By Stuart Gaffney and John Lewis–
In the groundbreaking 1970s TV sitcom All in the Family’s iconic opening theme song “Those Were the Days,” lead characters Archie Bunker and his wife Edith satirically yearn (often comically out of tune) for a mythical earlier time when, among other things, “you knew who you were” and “girls were girls, and men were men.” Over half a century later, our nation still struggles to free itself from the strictures of such a rigidly confining gender binary and to create a society in which individuals, especially LGBTIQ+ people, can truly discover, live, and be embraced for “who we are.”
Nowhere was that struggle more evident than at the U.S. Supreme Court’s December 4, 2024, oral argument in U.S. v. Skrmetti, a case in which courageous queer youth, their parents, a supportive physician, and the U.S. government are challenging a Tennessee law, known as SB1, which categorically bans all transgender and gender nonconforming minors from receiving life-saving gender-affirming medical care. Strikingly, both Justices Kagan and Barrett characterized SB1 as wanting “girls to be girls, and boys to be boys,” mirroring nearly verbatim the lyrics of “Those Were the Days,” whose longing for a supposed earlier era that, in fact, never actually existed eerily presaged Donald Trump’s “Make America Great Again” crusade of which anti-trans laws such as SB1 are part and parcel.
The two Justices described SB1 this way because the statute on its face seeks to impose a rigid gender binary on all youth in Tennessee regardless of their individual circumstances. SB1 absurdly declares that Tennessee has a “compelling interest in encouraging minors to appreciate their sex,” meaning, in Tennessee’s eyes, the sex they were assigned at birth, and not their authentic experience of their sex. As such, the law under its contorted logic outlaws any procedures “that might encourage minors to become disdainful of their sex.”
It’s shocking enough that Tennessee believes in dictating what its citizens should or should not be disdainful of. If anything, they should be “disdainful” of SB1 itself because the statute’s framing of its purpose completely misunderstands and/or mischaracterizes the context for gender-affirming medical care. Trans youth in need of care do not have “disdain” for their sex assigned at birth. They experience severe mental, emotional, and/or physical suffering because their true gender identity does not conform to it.
Justice Sotomayor reminded the Court at oral argument that “some children suffer incredibly with gender dysphoria,” including suicidal ideation, drug addiction, and physical illness. She described how one of the youths who brought the lawsuit was “throwing up every day, going almost mute … because of their inability to speak in a voice that they could live with.”
And SB1 is nonsensical when it implies that gender-affirming care causes youth to become “disdainful” of their sex. These medically necessary treatments prescribed in consultation with specialized physicians and parents or guardians do no such thing. U.S. Solicitor General Elizabeth Prelogar in her closing argument explained how the youth about whom Justice Sotomayor spoke says the medications he received “saved his life” and that “his parents say he’s now thriving.”
It was very disappointing to see that Justice Kavanaugh and some of the other members of the Court’s arch conservative Republican supermajority seemed to have bought into Tennessee’s specious argument, based on irrelevant and outdated studies, that the risk to youth who may later regret they chose to have gender-affirming care was as high or higher than the benefit that trans youth receive from such care. The ACLU’s Chase Strangio representing trans youth decimated Tennessee’s claim by pointing to evidence before the Court that that rate of regret is, in fact, “as low as 1 percent.”
The outcome of this case should be simple and straightforward. SB1 represents blatantly unconstitutional purposeful discrimination against vulnerable transgender youth. The Court should easily recognize that transgender people are a discreet minority group that has unquestionably suffered horrific discrimination and are unable on their own to protect themselves through the legislative process. Justice Sotomayor observed pointedly at oral argument that “when you’re 1 percent of the population or less, [it’s] very hard to see how the democratic process is going to protect you.” Trans minors are, in fact, an even smaller percentage of the population who particularly lack political power because, as teens, they cannot even vote.
The sudden slew of hundreds of anti-trans bills introduced in Republican-controlled state legislatures over the past few years is proof positive of the hostile social, political, and legal environment that trans people face today. Under well-established constitutional doctrine, laws that target such marginalized groups must be subjected to rigorous, heightened judicial scrutiny, which SB1 with its explicit discriminatory purpose and effect cannot survive.
But, unfortunately, the current Court’s conservative supermajority has shown no interest in recognizing transgender people as a group entitled to heightened constitutional protections. Because of this, the oral argument focused on whether SB1 constituted sex discrimination.
That too is a clear basis for invalidating SB1. In the Court’s 2020 landmark Bostock decision, holding that employment discrimination against LGBTIQ+ people is unlawful sex discrimination, Justice Gorsuch writing for the Court stated: “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The same logic applies here, and long-standing precedent holds that government’s differential treatment of a person based on sex is unconstitutional unless the government can provide an “exceedingly persuasive justification” for it. SB1’s categorical ban on all gender-affirming care for trans youth, which Solicitor General Prelogar described as “a stark departure from the State’s regulation of pediatric care in all other contexts,” can’t even come close to meeting that burden.
No one can know for sure the outcome of a case based on oral argument, although most Court observers believe the Court is poised to uphold SB1. Some speculate that Gorsuch, who wrote Bostock but oddly didn’t ask even a single question at oral argument in this case, and Barrett could conceivably join the three Democratic-appointed Justices and prevent the Court from upholding the law.
One thing we do know is that the Supreme Court and the nation as a whole need an education—indeed a crash course—on the reality of trans lives. The Court received part of that education in early December by the very presence of ACLU’s Chase Strangio, who became the first transgender person ever to argue before the Court.
We know that we will ultimately prevail in the struggle for trans dignity and equality because our community in the face of tremendous adversity has always stood strong, told our stories, and revealed the truth of our lives to make the world a better place. Some day—we don’t know when nor how much needless suffering will take place before then—we’ll look back and say, “Those were the days,” not in a nostalgic way, but in an empowering one as the time we truly stood up for trans people.
John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.
626 and Beyond
Published on December 19, 2024
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