Where is the outrage over Skrmetti?

On the far right's campaign to create uncertainty over gender-affirming medical care for minors — and the powerful institutions that helped along the way.

The response to Wednesday’s U.S. Supreme Court decision upholding Tennessee’s law barring transgender minors from obtaining gender-affirming medical care has been muted at best.

In its U.S. v. Skrmetti ruling, the Supreme Court’s Republican appointees shaved off the edges — if not more central parts — of the Fourteenth Amendment’s Equal Protection Clause in order to uphold laws that bar an exceptionally small number of teens from receiving a type of medical care that only one group of teens need.

Addressing this formal attack on transgender people by the government — de jure discrimination, one might even call it — is, as Justice Sonia Sotomayor made clear in her dissent on Wednesday, the work that the Equal Protection Clause is supposed to do.

One would expect more outrage.

But Wednesday was the result of a long-term campaign that ultimately succeeded. As same-sex couples succeeded in obtaining marriage equality in 2015, the far-right organizations who had used their opposition to those couples’ marriage rights to fund their work needed a new cause.

The far right moved on to attacking transgender people. The animosity from the right — and others — toward trans people wasn’t new, but as the marriage outcome became clear, the shift of focus began.

They went after trans people’s use of bathrooms. North Carolina’s 2016 “bathroom bill“ backfired. Gov. Pat McCrory lost re-election, and the swing state has been led by Democratic governors since. But, bathrooms have always been targets for moral panic, so the issue eventually returned.

Starting in Idaho in 2020, they went after trans people’s participation in sports. That got some traction, particularly as the campaign moved on.

Then, starting in Arkansas the next year, they went after trans kids’ medical care.

They were just going to keep going until they got something that pushed them into the spotlight.

Even when lawmakers started passing bans on gender-affirming medical care for transgender minors, however, judges of all stripes started blocking them as likely unconstitutional.

This was not, Trump appointees even agreed, a close question.

“At bottom, sex-based classifications are not just present in [Indiana]'s prohibitions; they're determinative,” U.S. District Judge Patrick Hanlon, a Trump appointee, wrote in blocking Indiana’s law back in June 2023.

As another Trump appointee, U.S. District Judge Eli Richardson, wrote later that month in blocking Tennessee’s ban, “Though the Court would not hesitate to be an outlier if it found such an outcome to be required, the Court finds it noteworthy that its resolution of the present Motion brings it into the ranks of courts that have (unanimously) come to the same conclusion when considering very similar laws.“

But, as that political effort was happening, something else was going on as well.

The right wanted to turn these issues — largely non-issues in the vast majority of people’s lives — into Big Issues of Major Concern. They tried for years care of the right-wing noise machine, and that pushed the stories out. Then, however, the people who wanted to make trans kids’ lives an issue convinced some mainstream publications to pick up this as their issue.

The Atlantic put its “just asking questions” story about trans kids on their cover in the summer of 2018. Seeing smoke, The New York Times began looking for fire with a series of longform stories targeting trans youth care. They weren’t alone. (Even on other trans issues, ahem.) In the end, so-called “thought leader” publications played key roles in bringing forth this week, giving oxygen to extremists and creating a story.

The path since is well worn at this point, and part of the story is how the LGBTQ rights groups responded, but the right’s effort succeeded. It created doubt.

Or, as Chief Justice John Roberts put it on Wednesday, “Tennessee concluded that there is an ongoing debate among medical experts regarding the risks and benefits associated with administering puberty blockers and hormones to treat gender dysphoria, gender identity disorder, and gender incongruence. SB1’s ban on such treatments responds directly to that uncertainty.“

Because of the court’s circular holdings in the case that the law doesn’t classify on the basis of sex of transgender status despite obviously doing both, as discussed here on Wednesday, that uncertainty was enough.

Had the court properly held that Tennessee’s law should be subjected to intermediate scrutiny, then the case would have gone back to the lower courts for an actual look at the evidence. But, because rational basis was applied, “uncertainty,” Roberts held, would do.

Justice Clarence Thomas, in a concurring opinion, went on to make explicit what was implicit in Roberts’s majority opinion with his polemic against “the authority of the expert class.” In so doing, Thomas quoted from and cited the New York Times repeatedly for what essentially became its ongoing project to question gender-affirming medical care for trans minors in a way it has not done for other medical decisions with much higher regret rates or for basically anything other non-presidential topic (besides criminal justice progressives) in recent years.

Here’s the problem with the New York Times’s approach to this coverage: If you go into coverage with the resources of the New York Times looking for people to tell you there’s a problem, you’ll find a problem. That then creates a story. And, if you’re the New York Times, more people will flock to you to ask you to tell that story — no matter how contorted the focus of your reporting becomes because of that.¹

Simply put, the New York Times failed at protecting the vulnerable, instead choosing to be partners in stoking a moral panic.

And, so it went. An issue that the far right wanted questioned — in order to be eliminated — was questioned. With that, “uncertainty” was manufactured.

From there, it was an alarmingly quick path to Wednesday.

And, because of their role in this, some of those with the biggest megaphones to push back against this attack on a small group of people being targeted by all three branches of government have been silent — or worse.

The New York Times decided to run an 11,000-word story on Thursday from investigative reporter (but clearly not legal reporter) Nicholas Confessore attacking the effort to protect trans kids — taking aim at the ACLU and Chase Strangio, the trans lawyer who argued the case for the trans plaintiffs at the Supreme Court; the Biden administration and its policies that were in accordance with the Equal Employment Opportunity Commission, Obama administration, and Supreme Court; and others — without ever acknowledging the Times’s role in laying the groundwork for the attack on trans kids.

I plan to return to this in more depth (and have already noted some alarming errors), but nowhere is the way in which bias contorts Confessore’s reporting in the piece more clear than when he opens a section of this report by referring to actions from the far right in 2021 as a “counterattack” to the Biden administration — rather than a continuation of an attack that the right began more than a half-decade earlier.

And that’s not even addressing the fact of the focus of that attack: Letting children be themselves.

1. No, I’m not linking to all of the stories. They are readily available. Plus, Thomas provided cites.