SCOTUS and the Trans Rights Healthcare Case: Why It Matters

CHRISTIANE AMANPOUR, CHIEF INTERNATIONAL ANCHOR: Now, to the U.S. Supreme Court and a case from Tennessee over medical care for transgender minors. Masha Gessen, opinion columnist for The New York Times, listened to the oral arguments and tells Michel Martin what stood out.

(BEGIN VIDEOTAPE)

MICHEL MARTIN, CONTRIBUTOR: Thanks, Christiane. Masha Gessen, thank you so much for joining us once again.

MASHA GESSEN, OPINION COLUMNIST, THE NEW YORK TIMES: It’s good to be here.

MARTIN: You’ve been writing a lot about this case that has recently had an oral argument before the Supreme Court. The United States versus Skrmetti. Could you just walk us through the facts of the case?

GESSEN: So, Tennessee is one of the states, one of the 26 states, that in the last couple of years have placed restrictions on gender-affirming care. In the case of Tennessee, it’s a blanket ban on any gender-affirming care for minors, right? So, regardless of what their parents want, regardless of what the patients themselves want, regardless of what the doctors recommend, Tennessee bans gender-affirming care for minors.

MARTIN: How did this case come about?

GESSEN: In this case, after the ban was instituted, the ACLU, several other rights groups, sued on behalf of three teenagers and their families, three transgender teenagers, all of whom had been receiving gender-affirming care, and under the ban would have to stop receiving the care. And the case — they sued on two sets of grounds. This is where it gets a little technical, but I think it’s super important. Right. So, they sued on due process grounds, basically that means that they were arguing that it’s the parents and the doctors who should be making the decisions and not the state. And they sued on equal protection grounds, claiming that that the ban constituted sex discrimination, because depending on whether you’re assigned male or female at birth, you have different access to different medications. They won in district court, they — then it was reversed on appeal in the appeals court, they appealed to the Supreme Court, and the Supreme Court agreed to hear the case, but only on equal protection grounds. So, the only thing that was supposed to be argued in the Supreme Court last week was that it constituted sex discrimination. That’s not exactly how it went down.

MARTIN: Well, let me just sort of back a little bit to the origins of the case, because it’s not exactly a secret that sometimes legislators and sometimes, you know, different groups, organize a case for the purpose of bringing it before the Supreme Court. Did you have the sense that Tennessee advanced this law in order to get it before the court, thinking that this would perhaps lead to a nationwide ban? I guess what really what I’m wondering is why was gender-affirming care for minors such an emergency that the state felt it had to act so expeditiously to ban it?

GESSEN: You know, it’s not clear to me that that it was strategic on the part of the State of Tennessee. Separately though, there’s a huge movement and as a coordinated movement to pass to pass legislation restricting or outright banning gender-affirming care for both children and adults all over the country. It’s no accident that more than half the states have passed some sort of legislation in this area just in the last two years. I mean, think about it. It’s like an epidemic of these bills. So, yes, the goal is very much to make it a nationwide sort of ban and whether it takes it ultimately takes the form of a federal ban or just a collection of disparate but similar state bans, we don’t know and I don’t know that necessarily there is an articulated goal, except to make it as difficult as possible for transgender Americans to access care.

MARTIN: I’m really interested in why you think now — I mean, the estimates that we see so far suggest that maybe 1 percent of the population in the United States identifies as transgender, when you talk about youth, maybe 1.4 percent.

GESSEN: So, actually, Michel, it’s an even tinier minority if you think about it, because, yes, barely 1 percent of Americans identifies as trans. If you talk about children, let’s be super generous and call it 1.5 percent. But only a tiny fraction, somewhere around 15 percent of that 1 percent actually seek medical transition, right? So, we’re really talking about an infinitesimally small minority, which makes it a perfect minority to scapegoat.

MARTIN: But why? But what’s the point? What is the point? What is it —

GESSEN: The point, I think — you know, I think the point is there, and we can say sort of on the very surface level that autocrats, aspiring autocrats always target minorities, always designate small minorities as the enemy. But I think there’s more to it than that. They’re really playing into real anxieties, right? There’s like the biggest fear that any parent has is that their child will turn into a stranger. And so, this anxiety that has really permeated the culture in the last few years and, you know, we’ve seen Trump talk about this a lot and to great effect. Your child will go to school, they will perform surgery, they come back without parental consent, they left a girl, they came back a boy, or the other way around, right? I mean, these are completely fantastical scenarios, right? It doesn’t work like that. But it reflects the fear, right? It reflects what every parent’s worst nightmare. And then, of course, the barrage of Trump ads before the election, that Kamala is we’re for you, Kamala is for they, them, that idea that this is the stranger, this is the other, this is the other that’s encroaching on your family, on your community, on your politics. I think this is very effective because there is real fear. There is real anxiety that the way we organize the world, which is by gender, by age, is getting completely upended.

MARTIN: You have some interesting things to say in a number of the columns that you’ve written about how this is also about a kind of loathing or resistance to expertise. Say more about that, why you say that.

GESSEN: I think that’s what we really saw in the Supreme Court hearing, right? It was supposed to be an Equal Protection Clause hearing. So, it was all supposed to be about whether it constitutes sex discrimination. But in fact, the justices kept going back — and this is true for both conservative and liberal justices, they kept going back to the merits of the care itself. And if you think about it, that’s quite extraordinary, because the justices — I mean, they kept — both sides, kept completely getting lost in the weeds. They can’t tell the difference between puberty blockers and hormone treatment, nor should they, they’re justices. They’re not doctors. But, doctors, every single professional medical association, including every single pediatrics association in this country filed an amicus brief with the Supreme Court, arguing that this ban is harmful, that children should – – some children should have access to gender-affirming care, that it is correct, it is needed, it is in some cases lifesaving. And so, the fact that justices on both sides think nothing of sort of — instead of saying, OK, well, the doctors say that this is necessary, what is the state’s compelling interest in going against medical expertise? Instead of posing the question like that, they started debating the merits of the actual care. And, you know, Justice Kavanaugh said, oh, there are harms on both sides. What if people regret it or what if they commit suicide? Both things are dangerous. We have actual experts for that. And I think that this is a real symptom of the times, right? We have RFK. Jr. as our Secretary of Health and Human Services designate. Somebody who not only has wacky opinions, that’s half a problem, but has wacky opinions in contravention of expertise, has utter contempt for expertise, right? And that is a very Trumpian kind of thing. We don’t need experts in government. We know everything that they’re — that we need to know. We can make all the decisions.

MARTIN: OK. Masha, I have to ask though, you’re a parent yourself. In other cases where you have people who come from marginalized backgrounds, like if you’re African American, you have African American kids, you know the ropes. I mean, you know what it’s like to be African American. But not that many, you know, trans kids have trans parents. And so, do you ever have any sympathy for people who are trying to say, well, gosh, there are things that we allow adults to do that we don’t allow kids to do because we just don’t think they’re ready to make those kinds of decisions? And I just wonder if you have any sympathy for people who say, well, you know, when it comes to kids, we need to slow our role.

GESSEN: Well, two things. I do have a lot of sympathy for parents who are dealing with kids who require a lot of sort of new understanding. I think it’s probably a much more common experience for parents than we sometimes let on. My children are not trans or really queer, as far as I can tell. And yet, sometimes they’re total strangers to me. And I think that’s everybody’s experience. But I think the fear that you will not speak the same language as your child, that you will not exist in the same culture as your child, that you will not be able to help your child through the most difficult or challenging moments in life, that fear is real, like that is a universal parental fear, but that’s not what this case is about. This case is about the state deciding and overriding parental decisions. And, you know, I think it’s actually — the tragedy of this particular case is that the Supreme Court refused to hear this part of the argument. So, in effect, the Supreme Court said, we’re not going to allow you to question whether the state has the right to override parental and medical decisions. We’re granting the state that right. We’re just going to ask whether the state is exercising that right in a discriminatory manner. And that tacit sort of granting of that right to the state to override the millennial decisions, I think is absolutely terrifying.

MARTIN: Do you know how the due process question was separated from this case or that the court decided not to take up that question? And the reason that that’s so intriguing is that, you know, parental rights has been a big rallying cry for the conservative movement.

GESSEN: Well, that’s one of the problems with the Supreme Court is that we don’t know. It’s an opaque system. The Supreme Court rarely bothers to tell us why it’s taking up a case or why it’s not taking up a case or why it’s not taking up one argument or the other. So, we’re just left to deal with this fact, the fact that the Supreme Court let stand the appeals court decision that rejects the due process argument. So, the Supreme Court — and you’re absolutely right, parental rights have been the banner under which conservatives have marched in this country. But what is actually happening in the case of Tennessee is that state legislators, most of whom, possibly none of whom, are medical professionals or know anything about trans care, have decided that this particular kind of medical treatment should not be available to people under 18 regardless of what their parents and doctors think. And the Supreme Court already let that stand.

MARTIN: You’ve written about the fact that, you know, for people who might be wondering, well, you know, this doesn’t affect me, this has nothing to do with me. You make the argument that it is. That this has broader resonance than simply about, you know, trans care per se. Can you talk about that?

GESSEN: So, I think two things that we can already take away from this particular case, and there is a lot more in the larger battle against trans rights. But in this particular case, we have the state overriding doctors and parents, and we have justices basically saying that, you know, medical expertise doesn’t matter, right? And these are two things that I think are incredibly dangerous. I’m going to use the word precedent not in the judicial sense, but in the sort of vernacular sense. It sets a horrible precedent for establishing contempt for expertise as our baseline. It doesn’t matter what the doctors say, the justices know better because they have lifetime appointments on the Supreme Court, which does not make them doctors and does not make them understand trans rights. The other argument that I’ve been making about the battle against trans rights in general is that it is largely a question of reproductive rights. Because if you really listen to the arguments that the proponents of these bans on trans care make, one of their strongest arguments — one of their leading arguments, rather, is that children, teenagers assigned female at birth should not be able to make decisions that might later render them infertile. And this is — it probably doesn’t render them infertile, but even if it did, we’re talking — the fact that this is the absolute biggest point that they make should really make all women and all supporters of abortion rights sit up and pay attention. Because this is men who are deciding whether and when people reproduce. And this is part of a much larger sort of framework of thought and framework of law at this point.

MARTIN: What sense did you get when you — as you sat through the argument and how did you feel when you left? It’s not just an intellectual argument for you.

GESSEN: It’s not just an intellectual argument. I’m obviously not a child. In fact, my children are grown, but I am trans. I know that these bans on medical treatment for children will proliferate and will probably turn into bans for adults or at least greater and greater restrictions for adults. So, I’m obviously concerned about being able to access care. And this is — you know, this is care — it’s not for somebody my age, and with my medical history, it’s not just gender-affirming care, it’s actually healthcare that I need to survive. And, intellectually, I felt diminished. There’s something that has happened in the Supreme Court that I don’t think we have really talked about enough, because there’s such a strong tendency to normalize anything that has actually become normal, right? There are three Trump appointees on the Supreme Court. Two of them really much less qualified, much less intellectually rigorous than the standard had been in the Supreme Court, and I think we’re seeing that. I think that’s not the only reason we’re seeing what we’re seeing, but I think that we’re seeing a kind of moral and intellectual diminishment. I think the only moment of real searching that I observed in the court was when Justice Jackson was trying to figure out whether the parallels that she was seeing between this case and Loving Dear Virginia, which is the interracial marriage case, whether those perils helped. And you could see that she was struggling sort of intellectually and morally with the arguments that she was hearing on both sides. You didn’t see that through the rest of the proceedings, right? It’s like, you know, whatever, three hours of arguments and questions. And what’s happening is a kind of narrowing, kind of diminishment that, in this case, is almost certainly going to lead to a loss of rights.

MARTIN: Masha Gessen, M. Gessen, thank you so much for talking with us.

GESSEN: Thank you for having me. It’s always a pleasure.