The ACLU’s Chase Strangio (New York Times, 12/3/24) notes that Tennessee’s case suggests that “somehow medical regulations are sort of exempt from heightened scrutiny when it comes to sex.”
After Republicans turned transgender people into a central target in the 2024 election, trans issues returned to the spotlight less than a month later, when the Supreme Court heard a challenge to Tennessee’s ban on gender-affirming medical care for youth.
In what is widely considered one of the most consequential cases of the current court term, trans youth in Tennessee (joined by the Biden government) challenged their state’s law prohibiting puberty blockers, hormone treatments and surgery as a violation of the Equal Protection Clause. Many rights advocates fear that a decision upholding Tennessee’s ban—which seems likely—will quickly erode trans rights across the board, and more broadly undermine equal protection rights.
But voices in the corporate media’s opinion pages were quick to downplay the dangers of the case, leaning on false and misleading anti-trans narratives that have become all too common in U.S. media.
‘Bedrock equal protection’
In US v. Skrmetti, the plaintiffs argue that Tennessee’s ban on gender-affirming care for trans youth must be subject to heightened scrutiny under the Equal Protection Clause of the 14th Amendment. If a state is accused of treating people differently under a law, but it can offer a rational justification for that differential treatment, the courts generally let the law stand. But if a law discriminates based on certain classifications, including sex, gender, race and religion, the state has to prove it’s not based on prejudice—a much higher bar to clear. The Skrmetti case asks the justices to decide whether the Tennessee law discriminates based on sex and should therefore be subject to that higher bar (specifically, that the law serves an “important state interest”), which it would be unlikely to meet.
Though Tennessee’s argument rests largely on the idea that its law discriminates based on “age” and “purpose,” Tennessee solicitor general, Matthew Rice, admitted under questioning that the law does classify based on sex. As trans ACLU lawyer Chase Strangio (New York Times, 12/3/24) explained it:
If a 14-year-old goes to the doctor’s office and says, “I want to have a puberty consistent with my male friends,” the doctor can say yes to the person assigned male who’s just developing later than his peers, but not to the person assigned female who’s transgender.
The Wall Street Journal (12/3/24) affects incredulity—”believe it or not”—at the argument that it’s sex discrimination to restrict particular forms of healthcare based on the patient’s sex.
So it would seem to be a fairly clear-cut decision in favor of the plaintiffs. And yet the conservative justices’ line of questioning suggested they are looking for a way to rule in favor of Tennessee—most likely by justifying an exception to heightened scrutiny, based on the fact that the case involves “medical judgments.”
Justice Ketanji Brown Jackson (Newsweek, 12/4/24) expressed serious concern over this line of thinking, arguing that creating any kind of exceptions to heightened scrutiny “undermin[es] the foundations of some of our bedrock equal protection cases.” Observers pointed out that doing so could open the door to other medical carveouts for sex discrimination (such as abortion or birth control), as well as exceptions for other forms of discrimination (such as racial discrimination) (e.g., Vox, 12/4/24).
Denialist game plan
But many media pontificators obscured the important legal questions and implications, repeating spurious narratives about transition and its alleged risks in order to justify a rights-restricting ruling.
The Wall Street Journal editorial board (12/3/24) jumped out of the gates to defend the ban before oral arguments even began, arguing that the ban “is focused on diagnoses” and therefore isn’t sex discrimination. The Journal editors have returned to the issue twice since then, once (12/13/24) to hold up a lawsuit by a detransitioner as providing “context” for the case, and again (12/15/24) to incorrectly announce that Britain had “permanently banned” puberty blockers for youth, and to argue that “lawmakers in Tennessee are within their rights to insist their state’s children get the same quality of care that’s becoming standard in Britain.”
Citing healthcare, or lack thereof, across the Atlantic is (somewhat ironically) a favorite argument of trans rights opponents, who regularly point to the British Cass Review, a report conducted by people with no expertise in pediatric transgender care in the midst of a rising anti-trans panic in the UK (FAIR.org, 7/19/24). In response to the Cass Review, the British health system has not “permanently banned” puberty blockers; rather, they have made new prescriptions for puberty blockers unavailable for trans patients not already taking them, for an indefinite period of time while they conduct further studies, but to be reviewed again in 2027.
The Washington Post (12/15/24) demands “new research of maximum possible rigor” for gender-affirming care, “overseen by scientists who are not gender medicine practitioners”—which is just like demanding research of cancer treatment conducted by doctors who aren’t cancer specialists.
These arguments don’t like to admit that the European restrictions that they cite are far from the blanket bans that Tennessee and other U.S. states have (FAIR.org, 6/22/23). And they are political decisions that do not represent expert medical consensus. All the relevant medical associations in the US; those in a variety of other countries, including Canada, New Zealand and France; the World Professional Association for Transgender Health and other prominent groups of medical experts on trans healthcare have rejected the Cass Review’s methods and conclusions, and support gender-affirming care for youth.
Moreover, while cases of detransition are likewise a centerpiece of arguments for banning trans healthcare, those arguments virtually never—the Journal being no exception here—acknowledge that rates of regret after such care are astonishingly low (PRS Global Open, 3/19/21). Even the Cass Review, for instance, was unable to dig up even 10 cases of detransition out of 3,306 patient records, which would translate to a rate of less than one-third of 1%.
As Joanna Wuest (The Nation, 12/4/24) pointed out, those driving the narrative of trans medical care being “risky” or “uncertain” are following the same game plan as fossil fuel, tobacco and Covid science denialists, exploiting real but marginal scientific uncertainties or outliers to promote public misunderstandings of the scientific consensus and advance their own political agenda.
The other major Murdoch paper in the U.S., the New York Post (12/5/24), also predictably came out swinging for Tennessee, calling youth transition “insane,” and centrally citing detransitioners and European restrictions.
‘Evidence too thin’
It’s no surprise that Murdoch’s mouthpieces would parrot the right-wing line against transgender rights. But the more centrist Washington Post took a line nearly as strident and misinformed. More than a week after the oral arguments, the paper published an editorial (12/15/24) taking Tennessee’s side.
The Post editors claimed the “crux of the debate” is:
whether, as the plaintiffs argued, the treatments can be lifesaving or, as some global health authorities have determined, the evidence is too thin to conclude that they are beneficial and the risks are not well-understood.
From the start, then, the Post framed it in a wildly misleading way as a scientific debate between, on the one side, the Biden administration and a handful of trans youth and, on the other side, global health experts. It’s obvious who readers are meant to believe has the weight of authority here.
The Post continued:
This unresolved dispute is why Tennessee has a colorable claim before the court; it would be ludicrous to suggest that patients have a civil right to be harmed by ineffective medical interventions—and, likewise, unconscionable for Tennessee to deny a treatment that improves patient lives, even if the state did so with majestic impartiality.
The Post‘s argument illustrates why many are so concerned about the broader repercussions of the Skrmetti case. Anti-abortion and religious activists already argue that birth control is harmful, and failure rates of oral contraceptives are much higher than rates of dissatisfaction with gender-affirming care (which is presumably what the Post means by “ineffective,” since the treatments are not ineffective in their impact on a person’s sex characteristics). So if the Post wants to make the argument that medical arguments ought to trump arguments of sex discrimination, it ought to at least clue readers into the implications of that argument.
Just as importantly, while both gender-affirming care and birth control carry some side effects and risks, there’s not a legitimate medical debate about either being, on balance, “ineffective” or “harmful.” And there is plenty of evidence that they both improve patient lives.
However, the Post editorial’s readers couldn’t possibly imagine that, because the Post only presented evidence that supported their claim. In case anyone was unsure at this point about their stance, the editors’ conclusion clarified which side the Post wants you believe has greater scientific legitimacy:
The failure to adequately assess these treatments gives Tennessee reason to worry about them—and legal room to restrict them.
Casey Parks (Washington Post, 12/5/24) reported a rare news story about trans youth that is actually from the perspective of trans youth.
The Post also ran a piece by columnist Megan McArdle (12/6/24) that essentially adopted the medical carveout position, writing that a civil rights framework is trumped by “biology.” Similar arguments could be found on op-ed pages across corporate media, from the New York Times (12/8/24) to USA Today (12/4/24) to the Hill (12/4/24).
‘Ripple effects’
Such voices did not entirely monopolize the op-ed pages, and some strong trans advocates were published as well. The New York Times, whose publisher has vehemently defended the paper’s influential role in spreading misleading anti-trans narratives (FAIR.org, 5/19/23), published trans ACLU lawyer Chase Strangio (12/3/24) arguing from both a legal and personal perspective for the right to gender-affirming care. Trans nonbinary Times columnist M. Gessen, who joined the paper in May, also published a column (12/6/24) and was interviewed by fellow Times columnist Lydia Polgreen for the Times‘ Opinions podcast (12/9/24).
At the Boston Globe, columnist Kimberly Atkins Stohr (12/4/24) drew comparisons to the Dobbs ruling and its own “ripple effects,” and called on states to enact shield laws to protect “the ability of doctors, their patients, and patients’ families to act according to their needs, wishes and the proper standard of medical care.” And the Los Angeles Times published a piece by ACLU head Anthony D. Romero (12/3/24) that also linked the Skrmetti case to the Dobbs case, and criticized “the recent retrenchment on the political left and center [that] may set back the cause of trans equality–and equal protection more broadly.”
The Post news section, meanwhile, produced some careful and sensitive reporting its editorial board ought to read, such as an FAQ (12/3/24) on the basics of gender affirming care for minors, “including what puberty blockers are and whether cross-sex hormones impact fertility.” Reporter Casey Parks relied on actual medical experts to answer the questions, rather than allowing it to be framed as a “culture war” or relaying “both sides,” as media reports too often do (FAIR.org, 11/23/22).
Pamela Paul (New York Times, 11/14/24) says Democrats should embrace a “common sense” approach to trans issues—which appears to mean believing that “gender is based on sex at birth.”
Parks also wrote an account (12/5/24) of the Supreme Court oral arguments through the eyes of one of the young trans plaintiffs, who ingenuously wanted to talk to the Tennessee governor and the anti-trans protesters because she believed they were “unaware of the consequences” of their actions, and she wanted to tell them how her life was “immeasurably better than it had been before she started blockers and hormones.”
Scapegoats for Democratic losses
In the 2024 election, Republicans spent more on anti-trans advertising than any other issue (Truthout, 11/5/24; Erin in the Morning, 11/13/24). Rather than fiercely defend trans people from the vicious attacks, several “liberal” pundits accused the Democratic party of going too far on trans rights, scapegoating trans people and their defenders for the party’s losses. That included the New York Times‘ Pamela Paul(11/14/24) and Maureen Dowd (11/9/24), and the Atlantic‘s Helen Lewis (11/10/24), all of whom approvingly quoted Massachusetts Rep. Seth Moulton, who said,
I have two little girls; I don’t want them getting run over on a playing field by a male or formerly male athlete, but as a Democrat I’m supposed to be afraid to say that.
Moulton later walked back his comments, saying his point was that Democrats should be leading the conversation on trans rights rather than running away from it, and that he promised “unwavering” commitment to LGBTQ rights—something the aforementioned pundits expressed little interest in.
There’s no reason to doubt the incoming Republican government will continue its attacks on trans people and their rights, only now with much more power at its disposal. We need news media now more than ever to hold those in power accountable for their attacks on minority groups, but the coverage of the Skrmetti case suggests that many in the press corps will instead happily join in on the attacks.