The Supreme Court Fails to See Transgender Teens

Imagine you are a transgender teenager. Don’t ask me how you know that you are transgender: That question is no more appropriate or relevant than asking people how they know that they are gay or Jewish or Black. Maybe you’ve always known. Maybe a classmate or a stranger said something that alerted you to it. Maybe you know the way teenagers often know things: As the world came into focus, this thing about yourself became clear as could be. In any case, you know.

Like many teenagers, you spend an inordinate amount of time in front of the mirror. You regularly become obsessed with what you perceive as imperfections or, less often, advantages in your appearance. You adopt and abandon hairstyles, items of clothing and affectations. You will shed much of what you are experimenting with now, but some elements will stick. They will form the core of the person you are in the world.

Speaking of the world: Moving through it is awkward, because you are a teenager. Being trans can make it more awkward still. Like when you are in a public place — including your school — and you need to use the bathroom. If you want to consider transitioning medically, you have to discuss the most intimate details of your life with doctors and involve your parents.

I am asking you to imagine what it’s like to be a transgender teenager because that is exactly what the majority of the Supreme Court justices refused to do when they ruled in United States v. Skrmetti on Wednesday, upholding a Tennessee law that bans gender-affirming care for minors. The plaintiffs in the case are three trans teenagers from Tennessee, their parents and a doctor, but there is scarcely a reference to them in the majority or concurring opinions.

It’s often the case that “courts enact discrimination through abstraction,” Chase Strangio, a director of the American Civil Liberties Union’s L.G.B.T.Q. and H.I.V. Rights Project, who argued the case before the Supreme Court, told me. In Plessy v. Ferguson, the 1896 case that upheld the legality of racial segregation; in Korematsu v. United States, which in 1944 affirmed the internment of Japanese Americans; in Bowers v. Hardwick, the 1986 case that upheld Georgia’s sodomy laws; and in Dobbs v. Jackson Women’s Health Organization, which three years ago took away the constitutional guarantee of abortion rights, the Supreme Court seemed blind to the existence of the people who would suffer most from the consequences of its decisions.

In Skrmetti, the plaintiffs and the Biden administration said that the Tennessee law should be held to a higher level of scrutiny because it violated the equal protection clause of the 14th Amendment. If a state law creates conditions for treating people differently on the basis of sex, the state must prove that the law serves an important purpose that justifies such discrimination. If the differential treatment is based on race, the level of scrutiny is even higher.

In the groundbreaking 2020 Supreme Court decision in Bostock v. Clayton County, the court ruled that discrimination against trans or gay workers was illegal. If a male worker was fired for having a male partner, he was treated differently from a female worker in the same relationship would have been; if a transgender woman was fired for failing to adhere to a company’s dress code for male workers, she was punished for not acting in accordance with sex-based expectations, and this was illegal.

The same logic applies to medical treatment, the lawyers argued. If a teenager who was assigned male at birth can be prescribed testosterone to address delayed male puberty — that is, to receive a form of gender-affirming care — then a teenager who was assigned female at birth should have access to the same hormone.

The State of Tennessee, on the other hand, argued in Skrmetti that the difference between these two hypotheticals was not the sex of the patient but the purpose of treatment: to address a medical condition in one case and to aid in gender transition in the other. The court agreed. The majority opinion, written by Chief Justice John Roberts, also made the peculiar argument that while only transgender teenagers are prevented from receiving gender-affirming care under the Tennessee law, both trans and nontrans people can receive hormonal treatment for what the law recognizes as medical conditions and that this meant the law didn’t discriminate against trans people.

This argument struck Strangio as similar to the line once adopted by defenders of anti-miscegenation laws. These defenders argued that the prohibition on interracial marriage affected Black and white people equally. The logic is different — supporters of anti-miscegenation laws were claiming that Black and white people were treated the same, while Roberts is arguing that trans and cis patients aren’t always treated differently — but the sleight of hand is identical. Both arguments hide injustices done to individuals behind the screen of groups. In Loving v. Virginia, the Supreme Court broke through that screen to focus on the individual: It was clear that for any one person, the ability to enter into a marriage was determined by race.

Having rejected the argument for heightened scrutiny in the Tennessee case, the court applied what’s called the rational basis approach, which the court itself has described as “a relatively relaxed standard.” Under this standard, Tennessee didn’t have to prove that its interest in restricting trans care served a purpose that would override concerns about discrimination. The majority chose to take at face value the rationale the Tennessee legislature had used for its law. This rationale consists of more and less widespread cultural myths and a few outright fabrications.

Tennessee, when enacting the law, and the court, when upholding it, recycled familiar stories about the purported tragic regret of detransitioners, the risk of irreversible medical procedures, sterility and negative long-term health consequences of hormonal treatments. Like all myths, these bear a relationship to reality. Some young people regret their decisions to transition, and some choose to permanently reverse their transitions, but most available estimates of such cases are in the single percentage points of young people who transition. (I would also argue that detransition shouldn’t be treated as a failure or a tragedy.) Some medical procedures, such as hysterectomies and oophorectomies, for example, are irreversible, but these are exceedingly rare among minors.

A vast majority of young people, if they obtain medical treatment as part of their gender-affirming care, receive puberty blockers or cross-sex hormones, and these are the treatments to which they have lost access in Tennessee. It’s true that some of these treatments, such as puberty blockers if they are taken for a significant period, may have long-term negative effects on bone health and fertility. There are many other things teenagers do — such as take A.D.H.D. medication, receive hormonal treatment for short stature and participate in competitive sports — that can have similar long-term effects. These are choices that individuals make, usually with their parents and often with their doctors. We all live with the consequences of trade-offs we made as teenagers.

Tennessee is one of 27 states that have restricted gender-affirming care for trans people. At least eight states have tried to restrict care for adults, too. A dozen states have passed laws that require people to use gender-specific bathrooms that correspond to their sex assigned at birth. The Tennessee law and now the Supreme Court decision that upheld it are part of a vast backlash against trans rights, a backlash that includes President Trump’s executive orders purging trans service members, banning “gender ideology” and decreeing the existence of two immutable sexes. This backlash is part of a larger cultural retrenchment that reaches far beyond the conservative Supreme Court or the borders of the MAGA universe. It includes Democrats who rue having gone “too far” (one wonders where, exactly) on trans rights and self-identified good liberal parents who worry about the effects of social contagion on their children.

This retrenchment is fueled by fear: fear of the future, fear of unfamiliar concepts, fear of not knowing one’s child. Whether it’s Trump who says that a child might come home from school one day having had a gender-affirming surgery (not a thing that has happened or can happen) or a thoughtful writer who warns that a child might just wake up thinking they are transgender because they’ve consumed too much social media or just don’t want to be a female in this world, many an anxious American parent wants the option itself to disappear. How convenient it would be if trans people could be executive-ordered and legislated away.

I could say here that you can’t will us out of existence, but this would be bravado. To some extent, these legalistic efforts will succeed and have already succeeded. Families with trans kids have left Tennessee and other states where they cannot get access to care. According to a recent study by the Williams Institute, almost half of trans, nonbinary or gender-diverse people surveyed said they have moved or are considering moving to a friendlier state or city. I know trans people who have left the United States in the wake of Trump’s election.

And yes, making gender-affirming care that much more difficult for young people to obtain will reduce the number of people who can get it and may ultimately reduce the number of people who transition. The social cost of transitioning can grow with age. The effort required for a young person to muscle through a dreaded puberty can become a sunk cost. And the prospect of losing access to gender-affirming care later in life may keep people from transitioning.

The number of young people identifying as trans or nonbinary has grown over the past decade. I see this as a logical consequence of social acceptance and legal gains: The benefits of coming out as trans have come to outweigh the risks for more people. Others see social contagion. Some people, including those self-identified liberals worried about going too far, will see reducing the number of people who choose to transition as a good thing, as proof that only mythical “real” trans people — those who feel that they must transition, no matter how hard it may be — are seeking treatment. But I ask you to imagine that teenager, the one who has to leave Tennessee or this country. The one who has to go through “natal” puberty when everything about it feels wrong. The one who spends those hours in front of the mirror not trying to make their hair look good but trying to hide body parts that make them hate themselves. The one who adjusts, stuffing their desire, their shame and their hope into some dark closet of the mind.

M. Gessen is an Opinion columnist for The Times. They won a George Polk Award for opinion writing in 2024. They are the author of 11 books, including “The Future Is History: How Totalitarianism Reclaimed Russia,” which won the National Book Award in 2017.

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