The Opinions - The Power Struggle Behind Trans Youth Health Care

Episode Date: December 9, 2024

In this episode, the New York Times Opinion columnists Lydia Polgreen and M. Gessen discuss the historic Supreme Court case United States v. Skrmetti, its implications for gender-affirming care for minors in Tennessee, and what it could mean for how the federal government interprets “equal rights” moving forward.Thoughts? Email us at [e-mail]. Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

This is The Opinions, a show that brings you a mix of voices from New York Times opinion. You've heard the news. Here's what to make of it. I'm Lydia Polgreen, an opinion columnist for the New York Times. And I'm Masha Gessen, also an opinion columnist for the New York Times. So Trump and the GOP will have a governing trifecta in the new year. And amid the many policies that I think will hurt many Americans is a shift in the way the government and the courts see equal rights, particularly those for some of the country's smallest and most vulnerable minorities.

Last week, the Supreme Court heard arguments on whether or not Tennessee could ban gender-affirming care for minors. And we won't know for sure until June, but there's already analysis that the court seems to be leaning toward upholding the state's ban. Masha, you were there in the courtroom. I wonder what it was like in the room. I hadn't been to the Supreme Court since 2019. And 2019, I was there for the oral arguments in the Bostock case, which is the last time the court took up the topic of trans rights. And that was the amazing decision that Neil Gorsuch, of all people, wrote, that ruled that trans people are covered by Title VII for the purposes of employment discrimination,

which is the biggest judicial victory that trans people have ever had in this country. And I remember getting an email from the Supreme Court press service before going to the hearing that outlines, the dress code for men and women and thinking, okay, well, what do I do? Do I wear a tie? I don't wear ties. But obviously, I'm not wearing a skirt. Like, what do I do? Right? And I end up going in a suit and an open collar shirt. So this time, the press guidelines did not specify male and female dress codes. They just specified business attire. And I was definitely not the only

trans people in the repress room, which I think I may have been last time. And then there's this, I don't know if you've ever been to the Supreme Court, but as in many of those press situations where you're a group, suddenly you become like toddlers, these cards with your seat number, and you're supposed to line up an order of your seat number, and then you're marched into the room, single file. But first, a staff member got up on a chair and said, does anybody need to go to the bathroom? which, you know, is a loaded question. Because it's hard to go to the bathroom in a federal building.

And then she proceeds to say that the men's room is next door to the press room, and that women's room is down the hall. And if that's not bad enough, another reporter raises her hand and says, where did non-binary people go? And the staff person was like, I swear to God, She'd never heard the word non-binary. Wow. And so, you know, then everybody went to the press room,

and as far as nobody had an accident, but it was a reminder of just how tenuous our presence there is and how recent this visibility is. Like, this particular person, if I understood the dynamics correctly, she won't notice when non-binary people become invisible again, because to her they never became visible. Yeah. For people who haven't been following, can you just briefly summarize what this case is all about and why it matters? So the Tennessee law bans all gender affirming medication for minors.

And three Tennessee adolescents and their families sued the state of Tennessee, and they argued that the law was unconcernation. on two grounds. One is that it violated the Equal Protection Clause by discriminating on the basis of sex or transgender status. And the other is that it violated due process by making decisions that rightfully belong with parents and the family and not with the state. So the Supreme Court agreed to hear the case, but only on equal protection grants. not on due process grant. So what to me is actually the most important part of the case, which is the actual care and who decides on care,

that wasn't part of the case, right? It wasn't part of what we heard in the Supreme Court. There wasn't a single reference in the oral arguments to the actual three families. So they were just there kind of as bystanders in a way of this process that was about something maybe more abstract. than their actual lives. You know, it's weird because usually strategic litigation focuses on the human story,

and it was totally sterilized and dehumanized, with the exception I'd say of one moment when Justice Katania Jackson said that she was reminded of Loving v. Virginia when the state was challenged on equal protection grounds, and the state was arguing that there was no discrimination. but also, as you pointed out, was arguing that the science was on its side. Well, let's come back to that because I think that that really kind of gets into the meat of what I think we should talk about about this argument and this decision. But I first want to just kind of back up a little bit. The lives of transgender people and the affirming care that they seek out, this has become really central to our politics in a variety of ways. And that's interesting and striking because this is actually a pretty small group of people.

but the politics around it seem to have proven in places that you've covered in places that I've covered to be just incredibly potent. So could you talk a little bit about that disjuncture? I mean, it's having this sort of weird clinical discussion about rights while there's been this kind of ferment and stirring up of animus around trans people. Yeah, so, you know, I've been thinking about it in several different ways. One, and it's almost a cliche, but I think it bears repeating that a talk, a talk, article, Budding autocrats, they go after minorities, they go after the most marginalized people, they go after people who are most vulnerable,

but also I think the strategically focus on reversing social change that is most recent, that's easiest to reverse. And of course, you know, in that sense, trans people, LGBT people more generally, but trans people in particular, are the perfect target. You know, there's a real, built-in conflict between autocracy and expertise. And we really saw that conflict play out.

And we've seen it play out in legislators all over the country. And we saw it play out in the Supreme Court. And it's pretty amazing when dozens of professional medical associations file briefs with the court saying, this is the standard of care. And I should say, you know, obviously, as a queer person, actually somebody who's written extensively in my career, about medicine, I don't always think that standards of care are inassailable, but they should not be overruled by legislature or the courts. There are other places to litigate whether standards of care are correct. The media is one of them, but the courts are not. So what's incredible to me is that the justices seem to be unaware of this basic tension, like that they shouldn't be doing this.

They should not be posing questions about medicine. They should not be ruling on questions of medicine. And they kept incredibly returning to questions of medicine, getting completely lost in the weeds because they don't know what they're talking about, which they shouldn't. They have other things to think about that they do understand. And yet they seem to think nothing about the problem of ruling in the space. And that, to me, is a symptom of just how far we're falling. Yeah.

Well, it's interesting. Listening to the argument virtually, I was really struck by how often the justices, particularly on the conservative side, kept returning to this idea of the science being uncertain. There were frequent invocations of some of the changes that have taken place in Europe. I've written about them you have as well that have kind of pulled back, I guess, is one way you could describe it and have thrown questions about. how sure are we that this care is effective, that it's safe, that it's this, that it's that. And there seemed to be, in an uncharacteristic way, a desire to bring in international expertise in a way that's quite unusual for conservative justices in the Supreme Court. But it did seem as though, and there was a particular moment, I think, when Justice Kavanaugh said something like,

well, you know, there's a group of people that you're claiming are harmed, meaning trans children if they don't get this care. but there's also a group of children who would be harmed, you know, children who maybe would regret having received this care, as if they were somehow equivalent groups of people. And there did seem to be this desire to sort of throw up their hands and say, well, well, someone's going to get hurt and we just need to leave it to the legislature to decide which, you know, we're to kind of weigh in on that. Right. And Justice Calvin and I said, you know, there are risks on both sides, which, again, does not seem to me to be a space that the Supreme Court should be venturing. into it. It decided very narrowly on what questions it was going to consider. And yet during the hearing, it kept going well outside of that question of equal protection into questions of science. And you're right, yes, they kept invoking, I think it was particularly Justice Alito, who kept invoking the Swedish and British revised policies on gender affirming care.

As I think you've pointed out, these are national health care systems. And what they're looking at are health care regulators. So what they're actually looking at as precedent is the debate that's happening inside the medical community where it belongs. And so medical authorities are introducing more stringent guidelines for the medical community, which is a world of difference from the legislature introducing guidelines for the medical community. And the fact that our justices don't seem to be able to know the difference is shocking. Well, so let's come back to this question of the two separate arguments that were made and dwell for a moment on the one that the justices decided not to hear, which is the question of kind of who makes the decision. One of the conversations that's been happening around transgender rights, and you recently wrote a column about this, is about this idea, this connection between, you know, kind of bodily autonomy choice, broadly speaking.

I think advocates for abortion have made this, and advocates for trans rights have made this analogy between the need to be able to control your own body and make your own medical decisions and linking trans rights and abortion rights together in that way. And I think you took the argument even a step further. But that argument about kind of who makes the decision and in the context of trans rights, I think a kind of ideal argument was one where it was saying, hey, actually parents should be in the driver's seat along with doctors making this decision. And the court decided not to hear that argument, which was striking to me. I'm listening to the argument. It seemed that they were basically saying, you know, it seems like there's a lot of controversy

here. We judges can't necessarily decide, but the right people to decide are not the medical experts, but the legislature. Exactly. And that they're the ones who could kind of parse through all the evidence and make these decisions. Right. But let's backtrack for a second to the first part of your question, which is about how we even think about trans rights, right? And I think that one way to think about is to think about bodily autonomy but the way that I propose taking further is that I think it's a lot of the fight is actually a pure reproductive rights fight I'm not actually a huge fan of reframing the right to abortion as the right to choose I think that calling things what there is generally useful

and it is particularly useful when we think about the similarities between the right to abortion and the right to trans. It was very clear during the Supreme Court hearing when the Tennessee Solicitor, General was speaking. What's the ultimate harm? The ultimate harm is the loss of fertility. That's what they're really sort of positing as the reason to ban treatment as the thing to avoid. It's not so much about regret.

It's really about young people and their families who should not be allowed to decide whether they reproduce. And that, I think, is a useful frame because then we realize, oh, wait a second, these guys are really trying to decide who gets to reproduce and who should be reproducing all the time. They are both in their legislative efforts regulating reproduction, and then their politics constantly raising reproduction as sort of the ultimate goal or the ultimate space of regulation. Yeah. Well, and so, I mean, it is striking that sort of all of those questions were kind of put to the side of, you know, kind of who decides. And everything was in the argument was invested in this question of equal protection. So let's stick into that a little bit.

You know, one of the most sort of poignant moments for me in the hearing was when Katanji Brown Jackson invoked the Loving case. And, you know, Loving v. Virginia was a case in which the Supreme Court decided that laws against interracial marriage were unconstitutional. And, you know, I think that what she saw coming in the kinds of arguments that were being advanced in favor of this not being sex discrimination, I think she feared were arguments about equal protection that could really eat at the foundations of some of our basic ideas about what equal protection is. And, you know, the interpretation of the 14th Amendment that comes out of, say, something like Brown v. The Board of Education that separate can't really be equal. And so I think I sensed, and I'm,

and be curious how it felt in the room, I sensed a real kind of certainly concern about, you know, kind of where this kind of reasoning leads you, because the government of Virginia tried to argue that there was a scientific basis, right, that racial differences were actually meaningful differences of different types of human beings. You know, I also found that moment it felt profound, and it felt profound because it was a moment of a kind of like what the Supreme Court should be, what the Supreme Court has been an occasion, which is a place of a kind of real moral searching and aspiration. And it really threw into relief what the rest of the hearing felt like.

Yeah, I think that one of the things that feels like it kind of gets lost in all of this is the actual, like what's really at stake here, right? I mean, we're talking about, you know, young people and their access to treatments that will help them feel more at home in their own bodies, make them able to perhaps delay puberty to give them time to think about what they really want for themselves and for their future. But I think there was also a sense,

you know, from the questions that if this law is constitutional, there's not much keeping transition for adults safe. So could you play that out a little bit? Sure. I mean, again, I think that the fact that the court decided to hear this case

communicates that it is okay for a legislative body or any other kind of government authority to make decisions about people's medical treatment. But if we leave it unquestioned that the government can make decisions and can overrule the will of the doctors and the family or the patient, then there's absolutely no reason for state legislators or the federal government not to ban gender reforming treatment altogether.

It's happened elsewhere, it happened in Russia where I'm from. Why wouldn't it happen here? Well, Masha, I really appreciate you taking the time to talk about this, and as always, great to hear your perspectives. It is always good to talk to you, and thank you for guiding this conversation.

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