Tangle - The Supreme Court case on healthcare for trans minors
Episode Date: December 5, 2024On Wednesday, a majority of Supreme Court justices signaled that they were willing to allow states to pass laws limiting access to treatments prescribed for transgender teens. During over tw...o hours of oral arguments in United States v. Skrmetti, a case challenging a Tennessee law banning gender transition surgeries and the use of puberty blockers and hormone therapy for transgender minors, five justices in the court’s conservative majority indicated they were likely to uphold the state’s law. The decision in Skrmetti would likely set a precedent that could affect other challenges to laws regarding transgender sports participation, bathroom use, and access to transgender care for adults.Ad-free podcasts are here!Many listeners have been asking for an ad-free version of this podcast that they could subscribe to — and we finally launched it. You can go to tanglemedia.supercast.com to sign up!You can read today's podcast here, our “Under the Radar” story here and today’s “Have a nice day” story here.Take the survey: What do you think of the Tennessee law banning access to certain treatments for transgender minors? Let us know!You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here. Our podcast is written by Isaac Saul and edited and engineered by Dewey Thomas. Music for the podcast was produced by Diet 75. Our newsletter is edited by Managing Editor Ari Weitzman, Will Kaback, Bailey Saul, Sean Brady, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo. Hosted on Acast. See acast.com/privacy for more information.
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From executive producer Isaac Saul, this is Tangle.
Good morning, good afternoon and good evening and welcome to the Tangle Podcast, the place
we get views from across the political spectrum, some independent thinking, and a little bit of my take. I'm your host, Isaac Saul. And on today's
episode, we're going to be talking about a Supreme Court case around healthcare for trans minors.
This is, as you can expect, a pretty controversial, but also very interesting Supreme Court case.
We're going to talk about exactly what's happening, what the arguments are, and I've got my take,
which is, I would say, a little not convoluted,
but it's complicated.
It's a really, really hard one.
And it was interesting to kind of dig in on the details here.
Before we jump in, though, a quick heads up
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With that, I'm gonna send it over to John
for today's main story and I'll be back for my take.
["The Last Supper"]
Thanks, Isaac, and welcome everybody.
Here are your quick hits for today.
First up, UnitedHealthcare CEO Brian Thompson
was shot and killed outside a hotel in Manhattan.
The suspect is still at large and law enforcement have not ascribed a motive to the shooting.
The French National Assembly passed a vote of no confidence against Prime Minister Michel
Barnier's coalition government, prompting his resignation after three months in the
role.
French President Emmanuel Macron is expected to name a new Prime Minister in the coming
days. Number 3.
Syrian rebels' surprise offensive against President Bashar al-Assad has expanded to
Hama, a major city in western Syria.
The rebels now control all of Idlib province and most of Aleppo province.
Number 4.
President-elect Donald Trump nominated former Securities and Exchange Commissioner Paul
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Separately, Trump
nominated tech entrepreneur Jared Isaacman for NASA Administrator. Finally, Trump announced
that Trade Advisor Pete Navarro will serve as Senior Counselor for Trade and Manufacturing.
Navarro served a four-month sentence for contempt of Congress after refusing to cooperate with
the House Select Committee investigating the January 6th Capitol riot. And number five, two children are in critical condition after a shooting at a school in
California. Authorities believe the shooter may have targeted the school because of its
affiliation with the Seventh-Day Adventist Church. CBS News 24- seven also watching closely something happening at the US Supreme Court as we speak
justices in session hearing arguments in a Tennessee case that bans gender affirming
care for minors.
Now that law prohibits puberty blockers and hormone treatments in an effort to regulate
the lives of transgender people, especially young people. On Wednesday, a majority of Supreme Court justices
signaled that they were willing to allow states
to pass laws limiting access to treatments prescribed
for transgender teens.
During over two hours of oral arguments
in United States versus Skirmetty,
a case challenging a Tennessee law
banning gender transition surgeries
and the use of puberty blockers and hormone therapy for transgender minors, five justices in the court's conservative
majority indicated they were likely to uphold the state's law. The decision, Inscrimedi would
likely set a precedent that could affect other challenges to laws regarding transgender sports
participation, bathroom use, and access to transgender care for adults. In 2023, the Tennessee legislature passed SB1,
a law banning surgical procedures and the administration of puberty blockers or hormones
for the purposes of enabling a minor to identify with or live as a purported identity inconsistent
with the minor's sex. SB1 allows for these treatments in cases of congenital defects,
not consistent with normal
physical development, but not to treat gender dysphoria, gender identity disorder, gender
incongruency, or any mental condition, disorder, disability, or abnormality.
Three transgender teens challenged the ban, arguing that the law violated the Constitution's
Equal Protection Clause.
A federal judge agreed, saying that the treatments were not speculative or dangerous in issuing a preliminary injunction preventing the law from
going into effect. The state then appealed to the Sixth Circuit Court, which stayed the lower court's
decision and reinstated the ban. The plaintiffs petitioned the Biden administration to appeal
the case to the Supreme Court, which it did in November of 2023. The court agreed to hear the case in June,
with the U.S. Solicitor General Elizabeth Prelogger representing the plaintiffs and
Tennessee Attorney General Jonathan Scrametti arguing for the state.
The court is determining whether SB1 unconstitutionally makes sex-based
distinctions. The Biden administration and the families argue that since the law allows
everyone except for transgender minors access to puberty blockers and hormones,
the law therefore discriminates on the basis of sex and should be subjected to heightened scrutiny.
The challengers also grounded their argument in the Supreme Court's 2020 decision in Bostock v. Clayton County,
where the court found that sex-based federal employment laws also protect transgender employees.
Tennessee has countered that the law is simply banning certain usages of medical procedures
to protect the health and welfare of minors.
The law is not sex-based discrimination, the state says, as it treats boys and girls the
same, adding that being transgender is not a quasi-suspect classification that would
allow for special protections.
During oral arguments, the court's three liberal justices, justices Katanji Brown Jackson,
Elena Kagan, and Sonia Sotomayor, seemed receptive to the challenger's argument.
The evidence is very clear that there are some children who actually need this treatment,
Sotomayor said.
Conversely, five of the court's conservative justices, justices Samuel Alito, Amy Coney
Barrett, Brett Kavanaugh, Clarence Thomas, and Chief
Justice John Roberts all signaled skepticism with the challenge.
Roberts and Kavanaugh focused on not wanting the courts to settle medical issues, while
Alito added that he was concerned that siding with the plaintiffs would invite endless litigation.
Justice Neil Gorsuch, who wrote the majority opinion in Bostock, was silent through oral
arguments.
Today, we'll get into what the right and the left
are saying about the oral arguments
in Skirmety versus United States, and then Isaac's tape.
["Skirmety vs. United States"]
We'll be right back after this quick break.
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For more, visit Systemofadown.com. All right, first up, let's start with what the right is saying.
The right supports the Tennessee law arguing that states are well within their rights to
put restrictions on gender-affirming care for minors.
Some writers push back on the notion that the law is discriminatory.
Others suggest Justice Kagan is maneuvering to address broader transgender issues.
In USA Today, Ingrid Jocks said the court should uphold the Tennessee law.
While proponents of such medical intervention on youth act like the science is settled and
vital for children's well-being, that's far from the truth.
There's simply not enough long-term data to know whether using puberty blockers, which
stop the natural progression of puberty, and other drugs are safe," Jacques wrote.
Even though some U.S. medical associations still maintain support for gender-affirming
care for minors, others advocate a more cautious approach.
For instance, earlier this year, the president of the American Society of Plastic Surgeons said he won't perform these kinds of surgeries for adolescents because he's
not confident it's the right thing to do. The ACLU will make similar arguments as it
did four years ago when it represented a transgender individual who had been fired from a Michigan
funeral home. The court ruled in favor of transgender rights in that case, which focused
on the law banning workplace discrimination, including on the basis of sex.
Yet, the stakes are different in this challenge, in that it deals with children and unsettled
signs, Dizac said.
States like Tennessee that want guardrails in place for children should be allowed to
have them.
In The Tennessean, Tennessee Attorney General Jonathan Scrametti argued the state's law
is about regulation not discrimination
Puberty blockers hormone treatments and sex reassignment surgeries are off limits to kids in Tennessee
That's the same common-sense approach we take with tattoos alcohol and tobacco purchases and other consequential decisions
Yet now the federal government argues this age-conscious protection amounts to illegal discrimination," Scrometti wrote.
European countries were once enthusiastic
about the use of these interventions
to treat kids with gender dysphoria,
kids who struggled with the conflict
between their sex and their self-perception.
But after careful review of the research,
the medical communities that pioneered gender interventions
for minors have pushed for restrictions
because of new evidence.
The Biden administration's argument would deny Tennessee a state's traditional role
in restricting risky medical procedures.
This represents a fundamental misunderstanding of our constitutional system, where states
serve as laboratories of democracy and have particularly wide discretion to address areas
of medical uncertainties," Kermette said.
If some states want to take a different approach based on their values and interpretation of
the evidence, they're free to do so, but the people of Tennessee, working through Governor
Bill Lee and a bipartisan supermajority of elected representatives, retain the right
to protect kids from procedures deemed harmful by the legislature.
In Reason, Josh Blackmon explored Kagan's play in Scrametti.
Solicitor General Prelogger argued that the Tennessee law imposes a sex-based classification,
but Justice Kagan pushed her former law clerk whether the law imposed a different type of
classification on the status of being transgender, Blackman wrote.
Kagan's play is transparent.
She will vote to uphold the Tennessee law, but say that rather than applying rational
basis scrutiny, the court should recognize transgender people as a quasi-suspect, and
laws discriminating against transgender people are reviewed with rational basis plus bite.
Prior to Obergefell, this was the roadmap for gay and lesbian discrimination.
Kagan will say this Tennessee law survives the differential standard, as would bans on
transgender athletes, but lower federal courts will then have cover
to halt all other laws that would avoid these third rails.
You can see how she would pitch this
to Justices Barrett and Kavanaugh, Blackmon said.
Kagan is trying once again to broker a deal.
Her ideal would be a 4-3-2 split or even a 3-3-3 split.
Tennessee prevails, but no majority opinion
establishes the standard
of review, giving a green light to lower courts to police transgender laws. And liberals
defensively deny cert on all trans cases for the rest of time.
Alright, that is it for what the right is saying, which brings us to what the left is
saying.
The left worries that the court's ruling will have far-reaching consequences beyond
trans health care.
Some say the law unfairly restricts families from making informed medical decisions.
Others say the law should be upheld, pointing to emerging data on the risks of gender-affirming
care for minors.
In Vox, Ian Milheiser wrote about the horrifying implications of the case.
The case asks whether discrimination against transgender people can violate the Constitution,
and it appears most of the justices feel it does not.
The result is that the court will allow states to ban health procedures that enable gender-affirming
care both for minors and potentially adults," Milheiser said.
Many of the justices suggested creating a carve-out for the ordinary constitutional rule restricting sex-based discrimination of all kinds. Chief Justice John Roberts,
for example, suggested giving the government broad authority to engage in such discrimination
in the medical context, a ruling that could also have severe implications for women generally,
including cisgender women.
The biggest question in Scrimetti, in other words, is likely to be how the court finds
a way to uphold Tennessee's law rather than whether the court does so, and it seems fairly
likely that the court's opinion could fundamentally alter the rules governing sex discrimination
by the government, Milheiser wrote.
If the court can create a medical carve-out to the general rule that all sex discrimination is presumptively unconstitutional, what other carve-outs might they create in the future?
For that matter, will the court also create similar carve-outs for other forms of discrimination,
such as race discrimination?
In Newsweek, Meredith McNamara asked, will the Supreme Court put the state ahead of parents'
rights?
Tennessee's law bars parents from making health care decisions for their minor children with
their doctors, but only if those children are transgender.
The stories of two patients of mine make this band's flaws and contradictions clear.
Katherine was an infant who weighed less than two pounds when I cared for her in the neonatal
ICU, and Sarah was 12 years old when her parents sought a referral for hormone therapy, McNamara said.
Both girls received world-class medical care with their parents at the helm, but for very
different reasons.
Katherine was born 12 weeks early, and Sarah is a transgender girl on the cusp of male
puberty.
Both families were charged with necessary time-sensitive medical decisions.
It may be hard to see how Katherine's parents face just as fragile of a role in their daughter's
life as Sarah's, but transgender youth aren't the only political zeitgeist to overlap with
healthcare.
In U.S. v. Skirmetty, Tennessee is asking the Supreme Court to expand the Dobbs v. Jackson
women's healthcare ruling.
This would open the door for political interference in all corners of private life, McNamara wrote.
An avalanche starts small.
I am deeply worried that criminalization
of parental decision-making in gender-affirming care
is the beginning of something ominous
for all my patients and their parents.
In the free press, Jamie Reid said she hopes
the Supreme Court upholds Tennessee's law.
The medical practice of treating children
who are distressed about their gender
started out with good intentions,
but this case at its core represents the profound failures that have occurred in our institutions,
failures that began when activism took over science, failures that can only be corrected
by the courageous and now the courts. It should never have reached this point, Reed Rowe.
I was once on the front lines among the proselytizers. Between 2018 and 2022, as a case manager
at the Washington University Transgender Center
at St. Louis Children's Hospital,
I worked with gender dysphoric youth
and I initially thought we were helping patients.
Yet when I pulled back the curtain,
I was shocked to learn that this science
wasn't worthy of the name.
At our gender clinic, patients often had
glaring comorbidities like depression, anxiety,
ADHD, and, ADHD,
and eating disorders, or were on the autism spectrum.
Many were young people who, if left alone, would most likely grow up to be gay men and
lesbians like myself," Reed said.
That is why I am in favor of legislation that protects vulnerable young people from being
misled by a medical system that has lost its bearings.
I am in favor of protecting children who don't have the capacity to understand the irreversible consequences, including possibly sterility
of these treatments."
All right, let's head over to Isaac for his take.
All right, that is it for it with the left and the right are saying, which brings us to my
take.
So, anytime we write about Supreme Court cases, I try to separate my thoughts into two buckets,
the legal arguments and the practical outcome.
This case obviously involves sensitive hot button issues for a lot of people.
So I want to lean into that framework a bit to navigate it in an even handed way. Let's start here with the legal
arguments. Remember, this is not necessarily about how you feel about trans youth or even
medical treatment for trans youth. This is about the law and about how it should be applied
here. Fundamentally, states passing laws aimed at protecting minors
from perceived risks seems constitutional.
Laws that do so are pretty normal.
You have to be 21 to buy alcohol, 18 to buy tobacco,
and in most states, a certain age to drive
or to purchase a weapon.
Legally and societally, these kinds of restrictions
between what adolescents and adults can do
are common and accepted.
However, Tennessee's law carries an additional
fundamental question of whether it discriminates
based on sex.
This question is tied to a 1996 Supreme Court ruling
that all gender-based classifications are subject
to something called heightened scrutiny,
a legal term that effectively means presuming a law
is unconstitutional and requiring the legislature
that wrote it to prove otherwise. As Ian Milheiser
explained under what the left is saying, new laws can survive heightened scrutiny on sex-based
discrimination if the state defending the law can prove its legislation is grounded in real
differences between the sexes and not just on stereotypes or prejudices about the sexes.
This is why throughout oral arguments, the lawyers representing the trans teens
were trying to make the case that this law amounts
to sex-based discrimination.
They want the Supreme Court to send this case
back to the lower courts with heightened scrutiny applied,
which they think are the conditions
that can strike the law down.
In response, I thought Tennessee
advanced a pretty good argument.
The law bans the use of medical procedures
for health and welfare of minors,
and it does not treat boys and girls differently.
You can't receive hormone therapy,
puberty blockers or surgeries in order to transition
regardless of whether you are a boy or a girl.
The state argued convincingly that the trans teens
and the federal government were trying to create
a quasi-suspect classification
to allow for special protections.
I found this compelling, at least initially. to create a quasi-suspect classification to allow for special protections.
I found this compelling, at least initially.
But when I read the exchanges between the liberal justices
and the Tennessee Solicitor General,
I began to feel a little bit differently.
In particular, Justice Jackson's exchange with Matthew Rice,
the Tennessee Solicitor General,
made it clear that this law invites real questions
about sex-based discrimination.
Jackson posed the hypothetical
of a boy wanting to take testosterone to deepen his voice and enhance his masculinity. Rice
eventually conceded that yes, the law would allow this, and then admitted that a girl
who wanted to take testosterone to deepen her voice would not be allowed to do the same.
Jackson argues that the difference here is the sex of the patient, while Rice argued
that the difference was the purpose of the medication.
But Jackson rightly pointed out that since other statutes limit the use of these drugs
based on purpose, not the law in question, this law's limiting factor seems to only
be sex.
The entire exchange is genuinely worth reading if you get a chance.
It's around page 120 of the transcript of this case, which we'll link to in today's
episode description.
Therefore, given this,
the state has to defend the law under heightened scrutiny.
At least that's the argument that Jackson is making.
And on these points, as I read more,
I became more sympathetic to the legal defense
mounted by the US Solicitor General.
And I started to think the court should do
what she's asking, send the case back down
to a federal appeals court and apply
heightened scrutiny. Remember, the trans teens in the federal government are not arguing for this
law to be struck down before it to be argued under a different standard. This would not assure the
law's demise. In fact, it's possible, if not likely, that Tennessee could still prevail.
But it does seem to me a worthwhile framework to consider the case under. As for the practical
outcome of this law going into effect, I'm more worried about the long-term
implications than I am supportive of limiting how many youth are getting gender-related
treatments.
For starters, I think it's clear that the science on gender care for minors is not settled.
As Ingrid Jacka has put it under what the right is saying, there's simply not enough
long-term data to know whether using puberty blockers,
which stop the natural progression of puberty
and other drugs, are safe,
have other unknown repercussions, or even cause harm.
It isn't hard to find alarming,
albeit anecdotal stories in the US
about medical interventions for trans youth
happening too liberally and with not enough scrutiny.
Furthermore, some experts have begun to raise concerns
about serious adverse effects of certain gender-affirming care.
And whether youth intervention actually
reduces suicide among trans youth
is actually an open question, with the only study directly
assessing this assertion finding that it did not.
Given the way care standards in some European countries
are changing to limit how quickly medical intervention
should be given, I think it's clear the US needsS. needs to similarly re-evaluate the way it's treating trans youth.
But I also find it odd that the conclusion Tennessee lawmakers have drawn from these
treatments are unproven is that we must ban all gender care for minors entirely.
Fundamentally, I struggle to justify a state banning all treatments like this.
On the one hand, we allow all sorts of dangerous drugs to treat medical issues
because we recognize that even medicines like chemotherapy, which can kill a patient,
can be less deadly and provide more upside than just allowing cancer to spread.
On the other hand, in this analogy, the state of Tennessee is actually concerned
that hospitals are treating patients who don't have cancer with chemo,
in which case more regulation would be justified. It's a genuinely challenging question, hence this
case being before the Supreme Court, but it feels to me like an all-out ban would be creating
the opposite problem. It's true that some trans adults regret transitioning or have
serious health issues later in life because of puberty blockers or gender transition surgeries
they received as minors.
But it's also true that some and likely more trans adults
are living happily because they were able
to receive these treatments.
And a law like this would deny them the opportunity
to receive such treatments as minors.
There are even more complicated questions
about whether medical intervention or social transitions
are even the best path forward for people
with gender dysphoria,
but they are less pertinent to the law at hand. Oddly, there is some flip-flopping of ideological
preferences happening here. Many liberals are suddenly making parental rights arguments that
are usually more popular in conservative circles, while many conservatives appear to be abandoning
the kind of limited small government ethos that normally defines their ideologies. I tend toward
the small government maximum freedom approach in principle, and in this case,
allowing doctors and families to come to these decisions themselves strikes me as ideologically
consistent. I both want us to apply much more scrutiny to gender treatments for minors because
I think it's obvious they carry a lot of risk and don't think blanket state-level bans that appear
to violate sex discrimination laws are the
answer. I'm not sure where that middle ground is, but I know that this kind of law doesn't help us
get there. Looking ahead, the biggest question does not appear to be whether the court is going
to uphold the law. I think they will. It's more about how they do it and whether they create
carve-outs for other kinds of discrimination. After all, the same rationale that allows this law to
go into effect for minors could also push
a similar law forward for adults,
which would open all sorts of worrisome questions
about personal liberties related to all kinds
of medical care down the line.
In defending the law,
several of the conservative justices suggested
that judges shouldn't be making these kinds
of complicated medical decisions.
I agree.
Unlike them though, I think we shouldn't leave it to the state legislators
in Tennessee either.
We should leave it to the doctors, medical experts,
and families who are best positioned
to answer these complicated questions
on an individual basis.
All right, that is it for my take today.
We are skipping our listener question today
because my take was pretty lengthy.
So I'm gonna pass it back to John
and we'll be back again tomorrow with our Friday edition pod. We'll see you then. Have
a good one. Peace.
We'll be right back after this quick break.
Timothy Chalamet transforms into the enigmatic Bob Dylan in a complete unknown, a cinematic
captivation that explores the tumultuous life of a musical icon. This mesmerizing film captures
the essence of Dylan's rebellious spirit and his relentless pursuit of artistic innovation.
From the director of acclaimed films Walk the Line and Logan, this extraordinary cinematic
experience is a testament to the power of music and the enduring legacy of a true visionary.
Watch the trailer now and secure your tickets for a truly unforgettable cinematic experience.
A complete unknown. Only in theaters December 25th. In Toronto, Roger Stadium, September 3rd. Hey on the wall, how do you own this startup?
Get tickets this Friday at noon at LiveNation.com.
Somewhere between the sacred silence.
System of a Down and Deftones.
Now watch.
Roger Stadium, September 3rd.
For more, visit SystemOfADown.com. Thanks, Isaac. Here's your under the radar story for today, folks. Women in Afghanistan
training to be midwives and nurses have reportedly been ordered not to return to their classes
by the Taliban, closing off one of the final paths to education for women in the country.
After the Taliban returned to power in 2021, they restricted most secondary and higher education opportunities for teenage girls,
but midwifery and nursing remained accessible.
The new policy will affect an estimated 17,000 women in these training courses
and could exacerbate an existing shortage of midwives in Afghanistan,
which has one of the worst maternal mortality rates in the world. The BBC has this story and there's a link in
today's episode description.
Alright, next up is our numbers section. The estimated percentage of people
identifying as transgender who are between the ages of 13 and 17 is 18%
according to UCLA's Williams Institute.
The estimated number of transgender youth
in the United States is 300,000.
The number of states with laws or policies
limiting access to medical care for transgender minors
is 26, according to the Kaiser Family Foundation.
The number of states facing lawsuits
challenging these laws or policies is 17.
The percentage of US adults who oppose access to puberty-blocking medication for children
between the ages of 10 and 14 is 68 percent, according to a 2022 Washington Post KFF poll.
The percentage of transgender U.S. adults who oppose access to puberty-blocking medication
for children between the ages of 10 and 14 is 31 percent.
The percentage of U.S. adults who oppose access to hormonal treatments for children between the ages of 10 and 14 is 31%.
The percentage of U.S. adults who oppose access to hormonal treatments for children between
the ages of 15 and 17 is 58%.
And the percentage of transgender U.S. adults who oppose access to hormonal treatments for
children between the ages of 15 and 17 is 25%.
Alright, and last but not least, our Have a Nice Day story.
When Angela and Alban Bunting purchased two rundown houses for about £1,250 in 1965,
they knew the property was in need of many repairs, but they also saw great potential.
That potential was realized decades later after the Buntings became grandparents and
transformed the old buildings into cottage playhouses for their grandchildren, creating a gothic style cottage with a spiral staircase
and Elizabethan shed and a Victorian post office. The Times has this story and there's a link in
today's episode description. All right, everybody, that is it for today's episode. As always,
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We should have an interesting Friday piece for you tomorrow and Isaac and Ari will be back with the Sunday podcast
I will return on Monday.
For Isaac and the rest of the crew,
this is John Law signing off.
Have a fantastic weekend, y'all.
Peace.
Our podcast is written by me, Isaac Saul,
and edited and engineered by Dima Thomas.
Our script is edited by Ari Weitzman,
Will K. Back, Hailey Saul, and Sean Brady.
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