The Supreme Court’s decision on Wednesday allowing Tennessee and other states to ban gender-affirming care for minors was a crushing blow for the trans rights movement.
For some trans activists and their allies, the case, known as United States v. Skrmetti, was the culmination of a powerful Trump-era backlash against trans people, artfully stoked by right-wing politicians and abetted by biased media coverage. But some civil rights experts and veterans of the L.G.B.T.Q. movement view the Skrmetti case as a tragic gamble built on flawed politics and uncertain science.
An examination by The New York Times found that over the last decade, the movement was consumed by theories of sex and gender that most voters didn’t grasp or support, radicalizing and calcifying its politics just as the culture wars reignited. The decision by the American Civil Liberties Union and the Biden administration to take Skrmetti to the Supreme Court was “one of the biggest mistakes in the history of trans activism,” said Brianna Wu, a trans woman who serves on the board of Rebellion PAC, a Democratic political-action committee.
Here are six takeaways from the full Magazine article:
Some L.G.B.T.Q. activists and legal experts have long expected a defeat in Skrmetti.
In private meetings of L.G.B.T.Q. legal-advocacy groups, many lawyers expected a loss almost from the moment the Supreme Court agreed to hear the case, according to one person briefed on the conversations. On the outside, many experts considered the case an extraordinary risk. Not only was there little chance that the conservative-dominated court would expand heightened constitutional protections to trans people; a defeat in Skrmetti could open the door to other losses. “If you can’t win a challenge to strike down a gender-affirming-care ban, it’s going to be hard to win other cases around trans rights,” said Michael Ulrich, a professor of health law and human rights at Boston University.
Underlying Skrmetti was a broader cultural battle over how to understand — and describe — human identity.
In recent years, many L.G.B.T.Q. activists came to believe that gender identity should supplant older understandings of physical sex. In this view, all people have the right to determine their own gender, regardless of how they dressed or whether they opted for medical transition. This self-identified gender — not your physical body — should determine what appears on your driver’s license, which bathrooms you could access and what sports teams you could play on. When Joe Biden was elected in 2020, his administration embraced much of that worldview, directing government agencies to interpret old civil rights laws against sex discrimination to include this more novel — and more contested — concept of gender identity.
Skrmetti marked a departure from the L.G.B.T.Q. movement’s winning political playbook.
For years, the movement pursued incremental legal and regulatory wins that, ultimately, sparked deep social change. Beginning in the 2010s, gay people won the right to marry and, along with trans people, serve openly in the military. The movement defeated “bathroom bills” aimed at trans people in states like North Carolina and Texas. Just five years ago, in Bostock v. Clayton County, the Supreme Court ruled that employees could not be fired for being gay or transgender. But with Skrmetti, a case originally filed by a team led by the A.C.L.U., the movement bet its future on a far more fraught question: whether children have a constitutional right to medical treatments that allow them to live and appear as a different sex.
Just as the L.G.B.T.Q. movement dug in on pediatric gender medicine, several European countries began moving away.
As Skrmetti and other lawsuits made their way through federal courts, some of the central medical claims girding the legal case for pediatric gender treatments — that decades of thorough study had found them to be safe and effective — began to unravel amid growing scrutiny by other doctors and experts. Studies known as systematic reviews raised doubt about whether gender-affirming treatments delivered the health benefits to young people that gender clinicians and L.G.B.T.Q. advocates were claiming in court. Finland, Sweden and Britain all restricted minors’ access to puberty blockers and hormones, even as many doctors, guided by the World Professional Association for Transgender Health (WPATH), continued to endorse the treatments.
Dueling cases over pediatric gender care raised questions about medical standards at the heart of the arguments in Skrmetti.
In a separate lawsuit against a similar ban in Alabama, state officials were able to obtain thousands of internal documents showing how WPATH developed its standards for gender medicine. Alabama’s lawyers argued that the documents showed that WPATH had drafted its guidelines in part to aid lawyers and activists working to expand access to transition care — and were aware that the care they were strongly endorsing for adolescents was backed by limited scientific evidence.
Democrats and their L.G.B.T.Q. allies misread the Supreme Court.
In Bostock, the Supreme Court cemented an important civil right for gay and trans people, ruling that a law barring job discrimination on the basis of characteristics like race and sex also protected trans and gay people. But Chase Strangio, who argued Skrmetti for the A.C.L.U., and other left-leaning policy and legal officials in the Biden administration became confident that Bostock could be leveraged into other areas of civil rights law. They hoped to advance a revolution in trans rights that had eluded them in Congress and many state legislatures. The court did not rule directly on whether Bostock could be applied to other statutes or the Constitution — but found that Tennessee’s ban would have survived Bostock’s legal logic.
Nicholas Confessore is New York-based political and investigative reporter for The Times and a staff writer at the Times Magazine, covering power and influence in Washington, tech, media and beyond. He can be reached at [email protected].
The post What to Know About the Transgender Rights Movement’s Supreme Court Gamble appeared first on New York Times.
