United States | Trans fix?
Dec 2nd 2024
The following publication appeared in the Economist online on December 2, 2024. The article has been reproduced below fully, with permission.
A case to be heard by the Supreme Court on December 4th is set to reignite debate about one of the election’s most controversial issues: the rights of transgender people, and specifically the medical transitioning of minors. In 2023, Tennessee enacted Senate Bill 1 (SB1), which bans puberty blockers, cross-sex hormones and surgery for minors who identify as trans. It is one of 26 states that have done so. Now, in United States v Skrmetti, the federal government, supported by the American Civil Liberties Union (ACLU), is suing Tennessee on behalf of the parents of three teenagers, claiming the ban violates the equal-protection clause of the constitution’s 14th Amendment.
The question before the Supreme Court is not whether the treatment of minors is effective or experimental, but whether the appeals court that upheld the ban should have set a higher bar, known as “heightened scrutiny”, when assessing if it treats people differently on the basis of protected characteristics, such as race or sex. In short, is this just a medical matter, which states can regulate as they normally do, or does it constitute discrimination against a protected class of people?
Unlike sex, gender identity is not recognised under the constitution as a protected characteristic (known legally as a “suspect classification”) that would trigger heightened scrutiny from judges. So the plaintiffs have chosen to fight the battle primarily on the basis of sex discrimination, saying that children who identify as transgender and want puberty blockers or hormones (the suit does not include surgery) are being discriminated against on the basis of their sex.
The ACLU states that the Tennessee ban means a doctor “could prescribe oestrogen to a cisgender [ie, natal] teenage girl for any clinical diagnosis but could not do the same for a transgender girl [ie, natal boy] diagnosed with gender dysphoria”. Yet at the same time as arguing that a girl and a trans girl are metaphysically the same, the federal government and the aclu are arguing, in order to prove there has been sex-based discrimination, that a girl and a trans girl are, in fact, physically not the same. And that to not give oestrogen to a trans girl constitutes discrimination based on sex.
Opponents dismiss such claims as ridiculous. Saying doctors should give oestrogen to a boy who identifies as a girl is “like saying you should give a boy a hysterectomy”, says Elspeth Cypher, a former justice on the Supreme Judicial Court of Massachusetts. She says this puts it in a similar category to the race-based discrimination that would occur if hormones were refused to a black child.
An array of NGOs back the government’s case, arguing that this is the next step in the civil-rights movement. “Access to scientifically proven medical care is essential for transgender youth to thrive,” says Sasha Buchert of Lambda Legal, a law firm supporting the ACLU. The supporters point to a Supreme Court ruling in 2020, Bostock v Clayton County, in which, in his majority ruling, Justice Neil Gorsuch wrote “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”. Though he wrote that the ruling relates only to employment, some have tried to apply it to other arenas, notably education. Chase Strangio, the ACLU lawyer who will argue before the justices on December 4th (along with the solicitor-general, Elizabeth Prelogar) says that “the well-being of countless transgender youth…rests on the court adhering to the facts, the constitution and its own precedent”.
Opposing this view is a scrappy selection of advocacy groups, including a growing number on the political left, who say the concept of gender identity is nebulous and unfalsifiable and should not ground any legal ruling. They recognise that many teenagers are struggling and say they want them to receive compassion and help. But, says Glenna Goldis, a lawyer who is also a team member of Democrats for an Informed Approach to Gender (DIAG), ”this is a belief system that doctors and lawyers are falsely marketing to Americans as science.” Those pushing adolescent transitioning are “trying to appropriate the protections of sex, while stripping away the meaning of sex, and substituting it with gender identity,” says Zhenya Abbruzzese of the Society for Evidence-Based Gender Medicine.
Polling suggests that public opinion is not simply pro- or anti-trans. A majority of Americans support trans people being protected from discrimination but do not support natal males participating in women’s sports or being housed in women’s prisons, or adolescent transitioning. Many European countries have announced tight restrictions on the treatment of minors, leaving America as an outlier. The new Labour government in Britain has said it will fully implement the Cass Review, a four-year study that shows that the evidence for benefits from adolescent transitioning is “remarkably weak”. Yet medical bodies such as the American Academy of Paediatrics continue to insist it is beneficial.
A ruling is not expected for months. In the meantime a newly inaugurated President Trump may decide to weigh in on the broader issues. But if the Supreme Court rules in favour of Tennessee, the other bans are likely to stand, and the national blue-red division on the issue will continue (as will plenty more litigation).
If it goes against Tennessee, the bans may be sent back to lower state courts to be reconsidered under the “heightened scrutiny” standard. But the much bigger implication, says Ms Cypher, is that, as with the Bostock ruling, even if not stated explicitly, it could cause further movement towards treating gender identity as a protected characteristic. Beyond the possibility of more children being given irreversible treatments which they come to regret, this would have the biggest impact on women’s rights, she says, and lead to yet more legal wrangles. “It would become a tie. My biology trumps your internal feelings, and vice versa, and the courts would have to decide.”