some opt to keep their sex organs intact. You may believe that fertility is important but there are plenty of people who do not, even among heterosexuals and homosexuals. I think it’s a private matter.
Child Abuse. Truly shocking. The child is too young to decide so a lunatic parent can play God.
To be fair to parents, major medical associations do assert that transition is an appropriate standard of medical care.