Skrmetti: It Was THAT Bad

Sorry.

Photo by Alexander Grey on Unsplash

Yesterday morning the Supreme Court heard oral argument in US v. Skrmetti, the Biden administration’s challenge to Tennessee’s ban on gender-affirming care for minors.

As we expected, it was rough. It now seems almost inevitable that at probably all six (but at least five) conservative justices will force transgender children to go without treatments that have been endorsed by every major medical association in America. Indeed many of those organizations, including the American Academy of Pediatrics, the American Psychological Association, and numerous practitioners filed amicus briefs in support of the petitioners in this case.

None of that mattered to the Supreme Court’s conservatives, who will accomplish this unspeakable act of cruelty by pretending that a law which by its own language discriminates on the basis of sex somehow has nothing to do with gender discrimination.

There were a few bright spots. The ACLU’s Chase Strangio, the lawyer for the children challenging SB1, became the first openly trans person to argue before the Supreme Court. He was greeted with cheers when he left the courthouse, as was Solicitor General Elizabeth Prelogar, one of the finest lawyers of this era. But in the main, it was an ominous day for LGBTQ+ Americans, us as allies, and anyone who cares about civil liberties.

Tennessee’s Bill

Tennessee’s SB1 states that:

[A] healthcare provider shall not knowingly perform or offer to perform on a minor… a medical procedure if the performance or administration of the procedure is for the purpose of: (A) Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor's sex; or (B) Treating purported discomfort or distress from a discordance between the minor's sex and asserted identity.

It explicitly bars minors from accessing medical treatment for “gender dysphoria, gender identity disorder, gender incongruence, or any mental condition, disorder, disability, or abnormality” arising out of a conflict between the sex they were assigned at birth and their gender identity.

As Prelogar and Strangio pointed out, SB1 is a sex-based classification, allowing boys who were assigned male at birth to access testosterone, but not boys who were assigned female at birth. And to avoid any doubt about what they were doing, the Tennessee legislature explicitly incorporated legislative findings into the statute, asserting that the state “has a legitimate, substantial, and compelling interest in encouraging minors to appreciate their sex,” and in “prohibiting medical procedures that … might encourage minors to become disdainful of their sex.”

Nevertheless, Tennessee Solicitor General J. Matthew Rice insisted that the legislature never intended to discriminate on the basis of sex.

“We use the words ‘inconsistent with sex’ to describe a single prohibited medical purpose,” he babbled. “We do not use it to draw lines between males and females.”

“The whole thing is imbued with sex,” Justice Elena Kagan replied incredulously. “You might have reasons for thinking that it's an appropriate regulation, and those reasons should be tested and respect given to them, but it's a dodge to say that this is not based on sex, when the medical purpose is utterly and entirely about sex.”

That dodge is an effort to get the law reviewed under a more deferential standard by the Court.

By pretending that SB1 had nothing to do with sex, Tennessee insisted that the appropriate standard of review was rational basis scrutiny — the level typically reserved for evaluating economic or social welfare laws. Under this rubric, a law is presumptively valid and the state must only prove that it is rationally related to a legitimate government interest.

Prelogar and Strangio argued that, because SB1 by its own terms draws classifications on the basis of sex, the law must withstand “heightened” or “intermediate” scrutiny, forcing Tennessee to prove that it furthers an important government interest and is substantially related to that interest.

That position was endorsed by Judge Eli Richardson of the Middle District of Tennessee, who blocked the law from going into effect, holding that “SB1 contains a sex-based classification on its face, and therefore intermediate scrutiny is warranted.”

Tennessee argued that it had a compelling interest in protecting children from gender-confirming care, which it characterized as dangerous and untested. But the trial judge disagreed, calling the state’s witnesses “minimally persuasive,” and noting that “all major medical organizations oppose outright bans on gender-affirming medical care for adolescents with gender dysphoria.” Judge Richardson preliminarily enjoined the state from enforcing SB1, allowing children to continue receiving treatment recognized by the medical establishment and safe and necessary, under the supervision of doctors, and with the approval of their parents.

If the Law Is Against You, Relitigate the Facts

The Supreme Court is theoretically bound by the factual record developed below, but the Roberts Court has been notoriously willing to disregard or even lie about the facts and substitute its own warped view of reality. And so Justice Alito simply disregarded Judge Richardson’s extensive factual findings, along with the amicus briefs filed by every major American medical organization, blustering at length about the “state of medical evidence at the present time” and excoriating the Justice Department for having “relegated the Cass Report to a footnote.”

The Cass Report from the UK and general handwaving in the direction of “Sweden” are well-understood shorthand in the anti-trans right. While conservatives are wont to sneer at scientific and legal findings from not America, Europe’s recent retreat from relatively liberal policies with regard to gender-confirming care is now held up as a model in the war on transgender Americans. And so Alito, who is steeped in rightwing culture war memes, ignored both the factual record below and the virtually uncontradicted consensus of American medical professionals, instead relying on the Cass Report, which he claimed “found a complete lack of high-quality evidence showing that the benefits of the treatments in question here outweigh the risks.”

That’s not true, although the Cass Report is skeptical about the value of gender-affirming care. But a recent Yale study called “An Evidence-Based Critique of the Cass Review” concludes that the Cass Report “does not follow established standards for evaluating evidence and evidence quality,” “misinterprets and misrepresents its own data,” “levies unsupported assertions… that have been disproved by sound evidence,” and has “serious methodological flaws, including the omission of key findings in the extant body of literature.”

None of this should have mattered yesterday, since the Supreme Court is an appellate body that does not make factual findings.

“It’s outside the record in this case,” Prelogar pleaded. “It wasn’t before the district court.”

But Alito was not persuaded, and neither were Chief Justice John Roberts and Justice Kavanaugh.

“It's obviously evolving debate,” Kavanaugh arglebargled. “Just in the last couple years in Europe, big changes in terms of how they're thinking about it and how they're thinking about these risks and benefits … If it's evolving like that and changing and England's pulling back and Sweden's pulling back, it strikes me as, you know, a pretty heavy yellow light, if not red light, for this Court to come in, the nine of us, and to constitutionalize the whole area.”

As SG Prelogar gamely attempted to explain, “if you actually look at how those jurisdictions are addressing this issue, they have not outright banned this care.” In fact, unlike Tennessee, the socialized health care system in the United Kingdom allows hormone therapy to adolescents age 16 and older, and permits puberty blockers where medically necessary.

The Incredible Vanishing Bostock

Perhaps the most bizarre aspect of the morning was Justice Gorsuch’s complete silence. Gorsuch can usually be counted on to present — at length — what he thinks of as a brilliant hypothetical that demolishes the liberal position. And yet the typically loquacious justice said not one word during the entire two-plus hours of oral argument.

Perhaps he was haunted by the specter of his 2017 opinion in Bostock v. Clayton County, in which a six-justice majority decreed that discrimination against trans people is discrimination “because of sex.”

“When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex,” he wrote. “By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.”

Although Bostock interpreted Title VII of the Civil Rights Act of 1964 and not a constitutional provision, its reasoning did not depend on any particular statutory language. Instead, the Supreme Court said lexicographically that in order to discriminate on the basis of transgender status, one must first discriminate on the basis of sex.

“We agree that homosexuality and transgender status are distinct concepts from sex,” he scoffed, as if anticipating Tennessee’s argument. “But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

And yet Justice Alito began his lengthy lecture to SG Prelogar by tut-tutting that obviously Bostock had no relevance because it merely interpreted “particular language in a particular statute” — meaning Title VII — and Skrmetti wasn’t a case of statutory interpretation.

Prelogar countered that, irrespective of whether or Bostock applied (and it clearly should), the logic was the same: If sex is even one factor in a classification decision under the Fourteenth Amendment, that triggers heightened scrutiny. Her concession that Bostock didn’t apply, however, left the Supreme Court free to revisit the question as to whether singling out trans kids amounts to discrimination on the basis of sex.

Justice Amy Coney Barrett, channeling her best Anatole France, suggested that the burdens of SB1 “fall equally on boys and girls because neither can transition,” which led Justice Ketanji Brown Jackson to muse that the same logic was used to defend laws banning interracial marriage, which forbade all races equally from intermarrying.

Justice Barrett followed up by asking if there were really examples of historical “de jure” discrimination against trans people; that is, by law, as opposed to social stigmatization. An astonished Chase Strangio rattled off a list: bathroom bans, laws prohibiting cross-dressing, and a 200-year prohibition on transgender people serving in the military.

“But are there any others?” wondered Barrett.

Similarly, Clarence Thomas came out of the gate arguing that SB1 was really discrimination on the basis of age, not sex. Solicitor General Prelogar gently reminded him that laws that discriminate on the basis of both sex and age still discriminate on the basis of sex.

An Uphill Battle

By forcing the SG to debate the underlying facts, the conservative justices were able to conveniently sidestep the law. By dint of Alito’s snark and Kavanaugh’s aw shucks, ahm just asking questions act, they could pretend to be weighing competing scientific claims and avoid the reality of a blatantly discriminatory statute that should clearly be evaluated under intermediate scrutiny.

If the conservatives get their way and rational basis scrutiny applies, Tennessee SB1 will almost certainly be upheld on the back of nonsensical claims about the supposed harms of gender-affirming care along with the state’s “legitimate interest” in ensuring that children “avoid disdain” and “appreciate their sex.”

And that’s why today was a disaster. Because it’s clear that the Supreme Court will affirm the Sixth Circuit and hold as a matter of law that discriminating against trans kids is somehow not discriminating on the basis of sex, and that therefore rational basis scrutiny applies. That decision will draw a bitter dissent from the liberal wing, penned by either Justice Sonia Sotomayor or Justice Elena Kagan, both of whom were apoplectic at the geyser of nonsense spewing forth from the Tennessee Solicitor General.

That will be cold comfort, particularly given that today’s oral argument will usher in similar bans in vast swathes of the country. And Tennessee, which has already passed dozens of laws targeting trans people, will almost certainly amend SB1 to prohibit gender-affirming care for adults as well as minors.

In other words, it’s bad, and it’s going to get much, much worse.