The Supreme Court Just Gave Us a Bitter Taste of What’s Coming

Opinion|The Supreme Court Just Gave Us a Bitter Taste of What’s Coming

Shortly before allowing reporters into the main chamber of the Supreme Court for oral arguments in United States v. Skrmetti, a court employee asked us all if we needed to use a bathroom. The men’s room was right next door, the staff member said, and the women’s room down the hall.

“Where should nonbinary people go?” one of the reporters asked.

An uncomfortable back-and-forth followed. The staff person seemed not to understand the question. In the end, there was no answer. It just didn’t seem to compute.

The exchange was more than casually relevant to the case the court heard that day. At issue in United States v. Skrmetti is a Tennessee law that bans treatments such as the use of puberty blockers and hormone therapy for transgender minors. The Biden administration is arguing, among other things, that trans people constitute a “quasi-suspect class” — in layperson’s terms, a group of people who have been subjected to systematic discrimination.

During the hearing, Justice Amy Coney Barrett asked the U.S. solicitor general, Elizabeth Prelogar, who argued the case for the federal government, for examples of laws that have historically discriminated against trans people. Prelogar couldn’t think of any.

Chase Strangio of the American Civil Liberties Union, who addressed the justices after Prelogar, cited two examples: a prohibition on trans people serving in the military and laws (some still on the books) that effectively banned cross-dressing in at least 32 states. Barrett prodded Strangio for more, but he couldn’t think of more examples that target trans people specifically.

Trans and gender-nonconforming people have existed as long as humans have used gender to organize themselves — think Joan of Arc; think Yentl; think many, many real and fictional people in-between — but in Western culture, it’s only in the last half-century that trans people have asserted ourselves as a group. It was only when we became more visible that the onslaught of new discriminatory laws began.