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- [00:01]
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- [00:59]
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- [02:10]
Isaac Saul
Good morning, good afternoon and good evening and welcome to the Tangle Podcast, a place we get views from across the political spectrum, some independent thinking, and a little bit of my take. I'm your host Isaac Sahl, and on today's episode we're going to be talking about a Supreme Court case around healthcare for trans minors. This is, as you can expect, a pretty controversial but also very interesting Supreme Court case. We're going to talk about exactly what's happening, what the arguments are, and I've got my take, which is, I would say, a little not convoluted, but it's complicated. It's a really, really hard one and it was interesting to kind of dig in on the details here. Before we jump in though, a quick heads up to keep an eye out for tomorrow's Friday edition of the podcast. A quick reminder for those of you who are not yet subscribers that we publish Friday and Sunday editions of the podcast. For our Tangle members who are podcast members, you can become one by going to tanglemedia.supercast.com that gets you ad free podcasts in your feed as well as those Friday and Sunday editions. With that, I'm going to send it over to John for today's main story and I'll be back for my take.
- [03:29]
John Law
Thanks Isaac and welcome everybody. Here are your quick hits for today. First up, United Healthcare CEO Brian Thompson was shot and killed outside a hotel in Manhattan. The suspect is still at large and law enforcement have not ascribed a motive to the shooting. Number two the French national assembly passed a vote of no confidence against Prime Minister Michel Barnier's coalition government, prompting his resignation after three months in the role. French President Emmanuel Macron is expected to name a new prime minister in the coming days. Number three Syrian rebels Surprise offensive against President Bashar al Assad has expanded to Hama, a major city in western Syria. The rebels now control all of Idlib province and most of Aleppo province. Number four President Elect Donald Trump nominated former securities and Exchange Commissioner Paul Atkins to serve as the agency's next chair. Separately, Trump nominated tech entrepreneur Jared Isaacman for NASA administrator. Finally, Trump announced that trade advisor Pete Navarro will serve as senior counselor for trade and manufacturing. Navarro served a four month sentence for contempt of Congress after refusing to cooperate with the House select committee investigating the January 6th Capitol riot. And number five two children are in critical condition after a shooting at a school in California. Authorities believe the shooter may have targeted the school because of its affiliation with the Seventh Day Adventist Church.
- [05:00]
Isaac Saul
CBS News 247 also watching closely, something happening at the U.S. supreme Court as we speak. Justices in session hearing arguments in a Tennessee case that bans gender affirming care for minors. Now that law prohibits puberty blockers and hormone treatments in an effort to regulate the lives of transgender people, especially young people.
- [05:19]
John Law
On Wednesday, a majority of Supreme Court justices signaled that they were willing to allow states to pass laws limiting access to treatments prescribed for transgender teens. During over two hours of oral arguments in United States vs. Scumetti, a case challenging a Tennessee law banning gender transition surgeries and the use of puberty blockers and hormone therapy for transgender minors, five justices in the court's conservative majority indicated they were likely to uphold the state's law. The decision in Skirmiti would likely set a precedent that could affect other challenges to laws regarding transgender sports participation, bathroom use and access to transgender care for adults. In 2023, the Tennessee legislature passed SB1, a law abandoning surgical procedures and the administration of puberty blockers or hormones for the purposes of enabling a minor to identify with or live as a purported identity inconsistent with the minor sex. SB1 allows for these treatments in cases of congenital defects not consistent with normal physical development, but not to treat gender dysphoria, gender identity disorder, gender incongruency or any mental condition, disorder, disability or abnormality. Three transgender teens challenged the ban, arguing that the law violated the Constitution's equal protection clause. A federal judge agreed, saying that the treatments were not speculative or dangerous and issuing a preliminary injunction preventing the law from going into effect. The state then appealed to the 6th Circuit Court, which stayed the lower court's decision and reinstated the ban. The plaintiffs petitioned the Biden administration to appeal the case to the Supreme Court, which it did in November of 2023. The court agreed to hear the case in June, with the US Solicitor General Elizabeth Prelogger representing the plaintiffs and Tennessee Attorney General Jonathan Scarmetti arguing for the state. The court is determining whether SB1 unconstitutionally makes sex based distinctions. The Biden administration and the families argue that since the law allows everyone except for transgender minors access to puberty blockers and hormones, the law therefore discriminates on the basis of sex and should be subjected to heightened scrutiny. The challengers also grounded their argument in The Supreme Court's 2020 decision in Bostock vs Clayton county, where the court found that sex based federal employment laws also protect transgender employees. Tennessee has countered that the law is simply banning certain usages of medical procedures to protect the health and welfare of minors. The law is not sex based discrimination, the state says, as it treats boys and girls the same, adding that being transgender is not a quasi suspect classification that would allow for special protections. During oral arguments, the court's three liberal justices, Justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor seemed receptive to the challenger's argument. The evidence is very clear that there are some children who actually need this treatment, sotomayor said. Conversely, five of the court's conservative justices, Justices Samuel Alito, Amy Coney Barrett, Brett Kavanaugh, Clarence Thomas and Chief Justice John Roberts all signaled skepticism with the challenge. Roberts and Kavanaugh focused on not wanting the courts to settle medical issues, while Alito added that he was concerned that siding with the plaintiffs would invite endless litigation. Justice Neil Gorsuch, who wrote the majority opinion in Bostock, was silent. Through oral arguments today we'll get into what the right and the left are saying about the oral arguments in Scurmeti versus United States and then Isaac's take.
- [08:54]
Isaac Saul
We'll be right back after this quick break.
- [09:03]
John Law
What a difference a day makes.
- [09:07]
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- [09:29]
John Law
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- [09:54]
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- [10:07]
John Law
All right, first up, let's start with what the right is saying. The right supports the Tennessee law, arguing that states are well within their rights to put restrictions on gender affirming care for minors. Some writers push back on the notion that the law is discriminatory. Others suggest Justice Kagan is maneuvering to address broader transgender issues. In USA Today, Ingrid Jacques said the courts should uphold the Tennessee law. While proponents of such medical intervention on youth act like the science is settled and vital for children's well being, that's far from the truth. There's simply not enough long term data to know whether using puberty blockers, which stop the natural progression of puberty and other drugs, are safe, jacques wrote. Even though some US Medical associations still maintain support for gender affirming care for minors, others advocate a more cautious approach. For instance, earlier this year, the president of the American Society of Plastic Surgeons said he won't perform these kinds of surgeries for adolescents because he's not confident it's the right thing to do. The ACLU will make similar arguments, as it did four years ago when it represented a transgender individual who had been fired from a Michigan funeral home. The court ruled in favor of transgender rights in that case, which focused on the law banning workplace discrimination, including on the basis of sex. Yet the stakes are different in this challenge in that it deals with children and unsettled signs. Jacques said states like Tennessee that want guardrails in place for children should be allowed to have them. In the Tennessean, Tennessee Attorney General Jonathan Scurmetti argued the state's law is about regulation, not discrimination. Puberty blockers, hormone treatments and sex reassignment surgeries are off limits to kids in Tennessee. That's the same common sense approach we take with tattoos, alcohol and tobacco purchases and other consequential decisions. Yet now the federal government argues this age conscious protection amounts to illegal discrimination, scumetti wrote. European countries were once enthusiastic about the use of these interventions to treat kids with gender dysphoria, kids who struggled with the conflict between their sex and their self perception. But after careful review of the research, the medical communities that pioneered gender interventions for minors have pushed for restrictions because of new evidence. The Biden administration's argument would deny Tennessee a state's traditional role in restricting risky medical procedures. This represents a fundamental misunderstanding of our constitutional system where states serve as laboratories of democracy and have particularly wide discretion to address areas of medical uncertainty, scormetti said. If some states want to take a different approach based on their values and interpretation of the evidence, they're free to do so. But the people of Tennessee, working through governor Bill Lee and a bipartisan supermajority of elected representatives, retained the right to protect kids from procedures deemed harmful by the legislature. In Reason, Josh Blackmun explored Kagan's play in Skremetti. Solicitor General Prelogger argued that the Tennessee law imposes a sex based classification, but Justice Kagan pushed her former law clerk whether the law imposed a different type of classification justification on the status of being transgender, Blackmun wrote. Kagan's play is transparent. She will vote to uphold the Tennessee law, but say that rather than applying rational basis scrutiny, the court should recognize transgender people as a quasi suspect and laws discriminating against transgender people are reviewed with rational basis plus bite. Prior to Obergefell, this was the roadmap for gay and lesbian discrimination, kagan will say. This Tennessee law survives the differential standard, as would bans on transgender athletes. But lower federal courts will then have cover to halt all other laws that would avoid these third rails. You can see how she would pitch this to Justices Barrett and Kavanaugh. Blackmun said Kagan is trying once again to broker a deal. Her ideal would be a 432 split or even a 333 split. Tennessee prevails, but no majority opinion establishes the standard of review, giving a green light to lower courts to police transgender laws and liberals defensively deny cert on all trans cases for the rest of time. All right, that is it for what the right is saying. Which brings us to what the left is saying. The left worries that the court's ruling will have far reaching consequences beyond trans healthcare. Some say the law unfairly restricts families from making informed medical decisions. Others say the law should be upheld, pointing to emerging data on the risks of gender affirming care for minors in Vox, Ian Millhiser wrote about the horrifying implications of the case. The case asks whether discrimination against transgender people can violate the Constitution, and it appears most of the justices feel it does not. The result is that the Court will allow states to ban health procedures that enable gender affirming care both for minors and potentially adults, millhiser said. Many of the justices suggested creating a carve out for the ordinary constitutional rule restricting sex based discrimination of all kinds. Chief Justice John Roberts, for example, suggested giving the government broad authority to engage in such discrimination in the medical context, a ruling that could also have severe implications for women generally, including cisgender women. The biggest question in Skirmetti, in other words, is likely to be how the Court finds a way to uphold Tennessee's law rather than whether the Court does so. And it seems fairly likely that the Court's opinion could fundamentally alter the rules governing sex discrimination by the government, milheiser wrote. If the Court can create a medical carve out to the general rule that all sex discrimination is presumptively unconstitutional, what other carve outs might they create in the future? For that matter, will the Court also create similar carve outs for other forms of discrimination, such as race discrimination? In Newsweek, Meredith McNamara asked, Will the Supreme Court put the state ahead of parents rights? Tennessee's law bars parents from making health care decisions for their minor children with their doctors, but only if those children are transgender. The stories of two patients of mine make this ban's flaws and contradictions clear. Catherine was an infant who weighed less than two pounds when I cared for her in the neonatal ICU. And Sarah was 12 years old when her parents sought a referral for hormone therapy. McNamara said. Both girls received world class medical care with their parents at the helm, but for very different reasons. Catherine was born 12 weeks early and Sarah is a transgender girl on the cusp of male puberty. Both families were charged with necessary time sensitive medical decisions. It may be hard to see how Catherine's parents face just as fragile of a role in their daughter's life as Sarah's. But transgender youth aren't the only political zeitgeist to overlap with healthcare. In US vs Scarmetti, Tennessee is asking the Supreme Court to expand the Dobbs vs Jackson women's healthcare ruling. This would open the door for political interference in all corners of private life, McNamara wrote. An avalanche starts small I am deeply worried that criminalization of parental decision making in gender affirming care is the beginning of something ominous for all my patients and their parents. In the Free Press, Jamie Reed said she hopes the Supreme Court upholds Tennessee's law. The medical practice of treating children who are distressed about their gender started out with good intentions, but this case at its core represents the profound failures that have occurred in our institutions. Failures that began when activism took over science, failures that can only be corrected by the courageous and now the courts. It should never have reached this point, Reid RIB I was once on the front lines among the proselytizers between 2018 and 2022, as a case manager at the Washington University transgender center at St. Louis Children's Hospital. I worked with gender dysphoric youth and I initially thought we were helping patients. Yet when I pulled back the curtain, I was shocked to learn that this science wasn't worthy of the name. At our gender clinic, patients often had glaring comorbidities like depression, anxiety, ADHD and eating disorders or were on the autism spectrum. Many were young people who, if left alone, would most likely grow up to be gay men and lesbians like myself, reid said. That is why I'm in favor of legislation that protects vulnerable young people from being misled by a medical system that has lost its bearing. I am in favor of protecting children who don't have the capacity to understand the irreversible consequences, including possibly sterility, of these treatments. All right, let's head over to Isaac for his take.
- [18:38]
Isaac Saul
All right, that is it for what the left and the right are saying. Which brings us to my take. So anytime we write about Supreme Court cases, I try to separate my thoughts into two buckets, the legal arguments and the practical outcome. This case obviously involves sensitive hot button issues for a lot of people, so I want to lean into that framework a bit to navigate it in an even handed way. Let's start here with the legal arguments. Remember, this is not necessarily about how you feel about trans youth or even medical treatment for trans youth. This is about the law and about how it should be applied here. Fundamentally, states passing laws aimed at protecting minors from perceived risks seems constitutional. Laws that do so are pretty normal. You have to be 21 to buy alcohol, 18 to buy tobacco, and in most states, a certain age to drive or to purchase a weapon. Legally and societally, these kinds of restrictions between what adolescents and adults can do are common and accepted. However, Tennessee's law carries an additional fundamental question of whether it discriminates based on sex. This question is tied to a 1996 Supreme Court ruling that all gender based classifications are subject to something called heightened scrutiny, a legal term that effectively means presuming a law is unconstitutional and requiring the legislature that wrote it to prove otherwise. As Ian Millhiser explained under what the Left Is saying, new laws can survive heightened scrutiny on sex based discrimination if the state defending the law can prove its legislation is grounded in real differences between the sexes and not just on stereotypes or prejudices about the sexes. This is why throughout oral arguments, the lawyers representing the trans teens were trying to make the case that this law amounts to sex based discrimination. They want the Supreme Court to send this case back to the lower courts with heightened scrutiny applied, which they think are the conditions that can strike the law down. In response, I thought Tennessee advanced a pretty good argument. The law bans the use of medical procedures for health and welfare of minors and it does not treat boys and girls differently. You can't receive hormone therapy, puberty blockers or surgeries in order to transition, regardless of whether you are a boy or a girl. The state argued convincingly that the trans teens and the federal government were trying to create a quasi suspect classification to allow for special protections. I found this compelling, at least initially, but when I read the exchanges between the liberal justices and the Tennessee Solicitor General, I began to feel a little bit differently. In particular, Justice Jackson's exchange with Matthew Rice, the Tennessee Solicitor General, made it clear that this law invites real questions about sex based discrimination. Jackson posed the hypothetical of a boy wanting to take testosterone to deepen his voice and enhance his masculinity. Rice eventually conceded that yes, the law would allow this, and then admitted that a girl who wanted to take testosterone to deepen her voice would not be allowed to do the same. Jackson argues that the difference here is the sex of the patient, while Rice argued that the difference was the purpose of the medication. But Jackson rightly pointed out that since other statutes limit the use of these drugs based on purpose, not the law in question, this law's limiting factor seems to only be sexual. The entire exchange is genuinely worth reading if you get a chance. It's around page 120 of the transcript of this case, which we'll link to in today's episode description. Therefore, given this, the state has to defend the law under heightened scrutiny. At least that's the argument that Jackson is making. And on these points, as I read more, I became more sympathetic to the legal defense mounted by the US Solicitor General and I started to think the court should do what she's asking, send the case back down to a federal appeals court and apply heightened scrutiny. Remember, the trans teens in the federal government are not arguing for this law to be struck down before it to be argued under a different standard. This would not assure the law's demise. In fact, it's possible, if not likely, that Tennessee could still prevail. But it does seem to me a worthwhile framework to consider the case under. As for the practical outcome of this law going into effect, I'm more worried about the long term implications than I am supportive of limiting how many youth are getting gender related treatments for starters, I think it's clear that the science on gender care for minors is not settled. As Ingrid Jacka has put it under what the Right Is saying, there's simply not enough long term data to know whether using puberty blockers, which stop the natural progression of puberty and other drugs are safe, have other unknown repercussions, or even cause harm. It isn't hard to find alarming, albeit anecdotal, stories in the US about medical interventions for trans youth happening too liberally and with not enough scrutiny. Furthermore, some experts have begun to raise concerns about serious adverse effects of certain gender affirming care. And whether youth intervention actually reduces suicide among trans youth is actually an open question, with the only study directly assessing this assertion finding that it did not. Given the way care standards in some European countries are changing to limit how quickly medical interventions should be given, I think it's clear the US needs to similarly reevaluate the way it's treating trans youth. But I also find it odd that the conclusion Tennessee lawmakers have drawn from these treatments are unproven is that we must ban all gender care for minors entirely. Fundamentally, I struggle to justify a state banning all treatments like this. On the one hand, we allow all sorts of dangerous drugs to treat medical issues because we recognize that even medicines like chemotherapy which can kill a patient, can be less deadly and provide more upside than just allowing cancer to spread. On the other hand, in this analogy, the state of Tennessee is actually concerned that hospitals are treating patients who don't have cancer with chemo, in which case more regulation would be justified. It's a genuinely challenging question, hence this case being before the Supreme Court. But it feels to me like an all out ban would be creating the opposite problem. It's true that some trans adults regret transitioning or have serious health issues later in life because of puberty blockers or gender transition surgeries they received as minors. But it's also true that some, and likely more trans adults are living happily because they were able to receive these treatments, and a law like this would deny them the opportunity to receive such treatments as minors. There are even more complicated questions about whether medical intervention or social transitions are even the best path forward for people with gender dysphoria, but they are less pertinent to the law at hand. Oddly, there is some flip flopping of ideological preferences happening here. Many liberals are suddenly making parental rights arguments that are usually more popular in conservative circles, while many conservatives appear to be abandoning the kind of limited small government ethos that normally defines their ideologies. I tend toward the small government maximum freedom approach in principle, and in this case, allowing doctors and families to come to these decisions themselves strikes me as ideologically consistent. I both want us to apply much more scrutiny to gender treatments for minors because I think it's obvious they carry a lot of risk and don't think blanket state level bans that appear to violate sex discrimination laws are the answer. I'm not sure where that middle ground is, but I know that this kind of law doesn't help us get there. Looking ahead, the biggest question does not appear to be whether the Court is going to uphold the law. I think they will. It's more about how they do it and whether they create carve outs for other kinds of discrimination. After all, the same rationale that allows this law to go into effect for minors could also push a similar law forward for adults, which would open all sorts of worrisome questions about personal liberties related to all kinds of medical care down the line. In defending the law, several of the conservative justices suggested that judges shouldn't be making these kinds of complicated medical decisions. I agree. Unlike them though, I think we shouldn't leave it to the state legislatures in Tennessee either. We should leave it to the doctors, medical experts and families who are best positioned to answer these complicated questions on an individual basis. All right, that is it for my take today. We are skipping our listener question today because my take was pretty lengthy. So I'm going to pass it back to John and we'll be back again tomorrow with our Friday edition pod. We'll see you then. Have a good one. Peace. We'll be right back after this quick break.
- [26:53]
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- [27:38]
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- [28:44]
John Law
Thanks, Isaac here's your under the radar story for today, folks. Women in Afghanistan training to be midwives and nurses have reportedly been ordered not to return to their classes by the Taliban, closing off one of the final paths to education for women in the country. After the Taliban returned to power in 2021, they restricted most secondary and higher education opportunities for teenage girls, but midwifery and nursing remained accessible. The new policy will affect an estimated 17,000 women in these training courses and could exacerbate an existing shortage of midwives in Afghanistan, which has one of the worst maternal mortality rates in the world. The BBC has this story, and there's a link in today's episode Description all right, next up is our numbers section. The estimated percentage of people identifying as transgender who are between the ages of 13 and 17 is 18%, according to UCLA's Williams Institute. The estimated number of transgender youth in the United States is 300,000. The number of states with laws or policies limiting access to medical care for transgender minors is 26, according to the Kaiser Family Foundation. The number of states facing lawsuits challenging these laws OR policies is 17. The percentage of U.S. adults who oppose access to puberty blocking medication for children between the ages of 10 and 14 is 68, according to a 2022 Washington Post KFF poll the percentage of transgender US adults who oppose access to puberty blocking medication for children between the ages of 10 and 14 is 31% the percentage of US adults who oppose access to hormonal treatments for children between the ages of 15 and 17 is 58% and the percentage of transgender US adults who oppose access to hormonal treatments for children between the ages of 15 and 17 is 25%. All right, and last but not least, our have a nice day story. When Angela and Albin Bunting purchased two rundown houses for about 1,250 pounds in 1965, they knew the property was in need of many repairs, but they also saw great potential. That potential was realized decades later after the Buntings became grandparents and transformed the old buildings into cottage playhouses for their grandchildren, creating a Gothic style cottage with a spiral staircase, an Elizabethan shed and a Victorian post office. The Times has this story and there's a link in today's episode description all right everybody, that is it for today's episode. As always, if you'd like to support our work, Please go to readtangle.com and sign up for a membership. You can also head over to tangled media.supercast.com and sign up for our Premium Podcast membership, which which includes ad free daily podcasts, Friday editions, Sunday editions, bonus content, interviews and so much more. We should have an interesting Friday piece for you tomorrow and Isaac and Ari will be back with the Sunday podcast. I will return on Monday. For Isaac and the rest of the crew, this is John Law signing off. Have a fantastic weekend y'all. Peace.
- [31:47]
Isaac Saul
Our podcast is written by me, Isaac Saul and edited and engineered by Dean Thomas. Our script is edited by Ari Weitzman Will K back daily Saul and Sean Brady the logo for our podcast was made by Magdalena Bova, who was also our Social Media manager. The music for the podcast was produced by Diet75. And if you're looking for more from Tangle, please go check out our website@readtangle.com that's readtangle.com.
- [32:24]
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- [33:25]
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