Trans Kids Shut Out: I Read the SCOTUS Opinion by Justice Roberts

The Supreme Court released its opinion in ‘U.S. v. Skrmetti’ today

Child by Hans Kretzmann from Pixabay

This morning, the U.S. Supreme Court released a 118-page ruling (PDF) in United States v. Skrmetti. It decided 6–3 against trans kids receiving gender-affirming healthcare in Tennessee and (effectively) in any other state that chooses to outlaw that care.

TL;DR — As I see it, although it’s primarily a loss for trans kids today, this opinion will also be cited in efforts to ban trans adults from receiving hormones and surgery, and likely in efforts to allow and promote “conversion therapy” to try to make trans people stop being trans.

Background

Currently, 40 percent of U.S. trans kids live in states that ban medical support for their transitions. (They’re orange in the map.) The states that ban it are Republican-controlled, these laws were passed just over the last two or three years, and this should be read as a political attack, not driven by real medical concern nor informed by facts. These are the kids whom SCOTUS abandoned today.

Bans on best-practice medical care for transgender youth — Movement Advancement Project (data current as of today)

Tennessee is one of the states that outlawed puberty blockers, hormones and surgery when used for gender-affirming purposes for trans kids, and U.S. v. Skrmetti was the Biden administration’s challenge to Tennessee (addressing Jonathan Skrmetti, state attorney general). The case was thus specifically about Tennessee, but the ruling sets a precedent for all other states. The Supreme Court will likely not hear similar cases challenging their laws given that it has already ruled on the issue.

The case was argued before the Supreme Court in December. You may have seen my previous stories anticipating this ruling. They give some context:

• Will SCOTUS Let Parents and Doctors Support Trans Kids? (5-min read, Dec 6)
• Tennessee ‘Isn’t Hiding the Ball Here’ (5-min read, Dec 7)
• The Tennessee Law Tells Us: They Want to Stop People From Being Trans (3-min read, Dec 7)
• New York Times ‘Daily’ Podcast Talks about Gender-Affirming Care Ban (2-min read, Dec 8)

The first five pages of today’s Supreme Court ruling are a summary of what was decided.

Next, pages 6–29 are the court’s opinion written by Roberts — an opinion joined in full by Thomas, Gorsuch, Kavanaugh, and Barrett and in part by Alito).

That’s what I’ve read so far, and that’s what I’ll share here.

I usually prefer to read documents in full before commenting on them, but sometimes people do “live-blog” their reading when a topic is important and urgent enough. Here, I’ve screenshotted and highlighted Roberts’s opinion, and I want to share those highlights with you, so you can use them to spark your own ideas. I’m not a lawyer, but I have some background in reading these arguments, so I hope my interpretation may be helpful.

As soon as possible, I’ll read the other opinions in the rest of the 118-page document, which are:

• A concurring opinion written by Thomas (pp. 30–52)
• A concurring opinion written by Barrett, joined by Thomas (pp. 53–63)
• A concurring opinion written by Alito (pp. 64–85)
• A dissenting opinion written by Sotomayor, joined in full by Jackson and in part by Kagan (pp. 86–116), followed by a short dissenting opinion written by Kagan that’s more like a note of clarification on where she diverges from Sotomayor’s (pp. 117–118)

The five-page summary

The court says that the Equal Protection Clause of the Fourteenth Amendment doesn’t cover trans kids in the matter of their gender-affirming healthcare. If the court had decided there was an issue of sex discrimination, then the Tennessee law would have to have been examined more closely to ensure it was constitutional. But the court decided there is no sex discrimination.

The Tennessee law prohibits minors (until their 18th birthday) from receiving gender-affirming care. Usually that’s puberty blockers or hormones, so that’s what the court discussed. A district court judge had previously decided that these plaintiffs in U.S. v. Skrmetti did not have legal standing to challenge the ban on surgery and thus the Supreme Court did not officially take up that question. Tennessee does also ban gender-affirming surgeries for minors, but these so rarely happen anyway that Roberts did not discuss them in his opinion.

Two classifications are at play, the court decided: “age” and “medical use” (i.e., a certain drug used to address gender dysphoria). Neither depends on a classification of “sex,” which is why the court doesn’t find any sex discrimination.

The court observes that Tennessee forbids gender-affirming care for minors regardless of the minor’s sex (i.e., whether assigned male or female at birth). Trans girls and trans boys alike are shut out of gender-affirming care. Minors may still be prescribed puberty blockers and sex hormones for other reasons; Tennessee law rules out being trans as a legitimate reason.

Plaintiffs (the case was brought by the government during the Biden administration) had argued that Tennessee was trying to force kids to conform to sex stereotypes. The Supreme Court said “nope” to that argument.

The court says Tennessee gave other reasons for banning gender-affirming care, reasons that don’t appear to involve “sex-based stereotyping.”

Nor are the kids being classified as trans, the court ruled, hence there’s no discrimination against them for being trans.

The court is going to talk a lot about another case, Geduldig v. Aiello, in which the Supreme Court allowed a California insurance program not to compensate women for pregnancy-related disabilities. That’s not sex discrimination, the Supreme Court ruled, because not all women are pregnant. Yes, only people with a uterus can become pregnant, but discriminating against a woman for being pregnant is not the same thing as discriminating against her for being a woman, because a pregnancy is not a woman. (This is how SCOTUS thinks.)

Tennessee isn’t discriminating against kids for being trans, the Supreme Court says; rather, it just “removes” being trans “from the range of treatable conditions.”

Would the Supreme Court similarly uphold a state’s right to ban conversion therapy? (That’d be nice.) By “conversion therapy,” I mean efforts to pressure or influence trans kids to say they’re not trans after all. I expect the court would not apply the same logic there, because, as we’ll see later, the court is very credulous about Tennessee’s asserted interest to encourage kids not to be trans.

FYI, where the court uses the phrase “lack of identity,” it isn’t referring to a problem of gender identity. It means that “transgender status” isn’t identical with the medical diagnoses of “gender dysphoria, gender identity disorder, and gender incongruence.” Yes, the court should have written it that way. Forgive the pro-Trump court majority for being obviously so very unaccustomed to writing about trans people while it is nevertheless ruling that we can’t go to the doctor.

Bostock v. Clayton County was a 2020 ruling in favor of gay and trans people in the workplace. Ruth Bader Ginsburg was a court member then; she died three months later. Today’s conservative court majority regrets that the Bostock decision went the way it did, as it’s a strong trans-inclusive precedent they wish they could erase.

They have to wrestle with it here. Bostock isn’t going to change our minds, they say. Bostock was about people who get fired from their jobs just because they’re gay or trans.

The Tennessee law, by contrast — this is the court’s argument — prevents a healthcare provider from prescribing testosterone (for example) when the only motive for the prescription is that the child has gender dysphoria, which the court sees as distinct from being trans. The law allows the child to be prescribed testosterone for “a permissible diagnosis (like a congenital defect),” in which case, the child being male or female, cis or trans, would have nothing to do with the permissibility of the testosterone. That’s why this case isn’t like Bostock, the court ruled. The child isn’t prevented from getting testosterone because of being trans; they’re prevented from getting testosterone because of a conceptual distance the court claims to see between gender dysphoria and transness.

By the way, the court is really unaccustomed to writing about trans people! Where they refer to a hypothetical trans boy, saying “if his biological sex were changed from female to male,” they aren’t having us imagine that the trans boy is getting hormones and surgery; they’re having us swap out our hypothetical example from a trans boy to a cis boy.

The State of Tennessee believes there are “risks” of using puberty blockers and hormones for gender-affirming purposes. Those alleged risks include “irreversible sterility, increased risk of disease and illness, and adverse psychological consequences.”

The issue of “sterility” is not further explored, at least in the opinion that Roberts wrote; it might have been, insofar as reproductive choices may be related to gender identity and expression in complex ways, but we’re not going to hear that (because, IMO, it’s frankly too complex for the court to understand and would require more empathy than they’re willing to give).

Nor is Roberts going to name a “disease,” “illness,” or “psychological” malady that stems from gender-affirming healthcare. He’s just going to take Tennessee’s word for it that if you let kids be trans they will end up very sick.

The court also mentions Tennessee’s claim that “discordance between sex and gender can be resolved through less invasive approaches.” Conversion therapy, there? Or what else could they be suggesting?

The court suggests the Tennessee law is plausibly a good-faith effort toward “protecting minors’ health and welfare.” It doesn’t attempt to address nor even acknowledge how the health and welfare of cis kids and trans kids might differ in this regard.

The Supreme Court generally allows states to legislate however they like “where there is medical and scientific uncertainty,” it writes, citing a 2007 abortion case, Gonzales v. Carhart. It neglects to acknowledge that there is always a measure of uncertainty in all medicine and all science. What makes gender-affirming healthcare unacceptably uncertain? Doesn’t say.

The court won’t pretend “to judge the wisdom, fairness, or logic” of banning trans kids’ healthcare. It’s just saying there’s no sex discrimination here. Who should decide? “The democratic process”: in other words, people should vote for representatives who will then pass laws over whether trans kids can get gender-affirming hormones. Trans kids are a proper topic for election campaigns; that’s the takeaway here.

Roberts’s opinion

Let’s go back to 1979…

…when only adults were explicitly included in Harry Benjamin’s standards of care for trans people.

Trans kids did transition and receive gender-affirming healthcare before then, but Roberts isn’t going to acknowledge early trans history. The trans world he cares about began in 1979. Incidentally, that’s the year of a book that planted a seed of the modern anti-trans movement. I digress.

More and more trans kids want hormones, he complains (I’m pretty sure it’s a complaint), and that means more and more “debates” over how the hormones will affect them.

Whose voices matter in such “debates”? Medical experts? Or “concerned citizens” who have no business chiming in? He doesn’t say. He just thinks the debates should be allowed to happen, which is apparently more important than their nature or quality, and meanwhile, while adults are running their mouths, it’s fine to disallow trans kids from getting hormones.

Five years ago, Finland called trans kids’ healthcare “experimental,” and England said something about “low certainty” (for what outcome? what’s uncertain, now?) and “largely unknown” risks. Roberts accepts this for whatever it might mean.

Tennessee acknowledges that trans kids have feelings by saying that they often feel “discomfort or distress.” However, Tennessee “found” that if a trans kid gets hormones, the kid might become “sterile” (yeah, this can be related to choices about sex and gender, and teenagers actually do have some concept of what this means — exactly what is the issue?), be at risk for an unspecified “disease or illness,” (I thought the risks were unknown? now they are known?) and might die by suicide (because they got the hormones they wanted? I think that’s not the reason for trans people’s suicides). Tennessee warns that kids can’t possibly “understand” these risks, but let’s be fair to kids: I’m 45 and I don’t understand what on earth is being discussed here either.

The Tennessee law forbids a healthcare provider to “enabl[e]” a kid to think or behave in a trans way or to “treat” the trans kid’s “discomfort or distress” if it’s related to being trans. Why? Because Tennessee believes:

• “Discomfort or distress” with one’s own physical sex traits is roughly equivalent to being “disdainful of” one’s sex and is the opposite of “appreciating” one’s sex.
• Children suffer “physical and emotional harm” from their trans feelings.
• Children can be “encourag[ed]” to be cis instead of trans, thereby protecting them from this harm.
• A healthcare provider should not give a child the specific material support they’re asking for, namely, help with changing their physical sex traits.
• The way to address a trans kid’s “discomfort or distress” about their body is to encourage them to just stop feeling the discomfort and distress, i.e., to stop feeling trans.

The court doesn’t make it clear whether it thinks “gender dysphoria, gender identity disorder, [and] gender incongruence” is itself a “defect” or “disease” — other possible options are that it’s a symptom or that it shouldn’t be pathologized at all — but, regardless, the court allows Tennessee to forbid healthcare providers to treat it.

Roberts then gives some background.

The Tennessee law contains three methods of enforcement: finances (the doctor must “disgorge any profits” they made off the medical procedure, pay a $25,000 civil penalty, and promise not to do it again), discipline (the “relevant state regulatory authorities” may have something to say about whether they may continue to practice medicine), and liability (the child or their parents can sue the doctor).

Early in the case, before it reached the Supreme Court, the District Court had ruled that the Tennessee law was discriminating “on the basis of sex and transgender status.”

But then the Sixth Circuit court said there was no sex discrimination and that, further, there can’t even really be any such thing as anti-trans discrimination given that there are no “obvious, immutable, or distinguishing characteristics” of what constitutes a trans person, and that, despite not being a group, trans people aren’t “politically powerless.” It also said the plaintiffs didn’t prove that Tennessee had “animus toward transgender individuals as a class.”

Here I insert my own argument: Denying that trans people are being specifically targeted as a class, and in fact that we can’t be so targeted, assuming that being trans doesn’t really mean anything and that the shared knowledge of the meaning of “trans” somehow vanishes the moment trans people enter a courtroom to advocate for ourselves, is itself a form of anti-trans animus.

Roberts himself wrote a definition in his second footnote:

We use ‘transgender boy’ to refer to an individual whose biological sex is female but who identifies as male, and ‘transgender girl’ to refer to an individual whose biological sex is male but who identifies as female.

Oh! Really! He has a definition but he’s going to agree with the Sixth Circuit that there is no definition. I guess the definition of trans is non-obvious, immutable, and indistinct (riffing off the Sixth Circuit’s statement), but Roberts is allowed to use a definition when he talks about other people because he’s a Supreme Court Justice and controls all the magic. Trans people’s complaint of discrimination (or any other personal experience) sounds incoherent to Roberts because there is no trans, but once Roberts begins writing his opinion about trans people, he suddenly understands perfectly well what a trans person is.

If banning gender-affirming care for minors seems to be a “rational” way for Tennessee to achieve some “legitimate” purpose, the Supreme Court will give Tennessee lots of rein to do what it wants to do. The recourse, as Roberts cites the court’s own 1985 decision, are “the democratic processes,” i.e., voting out all the Republicans and getting the law changed.

But trans people are a tiny fraction of the population and can’t vote out the Republicans, so?

Yes, good point, but trans people aren’t an identifiable group, according to Roberts.

(And we will be even less so, one might think, if we can’t access the hormones and surgeries that often play a major role in many of our personal identities. Yet onward we go.)

So he gently suggests that everyone who cares so much should try very hard to vote out the anti-trans politicians — who to him, of course, aren’t really anti-trans because there is no trans. Roberts doesn’t bother to note that the Tennessee ban on gender-affirming care for minors explicitly affects only those people who aren’t old enough to vote yet.

Nor does he note that which party controls the state legislature has nothing to do with the level of scientific certainty he also suggests is relevant to making informed legislative choices. The “democratic process” should not only vote out politicians who aren’t guided by anti-trans animus but also should vote in politicians equipped to decide which forms of medical care are evidence-based? He doesn’t get that detailed.

Again, he says, this Tennessee law is about the “age” of a person or their “medical use” of a hormone or surgery. It somehow isn’t about their sex, even though Tennessee rather explicitly said it’s important to try to dissuade kids from being trans, and even though Roberts gave a definition of transness that’s about identifying as male or female, which is about sex.

He sticks in a couple sentences from a 1997 court case by which, indirectly and subliminally, he compares gender-affirming healthcare to physician-assisted suicide. I see what he’s doing there. Trans kids are like self-murdery murderers, supportive adults are like regular murdery child murderers, and trans kids don’t have to be listened to because not only are they underage but they are secretly dead. No anti-trans animus to see here, though!

The Tennessee law talks about sex? Yes, he says, but that doesn’t mean it discriminates based on sex.

Plaintiffs (arguing for trans people) said the Tennessee ban establishes that your sex assigned at birth determines what hormones you’re allowed to get — and that looks like sex discrimination.

Roberts sees it differently. After slipping in a free advertisement for some brand name drugs owned by Haleon, McNeil, and Vicks (cool), he says we commonly understand the term “medical treatment” as encompassing “both a given drug and the specific indication for which it is being administered.”

“When properly understood,” he says, “a transgender boy” who takes a drug to address his “gender incongruence” is receiving “a different medical treatment” than a cis boy who takes the very same drug to treat a different medical issue.

What we might call gender-affirming healthcare is thus a distinct treatment from taking the same puberty blockers or hormones for a different reason.

So Roberts is capable of perceiving distinctly trans motivations and behaviors of taking sex hormones, yet somehow is not capable of perceiving trans people, particularly if that person is then going to merit some legal protection as a result of being formally marked as “trans” by a Supreme Court Justice.

What greatly alarms me is that his argument is not really about minors. You can simply delete the reference to minors wherever it appears in this court opinion, and voila, presto chango, instantly this becomes an argument for allowing states to ban gender-affirming care for adults too.

He says this isn’t like an unconstitutional ban on interracial marriage, under which what you’re allowed to do (namely, marry a specified person whose race is known) depends on your own race — and under which, if only your race were different, you could marry that person.

The gender-affirming care ban isn’t like that, he says, because Tennessee allows no child to receive hormones for trans purposes but allows any child to receive hormones if they have some other diagnosis. It’s not about who you are, but about the purpose for which the hormone is being prescribed for you.

He knows what the dissenting justices have written, and he wants to get ahead of them. The dissenting justices think this is like saying: “A Jewish child can visit a synagogue but not a church, while a Christian child can attend church but not the synagogue.” No, it is definitely “not,” says Roberts, not stopping to explain why. I can only assume he secretly knows which obvious, immutable, or distinguishing characteristics demonstrate whether a child is Jewish or Christian.

The plaintiffs flagged Tennessee’s assertion that it wants kids to “appreciate their sex” and not “to become disdainful” of it. Plaintiffs claimed this revealed that Tennessee is trying “to force conformity with sex.”

Well actually, Roberts clears his throat, Tennessee “found” that gender-affirming care for minors is “experimental,” that kids might feel “regret,” and that it carries “harmful — and sometimes irreversible — risks.” These are indeed some vague Roberts words that come out of his keyboard without any obvious, immutable, or distinguishing meaning.

Tennessee simply has “concerns”! He says! Roberts uncritically quotes a legal brief for Tennessee that referred to “the tragic ‘regret’ of detransitioners,” a phrase behind which Roberts surely means for us to see only hard facts and no anti-trans bias whatsoever, apart from the fact that a person’s feelings are inherently tragic when their gender is “detransitioner.” This conclusion is “not improper”! He says!

He adds that, when a trans kid is “encourage[d] to become disdainful of their sex,” they are “at risk for serious psychiatric conditions” — of what? Of gender dysphoria itself? What is that plural -s on “conditions”?

Something else occurs to me now:

1. Previously, he defined “transgender boy” as a “female…who identifies as male,” and vice versa, a “transgender girl” as a “male…who identifies as female.” OK. Fine. I’m not mad.
2. He also previously claimed that people “who might seek puberty blockers or hormones” specifically to treat “gender dysphoria, gender identity disorder, and gender incongruence” constitute a “group [that] includes only transgender individuals” [emphasis mine].
3. Yet he goes on to accept Tennessee’s claim that actually receiving those puberty blockers or hormones “encourages” those kids to “become” trans. As in, they weren’t trans to begin with?

The conundrum: By Roberts’s own definition, if the kids weren’t trans to begin with, they wouldn’t have sought the puberty blockers or hormones; there is no non-trans kid seeking this stuff who is thereby being encouraged to be trans.

Can he find a way out? Well, maybe, if another definition could be found for “become disdainful of their sex” so that it meant something other than become trans. Perhaps, for example, Tennessee intended us to place the emphasis on “encourage them” because it wants to regulate how adults treat children (e.g., affirming or denying their genders) and to place less emphasis on who the kids actually are (because it does not care). Unfortunately, since Tennessee does not care and Roberts does not care, neither do I care to help them pretend to care.

Anyway, this court case is incidentally about “minors (a classification based on age),” but also sort of not. It’s really more about “a classification based on medical use,” which, as we’ve said, is being trans and using hormones in a trans way. That makes this a Supreme Court precedent that will be used to take away trans adults’ access to hormones and surgery too.

Again, Roberts says, being a woman isn’t the same as being pregnant. Some women are, in fact, not pregnant. Therefore, “not every legislative classification concerning pregnancy is a sex-based classification.”

I don’t believe he has feminist support on this matter, not necessarily in a purely conceptual sense (that’ll be complicated and subject to a billion feminists with ten billion interpretations) but more in the material sense that pregnant people do in fact want health insurance companies to give them money and do not appreciate the Supreme Court’s convoluted reasoning for why their pregnancy-related disability doesn’t count. (Or go and find me a disabled pregnant person who’s delighted that their California insurance company was given permission not to cough up cash, I’ll wait.)

Anyway if you’d like to paraphrase Roberts out of context and make a reply-bot that says “Pregnancy isn’t a sex-based classification — SCOTUS” just to confuse and distract anti-trans people on social media, be my guest. That’s the real gift on offer here.

Regarding pregnancy: Lawmakers are “free,” as the court wrote in Geduldig, to “include or exclude” it!

(Pregnant people may feel less free under the laws the lawmakers come up with, but that’s another matter.)

Tennessee is doing the same thing, Roberts says, when it “removes” trans-related diagnoses “from the range of treatable conditions.”

Please note that this argument will apply to trans people of any age. I’m telling you that’s how this Supreme Court decision will be used.

Only trans people want this! So it only affects trans people! But it’s not discriminating against trans people, because we don’t know what a trans person is!

Heads up on the dissent, Roberts says in a footnote. He knows that the dissenting justices have given a counterexample: that characterizing people by their past, present, or possible future capacity to menstruate is not “sex neutral.” Roberts is here to mansplain: menstruation is a “characteristic,” not a “class of treatments” (as with gender-affirming healthcare) nor a class of “conditions” (as with pregnancy-related disabilities).

I do wonder how he’d retrofit that into Bostock (PDF), where he joined the majority opinion (written by Gorsuch) in saying people can’t be fired for being gay or trans. When a person is fired from their job because they take cross-sex hormones, does Roberts believe they’ve been fired for a “characteristic” (being trans) or for a medical “treatment” of a “condition” (gender dysphoria)?

He won’t try to apply Bostock’s reasoning “beyond the Title VII context,” that is, beyond the question of employment discrimination.

“If you change his biological sex from female to male,” he begins — again, this means he wants you to imagine a hypothetical trans boy, then imagine a hypothetical cis boy in the same situation. (He doesn’t want you to change any real child’s sex, to be quite clear.) Your hypothetical “transgender boy” — who is now, indeed, a hypothetical cisgender boy, hope that helps — can get testosterone if he has a “qualifying diagnosis.”

Roberts has screwed up this example quite badly, at least in how he expresses it. By his own definition of transgender boy (“an individual whose biological sex is female but who identifies as male”), if you start by imagining a kid assigned female at birth and then you imagine that “his biological sex” is not female after all but instead male, what you are doing is imagining him not transgender but instead cisgender. Of course the trans kid “could obtain” a hormone “regardless of…sex or transgender status” if the doctor had an as-yet-unnamed reason to prescribe it, but we are very deep into a badly written and incomplete hypothetical here.

Roberts doesn’t tell us which diagnoses would qualify a trans boy to receive testosterone. I’m pretty sure he believes there are none. So this is a nonsense and unhelpful example.

He tries to get a bit more specific (yes, slightly more helpful).

Suppose a girl is upset about unwanted facial hair. What’s the difference if she’s a girl who was assigned female at birth (a cis girl) or a girl who was assigned male at birth (a trans girl)?

Again, he wants you to do the cis/trans character swap in your imagination (“her sex is changed from female to male”). He’s saying that not only do you have to swap out the sex assigned at birth, you also have to swap out the diagnosis from hirsutism (hairiness in females) to gender dysphoria. And since there’s an extra step of not only swapping out sex but also swapping out the diagnosis, this can’t be an example of sex discrimination, he says. Her experience would be sex discrimination if her sex were the only thing you’d have to swap out to get a different outcome for her.

I disagree with him that “there is no reason why” (in his hypothetical example) a girl’s “diagnosis of hirsutism automatically changes to gender dysphoria” if you imagine she’s a trans girl and not a cis girl.

There is a reason.

In his first line, he describes the hypothetical girl as having “unwanted facial hair inconsistent with her sex.” He proposes that she was assigned male at birth yet perceives her beard as “inconsistent with her sex.” This implies (to me, anyway, lemme know if I’m wrong here!) that she “identifies as female” and is thus a “transgender girl” by his own definition of what it means to be a trans girl.

Second, he proposes that she perceives the beard not merely as “inconsistent” with being female but furthermore as “unwanted.” This implies (to me!) that she has gender dysphoria regarding her beard. So she is a trans girl asking a doctor to give her puberty blockers or hormones to stop her beard growth.

That is literally the “reason why” the diagnosis “automatically changes” from “hirsutism” (in a cis girl) to “gender dysphoria” (in a trans girl) when we imagine this character had a different sex assigned at birth. When a cis girl doesn’t want her beard, it’s politely called hirsutism. When a trans girl doesn’t want her beard, it’s politely called gender dysphoria. Those are gendered terms for a similar phenomenon.

Plaintiffs argued that Tennessee didn’t explain why it doesn’t want “a transgender minor to ‘identify’ or ‘live’ in a way ‘inconsistent’ with their ‘sex’” — i.e., why it’s bad to be a trans kid.

Roberts says, actually, Tennessee did. Tennessee observes “an ongoing debate among medical experts regarding the risks and benefits” of giving puberty blockers and hormones to trans kids for trans reasons, and so they banned these treatments, “respond[ing] directly to that uncertainty.”

This is not obviously stated in good faith given that all medicine is always uncertain and medical experts are always debating everything because that’s how science works.

Why, again, was this law enacted specifically against trans kids?

“We also decline,” he says, to “second-guess the lines” drawn by the Tennessee law. I thought he was second-guessing lines when he agreed with the Sixth Circuit that trans has no definition. Trans is a proposed class of person, and he disagrees with the lines drawn around it. Also, Your Honor, it is literally your job to second-guess what people say.

He acknowledges that the plaintiffs might be correct that the medical risk of a puberty blocker or hormone is the same regardless of why a person is using it. However, he says, Tennessee thinks it’s riskier when it’s trans, and the Supreme Court chooses to “afford States ‘wide discretion’” to make stuff up by claiming “medical and scientific uncertainty” and then “passing legislation” about it. That’s my loose translation of that sentence I did not bother to fully screenshot. Truly, wide discretion to make up stuff about trans people is what it means.

Then he mentions that England’s National Health Service commissioned the Cass Review, which was published last year. Some things could be said about the bias and misinformation behind that effort and how it’s affecting trans adults.

Then he describes what the NHS did “in response to the report” when it came out a year ago — “in response” to it, as if the NHS had not commissioned the report (even though he acknowledged this earlier in the same paragraph) and neglecting to mention that the NHS went beyond the report’s recommendations when it came up with its “response.”

This UK report questioning trans people’s identities and healthcare — commissioned in a profoundly anti-trans political climate and then used as a pretext to crack down on trans people’s healthcare harder than the report itself even suggested — does not in fact “demonstrate” that there are “open questions regarding basic factual issues.”

Anyone can ask any question about any fact. That’s a condition of being human.

The UK’s Cass Review, in how it poses such “questions” about trans people, is not an example of unbiased inquiry.

(How about I go think up some questions about the Supreme Court now. How’s he gonna like them apples.)

He won’t be judging “wisdom, fairness, or logic” of Tennessee’s law. He’s just here to say that trans people’s access to gender-affirming healthcare, i.e., our right to do what we like with our bodies, ought to be left to “[other] people, their elected representatives, and the democratic process.”

So…let’s go vote on trans kids?! ❌🇺🇸🙃 It is so ordered.