U.S. v. Skrmetti: How the Transgender Rights Movement Bet on the Supreme Court and Lost

Magazine|How the Transgender Rights Movement Bet on the Supreme Court and Lost

One day last December, a clutch of dark-suited lawyers descended the steps of the Supreme Court to a hero’s welcome. The lawyers, from the American Civil Liberties Union, had that morning joined counterparts from the Biden administration in asking the court to block a Tennessee law that bars doctors from providing puberty blockers, cross-sex hormones and surgery to young people who feel that their bodies are the wrong sex. In the plaza outside the court, L.G.B.T.Q. advocacy groups had turned out hundreds of supporters, who hugged, cheered and waved rainbow and pink-and-blue flags. Club music filled the air, clashing against the country songs blasted by a smaller group of counterprotesters. Photographers roamed, capturing images and videos that would later populate the A.C.L.U.’s social media feeds.

Later, in a private briefing for the group’s top donors, an A.C.L.U. official declared victory. “We set out to deliver a clear message to the Supreme Court that law, science and the court of public opinion are absolutely on our side” she said. “And I have to tell you: Boy did we demonstrate that yesterday.” Another A.C.L.U. executive, posting on Instagram, declared that “HISTORY WAS MADE, Y’ALL!!”— referring not to the case, exactly, but to a different milestone: Chase Strangio, an A.C.L.U. lawyer and burgeoning celebrity of the cultural left, had just become the first openly transgender lawyer to argue before the court. When Strangio himself addressed the crowd that day, the particulars of the case, known as United States v. Skrmetti, receded even further. What mattered more, he suggested, was that after generations at the margin of American life, transgender people had forced the court to reckon with their existence. “Regardless of the outcome in June, trans and nonbinary people have always been here,” Strangio said. “We are in it together. Our power only grows.”

Since taking office, he has sought to strip trans people of the right to choose the sex marker on their passports and bar them from the military, arguing that they inherently lack the integrity and moral fitness to serve — that their very identity is a dishonorable lie. He has threatened to withhold federal funding from health care providers that continue to offer blockers, cross-sex hormones or transition surgery to minors. “It is the policy of the United States to recognize two sexes, male and female,” one executive order asserted. “These sexes are not changeable and are grounded in fundamental and incontrovertible reality.”

On Wednesday, the Supreme Court delivered a new, crushing blow, upholding Tennessee’s ban in a 6-to-3 decision. In allowing Tennessee to outlaw blockers and hormones, the court not only shielded similar laws on the books in some two dozen states. It effectively closed the door on extending new constitutional protections to trans people. Some advocates fear that Skrmetti could open the door to banning medical transition for adults and perhaps other health care that some conservatives oppose, like birth control or in vitro fertilization — even vaccines. The fate of a once-obscure medical treatment could have profound consequences for American law.