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We have more news below. But first, we discuss the Supreme Court’s ruling on medical treatments for transgender kids.
A losing bet
For years, the L.G.B.T.Q. movement racked up a slate of legal victories around marriage, military service and employment rights. But a political backlash has been brewing, and yesterday brought a profound setback: The Supreme Court ruled that states can bar doctors from providing puberty blockers and cross-sex hormones to minors who identify as transgender. It wasn’t inevitable. The Supreme Court case turned on a particular argument: The plaintiffs, including three young Tennesseeans, said that when the state stopped them from taking these medications, it violated their constitutional rights. But the case was a legal and political gamble. It was rooted in uncertain science and contested ideas about sex and gender that most voters didn’t grasp or support, Nicholas Confessore reports today in The Times Magazine. The Biden administration, the A.C.L.U. and L.G.B.T.Q. groups threw their weight behind the case, United States v. Skrmetti. It was “one of the biggest mistakes in the history of trans activism,” Brianna Wu, a trans woman who serves on the board of Rebellion PAC, a Democratic political-action committee, told Nick. In today’s newsletter, I asked him to explain why. This case is the legal culmination of a larger cultural movement. What is that? Many L.G.B.T.Q. activists believe that gender identity should supplant older understandings of biological sex in the public sphere. In their view, one that emerged in recent decades from academia and left-wing political circles, people have the right to determine their own gender. And that determination should guide what appears on your driver’s license, what bathroom you use, what sports team you join. That goes for children, too. When did that idea take hold? Efforts to implement these concepts as federal policy took shape during the Obama administration. Next, in 2020, the Supreme Court ruled that employees could not be fired for being gay or transgender. Activists believed that gave them a firmer legal basis to seek expanded protections for gender identity. The Biden administration instructed federal agencies to interpret old civil rights laws against sex discrimination to include the newer concept of gender identity. Then came the backlash. I remember an ad in the closing days of the 2024 presidential campaign that said Kamala Harris was “for they/them” and that Donald Trump was “for you.” The ads spoke to a worry among some voters that trans activists were not simply asking for acceptance but demanding that other people reimagine their own identities. Once in office, Trump’s attacks went further: His policies express the view that being trans is a lie. Yet after the election, some polling showed that even most Democrats opposed allowing minors to get puberty blockers and cross-sex hormones. That’s what yesterday’s ruling was about. Right. Americans generally support protecting trans people from discrimination in areas like housing, the workplace and public spaces. But in Skrmetti, the court was asked to consider a more fraught question: Do minors have a constitutional right to treatments that halt and redirect their adolescence? A majority of the Supreme Court justices — six of the nine — said they don’t.
OK, but the justices aren’t supposed to concern themselves with public opinion. Why was this a risky legal argument? The Supreme Court has never ruled that transgender status entitles people to heightened constitutional protection, the way, say, that race or nationality do. To many experts — and even some L.G.B.T.Q. activists — it was unlikely the court would do so in a case involving medical treatments for minors. Why not? A big reason is that the scientific debate behind gender-affirming treatments has become so heated. Relatively few American adolescents identify as transgender; even fewer seek medical care for gender dysphoria, the distress some people feel when their physical bodies do not align with their sense of gender. When judged against the strictest scientific standards, existing studies have not shown that gender-affirming treatments for adolescents reliably deliver the intended benefits, such as improved mental health. That’s why some countries, such as Britain, have restricted access to these treatments. But many doctors still prescribe blockers and hormones. Influential groups like the World Professional Association for Transgender Health, which issues guidelines on pediatric gender medicine, assert that low-certainty studies, combined with “clinical consensus” — the real-world experience of doctors who have seen these treatments work — are a valid basis for prescribing them. Will the Skrmetti case affect other trans rights? Experts tell me it’s likely. If the court doesn’t believe that banning these treatments for minors violates the Constitution, it may hold that banning them for adults doesn’t, either. The court’s 2020 decision protecting trans and gay people from employment discrimination seems safe for now. But Skrmetti probably improves Trump’s chances of banning trans people from the military. Related: Listen to “The Protocol,” a new Times podcast that tracks the development of medical care for transgender teens.
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