Tennessee ‘Isn’t Hiding the Ball Here’

Chase Strangio talks with Imara Jones about the Supreme Court case ‘U.S. v. Skrmetti’

Tucker Lieberman
5 min read4 days ago
engraving, with a little color, of a crowd at the Supreme Court
Supreme Court, C.S. Reinhart, public domain, via Wikimedia Commons

Imara Jones, host of the TransLash podcast, talked to ACLU attorney Chase Strangio a few days before the election. The conversation was released as a TransLash podcast episode on November 14.

I really encourage you to listen to the podcast episode. It gets into the ACLU’s legal reasoning, which is learnable and so important to understand. On December 4, Strangio became the first trans person to argue a case before the U.S. Supreme Court, and we should all know what he went there to argue, as well as hear him explain it in his voice.

If you’d like to read up before you go into the 40-minute podcast episode, here’s my unpaywalled 5-minute summary of it.

“The core question before the court,” Strangio says, “is: Does it violate the Equal Protection Clause of the 14th Amendment for a state to categorically ban medical care for trans adolescents because that care is inconsistent with their sex?”

The 14th Amendment, as one of the Reconstruction Amendments passed just after the Civil War, has a clause saying everyone should be treated equally.

Strangio explains that this was “first and foremost geared towards responding to anti-Black racism and the legacy of chattel slavery.” Later, “through the work of people like Pauli Murray and Ruth Bader Ginsburg,” it was applied to sex discrimination, i.e., prohibiting discrimination on the basis of “expectations about how men and women are or should be.”

Do these protections “extend to trans people when the government is discriminating against us because of our sex?” Strangio asks rhetorically. That’s his central argument: “When Tennessee and 23 other states say you can’t get medical care because ‘it is not consistent with how we understand your sex,’” you’re experiencing “sex discrimination.” This has been the ACLU’s argument “since 2021 when Arkansas became the first state to ban medical care for for trans adolescents.”

The courts are supposed to “protect minorities from majoritarian rule.” In practice, this means that, “when the government discriminates,” the courts “look very closely at what the government is doing and say: Are you really doing something legitimate, or are you doing something for an improper purpose?” Race-based discrimination is subject to “strict scrutiny.” Since the 1970s, sex-based discrimination is subject to a lower level called “heightened scrutiny, or intermediate scrutiny.”

Strangio asks: Will the court say “We want to allow for more sex-based stereotypes in the law?” Or will it say “This [gender-affirming care ban] is just the straightforward continuation of everything we have always been suspect of, which is that governments should not be telling people what kind of man and what kind of woman they can and cannot be?”

The Supreme Court may accept the lower appellate courts’ decisions that “this isn’t about sex at all.” It could take “a hands off approach” and accept any explanation from a state that seems “remotely rational” as probably “a legitimate reason” to ban healthcare. It could choose to describe the ban as “just the regulation of medicine” and “just about a medical procedure that happens to be limited to a group of people” — restricting that group’s healthcare while somehow not discriminating against them.

Strangio acknowledges that “the Christian Nationalist Movement has done a really good job of disguising these questions as being about medicine” but we know “they’re doing it because it is about trans people.”

A blanket ban in a state legislature is “not the way medicine is regulated.” He gives the example of gastric bypass surgery, where, to help people accurate information, authorities “imposed informed consent requirements on the doctors who are performing them.” By contrast, a state legislature’s ban on gender-affirming care “is so anomalous in terms of a medical regulation…it’s not consistent with any other context.”

Besides, “these are template laws that were shipped across the country that were part of larger packages of other types of laws targeting trans people that had nothing to do with medicine.”

(The ACLU has more info about those “larger packages” of anti-LGBTQ laws — 574 bills introduced this year alone.)

ACLU’s map of US with caption: 574 anti-LGBTQ bills introduced in 2024
ACLU, viewed December 7, 2024

Jones asks how the SCOTUS Justices might bypass the Equal Protection Clause without “wreck[ing] the medical decision-making process for everyone and giv[ing] state governments the arbitrary power to decide who gets medical care (and who doesn’t) depending on who they are?”

Strangio speculates: “They’ll contort the language in order to say it doesn’t really deal with sex, even though the whole point of the statute is to limit what you can do based on your sex.”

More broadly, he warns: “Whatever they say is the limiting principle, it will not, in fact, be the limiting principle.”

After all, the SCOTUS Justices who voted in Dobbs to overturn Roe v. Wade “swore up and down that Dobbs was limited to the context of abortion,” yet “within a week of Dobbs, you had every single state government defending bans on medical care for trans adolescents and adults of various sorts, saying: Under Dobbs, we have a right to do this.”

And will SCOTUS embrace the Dobbs-based reasoning of those states?

“We should be very concerned about that, because the limiting principles that the court announces in one context are only are only true up until the next context in which they they blow past them, and the court can and will, as we’ve seen, do what it wants. … What is the next thing they’re going to take away from us?”

Jones predicts that “a ruling against gender-affirming care for young people” would lead to “similar types of restrictions for all trans people,” regardless of age.

Strangio agrees.

“The other side is saying, ‘Look, this is just about young people not having the ability to make these decisions.’ (Put aside the fact that it’s their parents who are making them.)…Nothing about their [Tennessee’s] reasoning and their rationale is limited to restrictions on care for minors.”

Look at it this way: If a ban on gender-affirming care isn’t considered impermissibly sexist and instead is seen as an appropriate regulation of what it means to be male or female, then what’s to stop the ban from being applied to adults?

Indeed that’s why the ACLU took the case to SCOTUS: “The lower court opinions were already being used to legitimize expanded attacks on care for adults.”

Tennessee’s ban isn’t about “protecting children,” Strangio says.

“At the end of the day, this is about enforcing norms of gender, full stop. They say it on the face of the statute. They say: Tennessee has a compelling interest in encouraging minors to appreciate their sex and prohibiting treatments that could cause them to be disdainful of their sex. They are not hiding the ball here.”

TransLash Podcast with Imara Jones. Illustration: A Black person wearing headphones. Their eyes are stars, and pink and blue (trans-colored) rays of light stream from their eyes.
Here’s the episode link again.

--

--

Tucker Lieberman
Tucker Lieberman

Written by Tucker Lieberman

Cult classic. Author of the novel "Most Famous Short Film of All Time." Editor for Prism & Pen and Identity Current. tuckerlieberman.com

No responses yet