The Power Struggle Behind Trans Youth Health Care

Summary

Summary of "The Power Struggle Behind Trans Youth Health Care"

Podcast: The Opinions
Host: Lydia Polgreen & Masha Gessen
Release Date: December 9, 2024

1. Introduction to the Supreme Court Case

In the December 9, 2024 episode of The Opinions, Lydia Polgreen and Masha Gessen delve into the landmark Supreme Court case concerning Tennessee's attempt to ban gender-affirming care for minors. This case represents a pivotal moment in the ongoing national debate over transgender rights and healthcare access for youth.

2. Overview of Tennessee's Ban on Gender-Affirming Care

Lydia Polgreen begins by outlining the political landscape, highlighting the upcoming shift to a Republican-controlled government under Donald Trump. She emphasizes the potential implications of this shift on equal rights protections, particularly for marginalized minorities. The focal point is the Tennessee law that seeks to prohibit gender-affirming treatments for minors.

Lydia Polgreen [04:13]: "The Tennessee law bans all gender affirming medication for minors... arguing that the law was unconstitutional on two grounds: it violated the equal protection clause by discriminating on the basis of sex or transgender status, and it violated due process by making decisions that rightfully belong with parents and the family."

3. Courtroom Insights and Procedural Observations

Masha Gessen recounts her recent experience in the Supreme Court courtroom, reflecting on the administrative and social dynamics faced by transgender individuals in such high-stakes legal environments.

Masha Gessen [03:06]: "I ended up going in a suit and an open collar shirt. So this time the press guidelines did not specify male and female dress codes. And I was definitely not the only trans person in the room."

She describes moments that underscore the persistent lack of understanding and recognition of non-binary identities, highlighting the challenges transgender individuals face even in prestigious institutions like the Supreme Court.

4. Legal Arguments and Equal Protection

The discussion shifts to the core legal arguments presented in the case. While the plaintiffs challenged the law on both equal protection and due process grounds, the Supreme Court agreed to hear only the equal protection aspect. This narrow focus, according to Gessen, sidelines the more personal and human elements of the case.

Masha Gessen [05:26]: "There wasn't a single reference in the oral arguments to the actual three families. You know, it's weird because usually strategic litigation focuses on the human story, and it was totally sterilized and dehumanized."

Lydia highlights the implications of this focus, suggesting that stripping away the personal narratives reduces the case to an abstract legal battle, potentially minimizing the real-life impact on transgender youth and their families.

5. The Role of Autocracy and Expertise in Transgender Rights

Gessen provides a broader analysis of the political motivations behind targeting transgender rights, framing it as part of a strategy employed by emerging autocrats to undermine recent social progress and disempower marginalized groups.

Masha Gessen [06:46]: "Autocrats go after minorities, the most marginalized people... trans people are the perfect target."

She critiques the Supreme Court's engagement with scientific debates over gender-affirming care, arguing that such matters should be left to medical professionals and not adjudicated by the judiciary.

6. Judicial Overreach and the Scientific Debate

Polgreen and Gessen discuss the conservative justices' tendency to question the scientific validity of gender-affirming treatments, noting an unusual reliance on international perspectives and medical guidelines.

Lydia Polgreen [08:55]: "There were frequencies, invocations of some of the changes that have taken place in Europe... questioning if the care is effective and safe."

Gessen criticizes Justice Alito and others for referencing healthcare policies from countries like Sweden and Britain, which reflect internal medical debates rather than judicial precedents relevant to the United States.

7. Bodily Autonomy and Reproductive Rights

Polgreen draws parallels between the fight for transgender rights and reproductive rights, emphasizing the importance of bodily autonomy and the ability to make personal medical decisions without governmental interference.

Masha Gessen [12:28]: "A lot of this fight is actually a pure reproductive rights fight... regulating reproduction and raising it as the ultimate space of regulation."

This framing underscores the broader implications of the Tennessee case, suggesting that the battle over transgender healthcare is intrinsically linked to fundamental issues of personal freedom and reproductive control.

8. The Legacy of Loving v. Virginia

A poignant moment in the hearing was when Justice Ketanji Brown Jackson referenced Loving v. Virginia, drawing a parallel between the fight against racial discrimination and the current battle for transgender rights.

Lydia Polgreen [15:29]: "She pointed out was arguing that the science was on its side."

Gessen reflects on this invocation as a reminder of the Supreme Court's potential role in moral and ethical deliberations, contrasting it with the otherwise narrow and contentious nature of the hearing.

9. Implications for Future Healthcare Access

The conversation concludes with a discussion on the broader stakes of the case. Gessen warns that if the Supreme Court upholds the Tennessee ban, it could set a dangerous precedent, potentially allowing legislative bodies to override medical expertise and restrict healthcare access for transgender individuals nationwide.

Masha Gessen [16:30]: "There’s absolutely no reason for state legislators or the federal government not to ban gender affirming treatment altogether. It's happened elsewhere. It happened in Russia, where I'm from. Why wouldn't it happen here?"

10. Conclusion

Polgreen and Gessen wrap up the discussion by reiterating the critical importance of the Supreme Court's decision, not only for transgender youth but for the broader landscape of civil rights and personal autonomy in the United States. They highlight the need for vigilance and advocacy to protect and advance the rights of marginalized communities in the face of evolving legal and political challenges.

---

This episode of The Opinions offers a comprehensive and insightful examination of the intersection between law, politics, and transgender healthcare, providing listeners with a nuanced understanding of the challenges and stakes involved in this pivotal Supreme Court case.

Transcript

[Lydia Polgreen]

This podcast is supported by US Bank. At US bank, when they say they're in it with you, they mean it. Not just for the good stuff, the grand openings and celebrations, although those are pretty great, but for all the hard work it took to get there. Because together they're proving day in and day out that there is nothing as powerful as the power of us. Visit us bank.com to get started today. Equal Housing Lender Member FDIC.

[Masha Gessen]

This is the Opinions, a show that brings you a mix of voices from New York Times opinion. You've heard the news. Here's what to make of it.

[Lydia Polgreen]

I'm Lydia Polgreen, an opinion columnist for the New York Times.

[Masha Gessen]

And I'm Masha Gessen, also an opinion columnist for the New York Times.

[Lydia Polgreen]

So Trump and the GOP will have a governing trifecta in the new year. And amid the many policies that I think will hurt many Americans is a shift in the way the government and the courts see equal rights, particularly those for some of the country's smallest and most vulnerable minorities. Last week, the Supreme Court heard arguments on whether or not Tennessee could ban gender affirming care for minors. And we won't know for sure until June, but there's already analysis that the court seems to be leaning toward upholding the state's ban. Masha, you were there in the courtroom. I wonder what it was like in the room.

[Masha Gessen]

I hadn't been to the Supreme Court since 2019 and 2019, I was there for the oral arguments in the Bostock case, which is the last time the court took up the topic of trans rights. And that was the amazing decision that Neil Gorsuch of all people wrote that ruled that trans people are covered by title 7 for the purposes of employment discrimination, which is the biggest judicial victory that trans people have ever had in this country. So, and I remember, you know, getting an email from the Supreme Court press service before going to the hearing that outlined the dress code for men and women and thinking, okay, well what do I do? You know, like, I do I wear a tie. I don't wear ties, but obviously I'm not wearing a skirt. Like, what do I do? Right? And I ended up going in a suit and an open collar shirt. So this time the press guidelines did not specify male and female dress codes. They just specified business attire. And I was definitely not the only trans people in the repressed room, which I think I may have been last time. And then there's this. I don't know if you've ever been to the Supreme Court, but as in many of those press situations where you're a group, suddenly you become like toddlers. You hand these cards with your seat number and you're supposed to line up an order of your seat number, and then you're marched into the room single file. But first, a staff member got up on a chair and said, does anybody need to go to the bathroom?

[Lydia Polgreen]

Wow.

[Masha Gessen]

Which, you know, is a loaded question because it's hard to go to the bathroom in a federal building. Then she proceeds to say that the men's room is next door to the press room and the women's room is down the hall. And if that's not bad enough, another reporter raises her hand and says, where do non binary people go? And the staff person was like, I swear to God, she'd never heard the word non binary.

[Lydia Polgreen]

Wow.

[Masha Gessen]

And so, you know, then everybody went to the press room, and as far as I know, nobody had an accident. But it was a reminder of just how tenuous our presence there is and how recent this visibility is. Like this particular person, if I understood the dynamics correctly, she won't notice when non binary people become invisible again, because to her, they never became visible.

[Lydia Polgreen]

Yeah. For people who haven't been following, could you just briefly summarize what this case is all about and why it matters?

[Masha Gessen]

So the Tennessee law bans all gender affirming medication for minors. And three Tennessee adolescents and their families sued the state of Tennessee, and they argued that the law was unconstitutional on two grounds. One is that it violated the equal protection clause by discriminating on the basis of sex or transgender status. And the other is that it violated due process by making decisions that rightfully belong with parents and the family and not with the state. So the Supreme Court agreed to hear the case, but only on equal protection grants, not on due process grants. So what to me is actually the most important part of the case, which is the actual care and who decides on care? That wasn't part of the case. Right. It wasn't part of what we heard in the Supreme Court. There wasn't a single reference in the oral arguments to the actual three families.

[Lydia Polgreen]

So they were just there kind of as bystanders in a way of this process that was about something maybe more abstract than their actual lives.

[Masha Gessen]

You know, it's weird because usually strategic litigation focuses on the human story, and it was totally sterilized and dehumanized with the exception, I'd say, of one moment, when Justice Katania Jackson said that she was reminded of Loving vs. Virginia, when the state was challenged on equal protection Grounds. And the state was arguing that there was no discrimination, but also, she pointed out, was arguing that the science was on its side.

[Lydia Polgreen]

Well, let's come back to that, because I think that that really kind of gets into the meat of what I think we should talk about about this argument and this decision. But I first want to just kind of back up a little bit the lives of transgender people and the affirming that they seek out. This has become really central to our politics in a variety of ways. And that's interesting and striking because this is actually a pretty small group of people, but the politics around it seem to have proven in places that you've covered and places that I've covered to be just incredibly potent. So could you talk a little bit about that disjuncture? I mean, it's having this sort of weird clinical discussion about rights while there's been this kind of ferment and stirring up of animus around trans people.

[Masha Gessen]

Yeah. So, you know, I've been thinking about it in several different ways. One, and it's almost a cliche, but I think it bears repeating that autocrats, budding autocrats, they go after minorities, they go after the most marginalized people, they go after people who are most vulnerable. But also I think they strategically focus on reversing social change that is most recent, that's easiest to reverse. And of course, you know, in that sense, trans people, LGBTQ people more generally, but trans people in particular are the perfect target. You know, there's a real built in conflict between autocracy and expertise. And we really saw that conflict play out. And, you know, we've seen it play out in legislatures all over the country. And we saw it play out in the Supreme Court. And it's pretty amazing when dozens of professional medical associations file briefs with the Court saying this is the standard of care. And I should say, obviously, as a queer person and actually somebody who's written extensively in my career about medicine, I don't always think that standards of care are unassailable, but they should not be overruled by legislature or the courts. There are other places to litigate whether standards of care are correct. The media is one of them, but the courts are not. So what's incredible to me is that the justices seem to be unaware of this basic tension like that they shouldn't be doing this. They should not be posing questions about medicine. They should not be ruling on questions of medicine. And they kept incredibly returning to questions of medicine, getting completely lost in the weeds because they don't know what they're talking about, which they. They shouldn't. They have other things to think about that they do understand, and yet they seem to think nothing about the problem of ruling in this space. And that, to me, is a symptom of just how far we've fallen.

[Lydia Polgreen]

Yeah. Well, it's interesting listening to the argument virtually, I was really struck by how often the justices, particularly on the conservative side, kept returning to this idea of the science being uncertain. There were frequencies, invocations of some of the changes that have taken place in Europe. I've written about them. You have as well, that have kind of pulled back, I guess, is one way you could describe it, and have thrown questions about how sure are we that this care is effective, that it's safe, that it's this, that it's that. And there seemed to be, in an uncharacteristic way, a desire to bring in international expertise in a way that's quite unusual for conservative justices in the Supreme Court. But it did seem as though. And there was a particular moment, I think, when Justice Kavanaugh said something like, well, you know, there's a group of people that you're claiming are harmed, meaning trans children, if they don't get this care, but there's also a group of children who would be harmed, you know, children who maybe would regret having received this care, as if they were somehow equivalent groups of people. And there did seem to be this desire to sort of throw up their hands and say, well, someone's gonna get hurt, and we just need to leave it to the legislature to decide which, you know, where to kind of weigh in on that.

[Masha Gessen]

Right. And Justice Kavanaugh said, you know, there are risks on both sides, which, again, does not seem to need to be a space that the Supreme Court should be venturing into. It decided very narrowly on what questions it was going to consider. And yet during the hearing, it kept going well outside of that question of equal protection into questions of science. And you're right, yes. They kept invoking. I think it was particularly Justice Alito who kept invoking the. The Swedish and British revised policies on gender affirming care. As I think you've pointed out, these are national healthcare systems, and what they're looking at are healthcare regulators. So what they're actually looking at as precedent is the debate that's happening inside the medical community where it belongs. And some medical authorities are introducing more stringent guidelines for the medical community, which is a world of difference from the legislature introducing guidelines for the medical community. And the fact that our justices don't seem to be able to know the difference is shocking.

[Lydia Polgreen]

Well, so let's come back to this question of the two separate arguments that were made and dwell for a moment on the one that the justices decided not to hear, which is the question of kind of who makes the decision. One of the conversations that's been happening around transgender rights, and you recently wrote a column about this, is. Is about this idea, this connection between kind of bodily autonomy, choice, broadly speaking, I think advocates for abortion have made this. And advocates for trans rights have made this analogy between the need to be able to control your own body and make your own medical decisions and linking trans rights and abortion rights together in that way. And I think you took the argument even a step further. But that argument about kind of who makes the decision, and in the context of trans rights, I think a kind of ideal argument was one where it was saying, hey, actually, parents should be in the driver's seat along with doctors making this decision. And the court decided not to hear that. That argument, which was striking to me. I'm listening to the argument. It seemed that they were basically saying, you know, it seems like there's a lot of controversy here. We judges can't necessarily decide, but the right people to decide are not the medical experts, but the legislature.

[Masha Gessen]

Exactly.

[Lydia Polgreen]

And that. And that. And that they're the ones who could kind of parse through all the evidence and make these decisions.

[Masha Gessen]

Right. But let's backtrack for a second to the first part of your question, which is about how we even think about trans rights. Right. And I think that one way to think about it is to think about bodily autonomy. But the way that I propose taking it further is that I think it's a lot of this fight is actually a pure reproductive rights fight. I'm not actually a huge fan of reframing the right to abortion as the right to choose. I think that calling things what they are is generally useful, and it is particularly useful when we think about the similarities between the right to abortion and the right to trans care. It was very clear during the Supreme Court hearing when the Tennessee Solicitor General was speaking, what's the ultimate harm? The ultimate harm is the loss of fertility. That's what they're really sort of positing as the reason to ban treatment as the thing to avoid. It's not so much about regret. It's really about young people and their families who should not be allowed to decide whether they reproduce. And that, I think, is a useful frame, because then we realize, oh, wait a second. These guys are really trying to decide who gets to reproduce and who should be reproducing all the time. They are both, in their legislative efforts, regulating reproduction, and then their politics, constantly raising reproduction as sort of the ultimate goal or the ultimate space of regulation.

[Lydia Polgreen]

Yeah, well. And so, I mean, it is striking that sort of all of those questions were kind of put to the side of, you know, kind of who decides? And everything was in. The argument was invested in this question of equal protection. So let's dig into that a little bit. You know, one of the most sort of poignant moments for me in the hearing was when Ketenji Brown Jackson invoked the Loving case. And, you know, Loving v. Virginia was a case in which the Supreme Court decided that laws against interracial marriage were unconstitutional. And, you know, I think that what she saw coming in the kinds of arguments that were being advanced in favor of this not being sex discrimination, I think she feared, were arguments about equal protection that could really eat at the foundations of some of our basic ideas about what equal protection is. And, you know, the interpretation of the 14th Amendment that comes out of, say, something like Brown v. The Board of Education, that separate can't really be equal. And so I think I sensed, and I'd be curious how it felt in the room. I sensed a real kind of certainly concern about, you know, kind of where this kind of reasoning leads you, because the government of Virginia tried to argue that there was a scientific basis. Right. That racial differences were. Were actually meaningful differences of different types of human beings.

[Masha Gessen]

You know, I also found that moment, it felt profound. And it felt profound because it was a moment of a kind of like what the Supreme Court should be, what the Supreme Court has been on occasion, which is a place of a kind of real moral searching and aspiration. And it really threw into relief what the rest of the hearing felt like.

[Lydia Polgreen]

Yeah, I think that one of the things that feels like it kind of gets lost in all of this is the actual, like, what's really at stake here. Right. I mean, we're talking about, you know, young people and their access to treatments that will help them feel more at home in their own bodies, make them able to perhaps delay puberty to give them time to think about what they really want for themselves and for their future. But I think there was also a sense, you know, from the questions that if this law is constitutional, there's not much keeping transition for adults safe. So could you play that out a little bit?

[Masha Gessen]

Sure. I mean, again, I think that the fact that the court decided to hear this case communicates that it is okay for a legislative body or any other kind of government authority to make decisions about people's medical treatments. But if we leave it unquestioned that the government can make decisions and can overrule the will of the doctors and the family or the patient, then there's absolutely no reason for state legislators or the federal government not to ban gender affirming treatment altogether. It's happened elsewhere. It happened in Russia, where I'm from. Why wouldn't it happen here?

[Lydia Polgreen]

Well Masha, I really appreciate you taking the time to talk about this and as always, great to hear your perspectives.

[Masha Gessen]

It is always good to talk to you and thank you for guiding this conversation.

If you like this show, follow it on Spotify, Apple or wherever you get your podcasts. This show is produced by Derek Arthur, Sophia Alvarez, Boyd Vishaka Durba, Phoebe Lett, Christina Samulewski and Gillian Weinberger. It's edited by Kari Pitkin, Alison Brusek and Annie Rose Strasser. Engineering, mixing and original music by Isaac Jones, sonia Herrero, Pat McCusker, Carol Sabaro and Afim Shapiro. Additional music by Amin Suhota. The Fact Check team is Kate Sinclair, Mary, Marge Locker and Michelle Harris. Audience strategy by Shannon Basta, cr, Christina Samulewski and Adrian Rivera. The executive producer of Times Opinion Audio is Annie Rose, Dresser.