On Wednesday, the U.S. Supreme Court heard oral arguments in United States v. Skrmetti, a case about transgender rights that is likely to be the most notable case on the court’s docket this term.
It is one of the first major trans rights cases to land before the Supreme Court since the landmark Bostock v. Clayton County case of 2020, which ruled that discrimination against transgender people in the workplace was an unconstitutional form of sex discrimination. Bostock was a shocking victory for the civil rights of queer people in the United States, all the more so because it was written by, of all people, Neil Gorsuch, not normally counted as one of the court’s progressives.
U.S. Supreme Court [Wikimedia Commons]
But 2020 was a different world. For one thing, back then the Supreme Court’s conservatives still only held a one seat majority, unlike today’s six to three conservative supermajority. The court has grown a lot more brazen in the past few years.
For another, transgender rights have become a much bigger part of the right-wing culture war. Donald Trump just spent $215 million dollars on explicitly anti-transgender ads during his election campaign. Books with transgender characters are disproportionately targeted by groups seeking to have them banned. And 26 states have passed laws against gender-affirming healthcare for transgender youth.
One of those states, Tennessee, was at the center of Wednesday’s court case.
While pro- and anti-trans demonstrators chanted outside the court building, attorneys representing the Biden administration and the American Civil Liberties Union (including Chase Strangio, the first trans lawyer to argue before the court) argued against Tennessee’s law banning certain treatments—most notably puberty blockers—when used to treat gender dysphoria. Under the Tennessee law, a cisgender child who enters puberty early—or “precociously,” as the term of art goes—can receive this healthcare, but a child wishing to delay puberty due to gender dysphoria cannot.
The plaintiffs argue that this constitutes sex discrimination: the sole distinction between whether a child can receive this treatment is their assigned sex at birth. A cisgender boy who wishes to delay puberty is allowed to; a transgender girl, who was assigned male at birth, is not. Sex discrimination has been repeatedly upheld as unconstitutional, with the aforementioned Bostock case as the case that cemented transgender identity as part of sex identity, at least in the workplace.
If the plaintiffs prevail, laws like Tennessee’s—and similar ones in other states—would face higher scrutiny in courts, a level of review they are unlikely to withstand.
However, there is little reason to believe the plaintiffs will prevail—an unfortunate reality, as this legal strategy is supported by the strongest precedent. (The strongest moral argument, that transgender people are a protected class under the 14th Amendment, is unlikely to fare well with the Roberts Court.)
During Wednesday’s arguments, the justices aligned predictably. The three liberal justices demonstrated how, by any reasonable standard, these anti-trans laws constitute sex discrimination. Conversely, far-right justices like Alito and Thomas signaled support for such discrimination, as they did in Bostock four years ago. Meanwhile, the so-called moderate conservatives—Roberts, Kavanaugh, and Barrett—performed their familiar “aw-shucks” routines, using feigned humility to disguise their clear inclination to uphold these discriminatory laws.
“We might think that we can do just as good a job with respect to the evidence here as Tennessee or anybody else,” said Roberts during oral arguments, “but my understanding is that the Constitution leaves that question to the people’s representatives rather than to nine people, none of whom is a doctor.” If only he had maintained that standard of deference to expertise for Loper Bright last year.
Curiously, Gorsuch – author of Bostock, and usually quite chatty during oral arguments – said not a word.
Twin Cities Pride Parade in Downtown Minneapolis, Minnesota, on June 24, 2018.
We won’t know the final scope of the decision for months, but there’s no mystery here—it will likely be another six-to-three split, as we’ve seen so often before. The Supreme Court will once again lend its imprimatur to an attack on American civil liberties. At best, Gorsuch might side with the liberals to preserve some semblance of personal dignity, but that seems unlikely to me.
And to those who are about to argue that this is “only about children”—save it.
Tennessee’s argument already claims they could just as easily choose to discriminate against transgender adults as they currently do against transgender children, and Florida is already doing so. There is no good argument to claim that puberty blockers can be a safe, reasonable treatment for precocious puberty in cisgender children while also being a dangerous, untested experiment for gender dysphoria in transgender children.
This isn’t about safety—it’s a strategic foothold to target transgender people of all ages.
Such is the banality of the Supreme Court’s evil: a long, obsequious ritual designed to make the systematic destruction of countless lives seem like an intellectual exercise. Just as it once legitimized atrocities like slavery, Indigenous genocide, and Japanese internment, the highest court in the land now appears poised to provide rhetorical cover for blatant discrimination against a marginalized minority.
The law is cruel and will soon grow crueler. What is to be done?
Frankly, it’s time for the queer community and its allies—which, by the gods, must include us Pagans, because the modern Pagan movement as we know it would not exist without them—to embrace mutual aid and mutual defense. Thomas and Alito will eventually be replaced by fresh-faced conservatives just as eager to stamp their boots on the faces of the marginalized. The law will not be a refuge for civil rights again in my lifetime—and I am a young man.
The only sensible conclusion is to seek solutions despite these laws. We must build our own communities and our own countercultures capable of resistance.
I have faith in the imaginations of trans people to not only survive but thrive, even under these conditions. But they will need cisgender allies to stand with them, to collaborate and build a better world than the one being constructed by oppressive laws and forces.
How will we help nurture a more loving and just world for our transgender siblings? That, I believe, will be one of the greatest challenges facing the Pagan movement in the years ahead.
The Wild Hunt is not responsible for links to external content.
To join a conversation on this post:
Visit our The Wild Hunt subreddit! Point your favorite browser to https://www.reddit.com/r/The_Wild_Hunt_News/, then click “JOIN”. Make sure to click the bell, too, to be notified of new articles posted to our subreddit.