Top 5 highlights from day one in landmark transgender case
The US Supreme Court heard oral arguments yesterday in United States v. Skrmetti, a pivotal case that will determine whether states can ban mutilative procedures for children like puberty blockers, cross-sex hormones, and genital surgeries.
The US Department of Justice is suing Tennessee, one of 26 states that have laws against medical mutilation for minors. Tennessee’s legislature passed a law last year prohibiting medical providers from giving such medical interventions to children. The DOJ is alleging that the law discriminates based on sex, despite its equal application to males and females.
A pivotal argument in this case is whether “gender-affirming care” is healthy for kids. Gender activists claim these procedures are critical for the mental health of gender dysphoric children and that they are reversible.
Evidence shows that both those claims are untrue. “Gender-affirming care” is medical mutilation that causes permanent sterility, castration, and other conditions. The Cass Review, a 388-page report on the subject published this year, noted the permanent damage caused by these interventions and found scant evidence to show they improve a child’s psychological well-being. Instead, research shows a link between suicide and medical mutilation.
These findings were accepted by a federal court that recently upheld a similar ban on medical mutilation in Missouri. Expert witnesses who came to testify in favor of medical mutilation procedures were unable to bring conclusive evidence to support any health benefits of “gender-affirming care.”
Yesterday’s arguments in United States v. Skrmetti were revealing, particularly about which side the justices are leaning. Here are the top five highlights from the hearing.
1. Sotomayor: Medical mutilation is like ‘aspirin’
Supreme Court Justice Sonia Sotomayor, one of the high court’s three liberal justices, compared these mutilative procedures to taking aspirin. She made the comment in response to Tennessee Solicitor General Matthew Rice, who argued that they cause irreparable harm.
“So it becomes a pure exercise of weighing benefits versus risk and the question of how many minors have to have their bodies irreparably harmed for unproven benefits is one that is best left for —” Rice said before Sotomayor cut him off.
“I’m sorry, counselor,” Sotomayor interrupted. “Every medical treatment has a risk. Even taking aspirin.”
Observers have pointed out that like puberty blockers and cross-sex hormones, aspirin should not be given to children.
2. Jackson: Tennessee’s law is like an interracial marriage ban
Justice Ketanji Brown Jackson, another liberal justice, signaled she is also leaning toward striking down the ban. Jackson, who was nominated by Joe Biden in part because of her skin color, frequently seeks to make issues about race.
Here, too, Jackson tried to compare Tennessee’s ban on permanent mutilative medical procedures on children to bans on interracial marriages.
“They sound in the same kinds of arguments that were made back in the day, 50s and 60s, with respect to racial classifications and inconsistencies. I’m thinking in particular about Loving,” Brown said, referring to the 1967 case Loving v. Virginia that overturned a ban on interracial marriage.
“In that case, everyone seemed to concede up front that a racial classification was being drawn by the statute, the question was whether it was discriminatory because it applied to both races,” she added. “When you look at the structure of that law it looks, in terms of . . . you know you can’t do something that is inconsistent with your own characteristics, it’s sort of the same thing.”
“It’s interesting to me that we now have this different argument, and I wonder whether Virginia could have gotten away [with] what they did here by just making a classification argument the way that Tennessee is here in this case,” she added.
3. Alito: ‘Complete lack of evidence’
Justice Samuel Alito assessed the case's merits by focusing on available data. The ACLU, which is arguing the case with the DOJ, told the high court in its petition that there is “overwhelming evidence” that these medical procedures improve the mental health of dysphoric children.
Alito addressed this claim with ACLU Attorney Chase Strangio, a woman who identifies as a transgender man. He cited a finding by the Swedish National Board of Health and Welfare that the risks of medical mutilation “are likely to outweigh the expected benefits.” He also pointed to the Cass Review, “which found a complete lack of evidence showing that the benefits of the treatments in question here outweigh the risks.”
As for the DOJ and ACLU’s claim that refusing “gender-affirming care” increases the risk of suicide, Alito again pointed to the Cass Review, which says “there is no evidence that gender-affirmative treatments reduce this.” Strangio tried to counter that this refers to suicide, not suicidality, which refers to suicidal thoughts, plans, and attempts. She claimed that studies show suicidality is reduced by medical mutilation. However, the Cass Review found that the majority of these studies are so fundamentally flawed that no conclusions can be drawn from them.
4. Roberts and Kavanaugh: Leave it to the states
Chief Justice John Roberts and Justice Bret Kavanaugh questioned why the federal government should be involved at all, with Kavanaugh mentioning that other countries are dialing back their support for medical mutilation.
“It strikes me as 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, when the rest of the world, or at least the people who the countries that have been at the forefront of this, are pumping the brakes on this kind of treatment,” Kavanaugh said.
“If the Constitution doesn’t take sides, if there’s strong, forceful, scientific policy arguments on both sides in a situation like this, why isn’t it best to leave it to the democratic process?” he asked.
Roberts added: “We’re not the best situated to address issues like that. Doesn’t that make a stronger case for us to leave those determinations to the legislative bodies rather than try to determine them for ourselves?”
5. Solicitor general: Lack of medical mutilation increases suicide
US Solicitor General Elizabeth Prelogar made several flawed statements to the court, including the claim that suicide rates are higher among minors who are not medically mutilated. Despite the fact that Strangio, her own colleague, admitted to Justice Alito that there is no evidence for such a claim, Prelogar told Justice Sotomayor that “the rates of suicide are – are striking.” At another point, she insisted that when people with gender dysphoria go through normal puberty, it “increases the risk of suicide.”
However, Prelogar did admit that “there are effects on fertility” for minors who are given cross-sex hormone therapies, but said that according to a lower court, “many individuals who are transgender” maintain their fertility. Still, she acknowledged it “could be a hard trade-off.”
A ruling by the Supreme Court is expected this summer.
