The politicization of transgender children in the US is one of the most astounding coups of propaganda and organized animus in recent history. Rarely has so much attention and rage been directed at such a minuscule number of people, and more rarely, still, have those people been the most vulnerable and blameless among us: kids and teens.
The first state to pass a ban on transition-related care for minors was Arkansas, in April 2021; less than four years later, more than half of states have such a ban on the books. In 2016, North Carolina lost an estimated $3.76bn in revenue following boycotts after they passed a law banning trans people, including transgender students, from using appropriate restrooms in public facilities; now, 14 states have such bathroom bans on the books, and the boycotts have receded.
These changes in public attitudes towards trans youth – from a broad if imperfect sentiment of tolerance to a widespread and politically weaponized attitude of hostility toward a small minority of kids – did not emerge by accident. It was the product of a deliberate, conscious effort to radicalize large swaths of the United States, and significant chunks of state policy, into a hostility towards a few children.
That effort seems set to bear fruit now, at the US supreme court, in US v Skrmetti, a lawsuit brought by the ACLU and the Biden Department of Justice challenging Tennessee’s HB1, a sweeping ban on transition-related care for minors that was passed in 2023. The law prohibits any puberty blockers or hormones from being prescribed for the purposes of gender transition, but it does not prohibit these medications from being prescribed for any non-transition-related purpose. A minor can be prescribed puberty blockers, for instance, if their doctor believes they are experiencing early onset, or “precocious”, puberty; they cannot be prescribed puberty blockers to delay the onset of a puberty that may change their bodies in ways they do not desire for gender identity-related reasons.
That means, too, that a child assigned male at birth could access, say, testosterone treatment, but a child assigned female at birth could not. In oral arguments on Wednesday, solicitor general Elizabeth Prelogar and Chase Strangio of the ACLU – the first trans attorney to argue before the supreme court – explained that this was a straightforward case of sex discrimination, and hence needed to be subjected to a heightened standard of judicial review under the 14th amendment’s equal protection clause.
It will not be. A majority of the court’s conservatives seemed poised to uphold the ban on transgender healthcare, though for a variety of different reasons. Brett Kavanaugh made his usual mealy-mouthed paean to states’ rights, an argument he always makes in questions of federally guaranteed equality provisions, but not before extolling the hypothetical suffering of teenagers who may access gender-affirming care but then later come to regret it. (One wonders if there are any choices from his own adolescence that Brett Kavanaugh has come to regret.) Clarence Thomas and chief justice John Roberts, meanwhile, both advanced the idea that the physiological differences between male and female bodies could moot the equal protection clause’s reach, giving states broad leeway to regulate medicine in ways that would uphold gender hierarchy.
For his part, Samuel Alito also seemed interested in the idea that states might have a right to effect gender discrimination via their regulation of medicine. He repeatedly cited the 1974 case Geduldig v Aiello, in which the supreme court ruled that states could discriminate on the basis of pregnancy, and that pregnancy discrimination was not sex discrimination – because even though only female people become pregnant, not all of them are pregnant all of the time. (At the time, Congress found the outcome in Geduldig so egregious that it passed a law clarifying that pregnancy discrimination does count as sex discrimination for the purposes of federal civil rights law, and the precedent was largely mooted, but Alito’s controlling opinion in Dobbs has revived it.)
But Alito, true to form, did not confine his opining to the notion that discrimination against trans people does not count as sex-based discrimination: he went on to suggest that trans people are not quite real, peppering Strangio, in a scene that seemed intended to humiliate the trans attorney, with questions about whether trans identity was truly an “immutable” characteristic. For his part, Strangio responded with a dignity and respect that Alito’s line of questioning did not merit.
It was not the only low moment. James Matthew Rice, the Tennessee solicitor general who defended the ban in court, repeatedly compared gender affirming care with suicide, as well as to lobotomies and eugenics. During his time, justices Ketanji Brown Jackson and Sonia Sotomayor, with occasional assists from Elena Kagan, tried to chase Rice down on the inconsistencies in his own argument.
Tennessee claimed, after all, that the law did not discriminate on the basis of patients’ sex, but rather on the basis of the purpose of their treatment; when the liberal justices pointed out that this was a distinction without a difference, because the purpose of the treatment was dependent on the patients’ sex, Rice simply repeated his assertion that there was a difference, there, somewhere. Jackson, in particular, worked to get Rice to explain his position for some time. He declined to.
To call the Tennessee ban sex-neutral is laughable, almost insulting. The statute itself makes gender conformity its explicit justification in its text, saying that it aims to prohibit “sex inconsistent treatment”, or anything that “might encourage minors to become disdainful of their sex”. The law has long included sex role stereotyping within the purview of sex discrimination; Tennessee has sought to enforce sex roles, and sexed embodiment, with the force of the state. There is no good faith reading of the law that would allow it to withstand the scrutiny that the 14th amendment requires. But luckily for Tennessee, this is not a good faith court.
Moira Donegan is a Guardian US columnist
