The Supreme Court heard arguments Wednesday on the pivotal transgender case U.S. v. Skrmetti, and both the lawyers arguing against a Tennessee ban on “gender-affirming care” and three Supreme Court justices made dubious claims and stated outright falsehoods in support of experimental transgender “treatments.”
Tennessee’s SB1 bans medical procedures on minors for the purpose of “enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or “treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”
The American Civil Liberties Union, representing the parents of minors who claim to identify as the opposite sex and claim to have benefited from these procedures, sued to block the law, and the Biden administration joined the lawsuit on the ACLU’s side.
The plaintiffs claim that SB1 violates federal law by discriminating against minors who identify as transgender, denying to them the same treatments that would be allowed for minors who do not so identify.
The U.S. Court of Appeals for the 6th Circuit upheld Tennessee’s law, finding that it doesn’t entail discrimination. The U.S. and the ACLU appealed, and the Supreme Court agreed to hear the case.
U.S. Solicitor General Elizabeth Prelogar and ACLU lawyer Chase Strangio—a male who says he identifies as female—argued the case before the court Wednesday, as did Tennessee Solicitor General Matt Rice.
Prelogar, Strangio, and Associate Justice Ketanji Brown Jackson, an appointee of President Joe Biden, twisted the truth on “gender-affirming care” in at least five ways.
1. ‘Puberty blockers’ are reversible
“Critically, puberty blockers have no effect, in and of themselves, on fertility, so I don’t think that concern can justify the ban on puberty blockers, which is just pressing pause on someone’s endogenous puberty to give them more time to understand their identity,” Prelogar argued.
The Food and Drug Administration has not approved GnRH agonists, which stands for “Gonadatropin-releasing hormone agonists,” for the treatment of gender dysphoria (the painful and persistent identification with the gender opposite one’s biological sex) in children. GnRH agonists prevent the natural release of testosterone and estrogen that initiate puberty.
David Gortler, a pharmacologist and pharmacist who previously was a senior adviser to the FDA commissioner on policy and drug safety, previously told The Daily Signal that physicians developed GnRH agonists to help treat certain cancers that depend on estrogen or testosterone.
Endocrinologists—doctors who specialize in the hormone-regulating endocrine system—have testified to the harms these drugs can cause. Dr. Paul Hruz, an endocrinology researcher and clinician at Washington University School of Medicine, wrote that after “an extended period of pubertal suppression,” patients can’t “turn back the clock” and “reverse changes in the normal coordinated pattern of adolescent psychological development and puberty.”
Dr. Sophie Scott, a neuroscientist from the United Kingdom, explained that the effects of certain chemicals on the human brain aren’t well known, and that current science does not support “puberty blockers” for adolescents.
“As puberty is associated with very marked changes in the structure of the brain … the use of puberty blockers may have serious consequences for the development of the human brain,” Scott warned. Studies in sheep and young girls suggest that these drugs affect the size of the amygdala. Male sheep treated with the drugs showed “more risk-taking behaviors,” while treated female sheep “showed higher levels of anxiety and greater avoidance behavior.” Girls treated with the drug also showed “significant greater emotional reactivity” and “lower heart rates.” They also scored lower on IQ tests after taking the drugs.
2. Suicidality
Strangio, the ACLU lawyer, claimed that it is “clearly established in the science and in the record” that “the medications in question reduce the risk of depression, anxiety, and suicidality, which are all indicators of potential suicide.” (Suicidality refers to the condition of contemplating suicide.) The lawyer admitted that there is no evidence “that this treatment reduces completed suicide” because “completed suicide, thankfully and admittedly, is rare.”
Yet Strangio claimed that “there are multiple studies, long-term longitudinal studies, that do show that there is a reduction in suicidality, which I think is a positive outcome to this treatment.”
The evidence is not as clear-cut as Strangio suggested, however.
In one email on Jan. 25, 2022, Shannon Sullivan, clinical team leader at the FDA’s Division of General Endocrinology, noted that the agency’s Division of Metabolism and Endocrinology Products performed a “safety review of the GnRH agonist class in pediatric patients in 2016/2017.”
Sullivan noted that while the study did not find effects on bone density, “We did find increased risk of depression and suicidality, as well as increased seizure risk, and we issued [safety-related labeling changes].”
In other words, some studies show the exact opposite of Strangio’s claim—that GnRH agonists increase, rather than decrease, thoughts of suicide.
3. Puberty as Harmful
“Gender-affirming care” advocates repeatedly suggested that the natural process of puberty causes harm to people who identify with the gender opposite their biological sex.
“If you’re thinking about this from the standpoint of, ‘There’s no harm in just making them wait until they’re adults,’ I think you have to recognize that the effect of denying this care is to produce irreversible physical effects that are consistent with their birth sex, because they have to go through puberty before they turn 18,” Prelogar argued.
“So, essentially what this law is doing is saying we’re going to make all adolescents in this state develop the physical secondary sex characteristics consistent with their gender or their sex assigned at birth, even though that might significantly worsen gender dysphoria, increase the risk of suicide, and—I think, critically—make it much harder to live and be accepted in their gender identity as a result,” she said.
Prelogar noted that a male who goes through puberty will develop an Adam’s apple, and that may make it harder for that man to “pass” as female, thereby subjecting him to discrimination in the future.
“You have this population of adolescents, and there are documented very essential benefits for a large number of them, and maybe a small number that will regret this care just like with any other medical care,” she added.
Prelogar’s argument flips the natural course of biology on its head. She and others are suggesting that the natural process of puberty is somehow harmful and that it is better for males who say they identify as female to undergo a chemically induced artificial facsimile of the natural process than it is for them to develop naturally.
The evidence for benefits of this artificial process is flimsy, but the associated harms are manifold—and that’s the exact reason why Tennessee’s General Assembly voted to protect minors from it.
4. ‘The Same’ Medical Condition
Justices Sonia Sotomayor and Jackson repeatedly suggested that the Tennessee law bans puberty blockers and cross-sex hormones (estrogen for boys and testosterone for girls, to make them appear like the opposite sex) for males who identify as female and females who identify as male, but not for males who identify as male and females who identify as female.
Sotomayor said that a boy struggling with precocious puberty—the condition of starting puberty too early—would take the same medication as a girl who identifies as male.
“The medical condition is the same, but you’re saying one sex is getting it and the other is not,” she added.
“We do not agree that the medical condition is the same,” Rice, the Tennessee solicitor general, responded. “We do not think that giving puberty blockers to a 6-year-old that has started precocious puberty is the same medical treatment” as giving them “to a minor who wants to transition.”
While the two patients would take the same drug, the intended purpose and practical effect would be different. Sotomayor and Jackson were conflating two very different conditions.
5. ‘Gender Conformity’
Justice Elena Kagan argued that “one of the articulated purposes of this law is to essentially to encourage gender conformity and to discourage anything other than gender conformity.”
She cited the law’s text, which states that Tennessee has “a legitimate, substantial, and compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty” and a similar interest “in protecting the integrity of the medical profession, including by prohibiting medical procedures that are harmful, unethical, immoral, experimental, or unsupported by high-quality or long-term studies, or that might encourage minors to become disdainful of their sex.”
She said that it “sounds to me that ‘we want boys to be boys and we want girls to be girls,’ and that’s an important purpose behind the law.”
Rice, representing Tennessee, noted that Kagan’s quotes come in the context of the state’s legislature attempting to prevent causing harm to minors. He noted studies in which minors’ mental health actually got worse after “gender-affirming care.”
“The legislature specifically noted those studies, so I think that statement was rooted in the notion that actually this is causing affirmative harm to minors that were undergoing the interventions, and that’s why they’re saying we don’t want these interventions that will cause minors to become disdainful of their sex,” he explained.
The law does not aim to set forth standards of masculinity to which boys must adhere, or standards of femininity that girls must follow. On the contrary, the transgender movement encourages boys who may have feminine traits to identify as girls and undergo medical interventions to alter their bodies. If any side is advocating conformity to gender standards, it is the transgender movement.
6. Comparison to Loving
Justice Jackson repeatedly compared SB1 to the Virginia law banning interracial marriage that the Supreme Court struck down in Loving v. Virginia (1967).
Prelogar agreed that both cases involve “overbroad generalizations of how we expect them to live and order their affairs,” such that “these laws disadvantage someone who falls outside the average description.”
“When we look at the structure of that law, it looks—you can’t do something that is inconsistent with your own characteristics—it’s sort of the same thing,” Jackson argued.
“In [Loving v. Virginia], those same kinds of scientific arguments were made,” Jackson claimed again when questioning Strangio.
She repeated the comparison a third time when asking Rice, Tennessee’s solicitor general.
“There, the question of can you marry this other person depended on what your race was. You could marry the other person if it was the same, consistent with your race. You couldn’t if [it wasn’t],” Jackson said. “I take your law to be doing basically the same thing. You can take these blockers if doing so is consistent with your sex, but not if it’s inconsistent.”
“In this case, the only way that they can point to a sex-based line is to equate fundamentally different medical treatments,” Rice responded. “Giving testosterone to a boy with a deficiency is not the same treatment as giving it to a girl who has psychological distress with her body.”
Any argument about discrimination relies on confusion about the basic fact that males going through male puberty is healthy and in accordance with nature, while males going through a false, manufactured facsimile of female puberty is not.
