The issues before the U.S. Supreme Court on Wednesday in the case of United States v. Skrmetti were of historic importance. Would the court adhere to its decision issued four years ago finding federal protections against discrimination on the basis of sex apply to transgender people as a matter of equal protection before the law? Or would it use this case to eliminate that fundamental protection for trans Americans, and possibly go beyond that to gut enforcement of laws against sex discrimination on the books for decades?
Based on the questions asked by the justices on Wednesday, the Republican-appointed majority on the court appeared ready to abandon its 2020 decision in Bostock v. Clayton County that recognized transgender individuals are covered by the Equal Protection Clause of the 14th Amendment. The questions from Justice Clarence Thomas and Justice Samuel Alito made it obvious they are willing to go further in rolling back protection against sex discrimination for all Americans, as well as undermining other anti-discrimination laws.
In addition to all this, another historic moment took place on Wednesday as ACLU attorney Chase Strangio stepped up to the court chamber’s podium and became the first openly trans person to argue a case before the U.S. Supreme Court.
Strangio, co-director of the ACLU’s LGBTQ & HIV Project, has become a nationally prominent attorney and defender of trans rights over the past decade, especially as a result his work opposing so-called “bathroom bills.”
“I’m still quite jarred by how much my entire life has become associated with bathrooms,” Strangio joked at the beginning of his speech at Grinnell College’s 2018 commencement ceremony. “But I think I’ll just go with it.”
Strangio, a 2004 Grinnell graduate, was honored at the ceremony with an honorary doctor of laws degree.
“Coming to Grinnell, it still very much feels like coming home,” he told the graduates at the spring ceremony.
“It was here that I learned how to love, where I learned how to live authentically and how to think critically. I learned to question what I had previously internalized as self-evident truth, to expose historical and political narratives as deeply contingent ideological sites for the production and maintenance of structures of power.”
Strangio said that when he graduated from Grinnell and returned to his home state of Massachusetts, he didn’t plan be an attorney or “work for big mainstream institutions like the ACLU. But when he took those steps, “Grinnell had already given me the tools that I needed.”
On Wednesday, Strangio appeared along with Solicitor General of the United States Elizabeth Prelogar to challenge a 2023 Tennessee law prohibiting trans youth from receiving medical treatments such as puberty blockers and hormone therapy. The law only applies to trans people under 18 receiving treatment, even with parental consent and when doctors consider such treatment to be essential for a patient’s health and well-being. Doctors are free to continue prescribing and treating non-trans patients with the same medications, including using them for gender-affirming care for cisgender youths. That is why both the ACLU and the Solicitor General argued the law violates the equal protections guaranteed by the Constitution.
Thirty-six states have enacted bans on medical treatments for trans youth in recent years. Iowa is one of those states.
“My presence at the Supreme Court as a transgender lawyer will have been possible because I have had access to the very medical treatment at the center of the case,” Strangio wrote in a New York Times op-ed published on Tuesday. “Though some doubt the lifesaving properties of this care, I know them personally. And so do my clients.”
Justice Alito went beyond doubting the lifesaving properties of gender-affirming care, and during his question of Prelogar and Strangio was absolutely dismissive of all the studies that show the care reduces suicides, suicidal ideation and other forms of self-harm.
“Do you maintain that the procedures and medications in question reduce the risk of suicide?” Alito asked Strangio.
“I do, Justice Alito, maintain that the medications in question reduce the risk of depression, anxiety, and suicidality, which are all indicators of potential suicide,” the attorney replied.
“Do you think that’s clearly established?” Alito continued, apparently not believing Strangio. “Do you think there’s reason for disagreement about that?”
Strangio answered Alito’s question, but the justice was clearly unmoved.
Following Alito’s questions, Justice Sonia Sotomayor, who was showing some impatience with the poorly informed questions from her Republican colleagues, said flatly, “The evidence is very clear that there are some children who need this treatment.”
Alito wasn’t the only one of the justices who sounded like they were basing their questions on the sort of anti-trans information circulated online by people like J.K. Rowling. Justice Amy Coney Barrett, the final justice appointed during Donald Trump’s first term, made what was perhaps the day’s more uniformed statement when she asserted that transgender Americans had not faced legal discrimination in the past.
“One question I have is, at least as far as I can think of, we don’t have a history — that I know of — we don’t have a history of de jure discrimination against transgender people,” Coney Barrett said.
By “de jure,” Coney Barrett meant discrimination as part of federal law — such as law mandating racial segregation — as opposed to social discrimination by fellow citizens and businesses.
“Transgender people are characterized as having a different gender identity than their birth sex. That is distinguishing,” Strangio said when he had the opportunity to address the justice. “I would also point, if I could, to the history of discrimination — and there are many examples — of in-law discrimination, exclusions from the military, criminal bans on cross-dressing, and others.”
Both Chief Justice John Roberts and Justice Brent Kavanaugh seemed to embrace the argument put forward by Tennessee’s Solicitor General Matthew Rice that the 2023 law cannot be considered a form of illegal sex discrimination because its prohibition applies to both male and female patients seeking gender-affirming care.
Justice Ketanji Brown Jackson, the lone Biden appointee, pointed out that logic would lead the court to finding the bans on interracial marriage the court struck down in 1967’s Loving v. Virginia to be constitutional because they applied to both white and Black people seeking to marry.
Surprisingly, the one justice who remained silent on Wednesday was Neil Gorsuch, Trump’s first appointee to the court. It was Gorsuch who wrote the majority opinion in the Bostock case, which declared, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
It was unclear why Gorsuch neither asked any questions nor made any statements on Wednesday.
The Bostock case found discriminating against an individual in employment because they are transgender violates the Constitution, but as the sentence quoted above indicates, if the justices decide to adhere to precedent it would apply to unequal treatment in medical care. But the current court has already demonstrated its willingness to disregard precedent to reach outcomes that match conservative ideology.
A decision in the case is expected before the Supreme Court recesses for its summer vacation at the end of June.
After the court’s session ended on Wednesday, Strangio spoke to trans rights supporters who were gathered outside the Supreme Court building.
“Our fight for justice did not begin today. It will not end in June, whatever the court decides,” he told them. “But here’s the thing — we are in it together. We’re in it together. Our power only grows.”
“I love being trans. I love being with you, and we are going to take care of each other.”
