By Ann Rostow–
Fall Goeth Before a Pride Parade
Let’s see now. Pride Sunday is coming up! The Supreme Court has agreed to hear the case of a Rastafarian who had his head forcibly shaved by prison officials. The Fifth Circuit struck Louisiana’s effort to put the Ten Commandments in public schools in a case that I’m guessing will continue. A group of five senators, John Hickenlooper, Elizabeth Warren, Jacky Rosen, Brian Schatz, and Tammy Baldwin, secretly rented an interior theater in the Kennedy Center and had a Pride sing-along to Broadway shows on June 23. And my cousin sent me a Daily Mail article headlined: “Female tycoon is private jet crazed lesbian who mocked male employee for being old, say ex-colleagues.”
“Something for your column?” my cousin wondered. Hell yes. I’ll take it! On June 18, which was, um, a Wednesday back whenever it was, the U.S. Supreme Court released its ruling in United States v Skrmetti, the one big giant GLBT case on its docket, a decision on whether or not states can outlaw transition treatments for transgender minors. The answer was “yes, sure thing!” So, we are soon headed down a twisty path, full of rock shadows.
But before we head into the darkness, we can fortify ourselves by touching on the madcap shenanigans of Jessica Mah, a venture capitalist who is accused of using millions of investor dollars to fund a “lavish lifestyle” with her business partner Andrea Barrica.
“Business partner?” you ask with a raised eyebrow. I know! The article implies that people in the know believe that the two share more than an interest in venture capital. But Mah claims she and Barrica are just gal pals and she is being unfairly attacked by Justin Caldbeck, a man whom The Daily Mail describes as a “#Metoo disgraced venture capitalist who fell out with Mah over the return on his investment.” In a lawsuit, Caldbeck called Mah “a charlatan living on investors’ funds.” Her portfolio of successful startups can only be called “unicorns,” says Caldbeck, “in the sense that they are also imaginary.”
Google these girls and see what you think.
Dismal Ruling From 6–3 Court
With no further delay, it’s time to face the music. States now have every opportunity to outlaw transition care including puberty blockers and hormones for people under 19, or 18, or however a minor is defined. The 6–3 majority opinion was a fairly short one, written by Roberts to a tight strike zone if you know what I mean. I’m not sure I know what I mean, so don’t sweat it. It’s a narrow decision.
The majority is accompanied by five other comments, a concurrence by Thomas, another concurrence by Alito, another concurrence written by Barrett and joined by Thomas, a dissent by Sotomayor with Jackson and partly with Kagan, and a separate dissent by Kagan. Oh, and Alito only joined the majority opinion with respect to “Parts I and IIB.”
Added to this complexity is this: The case began with a suit by transgender kids and parents who argued the Tennessee law discriminated on the basis of sex and trampled on constitutionally guaranteed parental rights. Last summer, the Biden administration entered the case as well, challenging the health ban as a sex-based violation of Equal Protection, (while Tennessee bans transgender kids from using puberty blockers and hormones, cis teens are allowed these treatments if they need them). After losing before the Sixth Circuit, the parties appealed to the High Court, which accepted review only for the government’s Equal Protection question. Last November, however, the Biden Administration went bye bye, as did its defense of trans kids in Tennessee and the couple dozen other states that outlaw these therapies.
By the time the Trump administration got going, the case had been briefed and argued. In February, the Trump Justice Department sent a letter to the Court reversing the government’s position on equal protection and effectively withdrawing support for the respondents. However, the letter went on to suggest that the Court decide the matter anyway, given that similar cases were in litigation around the country and many other states had trans-ban laws akin to the Volunteer State.
And here we are.
From what I gather, (because no, I have not read all six briefs with the slicing and dicing and screwing around with logic and precedent that apparently arise within many of them), Roberts tried his usual game of defining things down to the extent that one wonders why the Court decided to “decide” the matter to begin with. On the central issue of whether Tennessee’s law against transgender youth health is a form of sex discrimination—an Equal Rights violation requiring courts to scrutinize the offender—Roberts sidestepped, ruling that the Tennessee law does not discriminate on the basis of gender identity or even sex, but instead makes a legitimate determination based on age. You want to hold off puberty? You’re just a kid! Wait a few years and then you can have your blockers.
Plus, there’s no civil right at stake here, Roberts went on. You’re not being denied blockers because you’re transgender; you’re being denied them because you have been diagnosed with gender identity disorder. If you qualify for puberty blockers due to injury or some non-gender medical problem, you can still get them just like your cis buddy!
For example, hirsutism is the appearance of unwanted facial hair on pre-pubescent children. I guess most girls want something done about this, but I can’t really imagine a transboy would object to extra facial hair as puberty approaches. That said, Roberts notes, if a young transboy had a diagnosis of hirsutism, he would have no problem getting puberty blockers (pronouns mine), but there’s no “right” to specific medical formulations for specific disorders. Those can legally be trusted to the hands of state authorities with good scientific rationales.
(In this case, for example, Tennessee lawmakers determined that giving hormones and puberty blockers to teens “can lead to the minor becoming irreversibly sterile, having increased risk of disease and illness, or suffering from adverse and sometimes fatal psychological consequences.” We’ve all read the suicide statistics for trans-kids hitting puberty without support, so I’m wondering what kind of fatal psychological consequences the fellows over in Tennessee have found for those who get blockers.)
In case you’re wondering why Justice Alito didn’t like section IIA, it’s because he believes that transgender bias is never sex discrimination to begin with so there’s no need to hide from the issue like a little scared rabbit. As for Barrett, her concurrence can be summed up in her own lead sentence: “Because the Court concludes that Tennessee’s Senate Bill 1 does not classify on the basis of transgender status, it does not resolve whether transgender status constitutes a suspect class … . I write separately to explain why, in my view, it does not.”
Thanks for that, Amy.
Twists of Fate
I did my best just now, but I didn’t have the heart for parsing depressing lawsuits or opinions. To think that Mitch McConnell wouldn’t allow a vote on Merrick Garland for months and months. To think that Jim Comey announced he had found (redundant) emails that sounded bad for Clinton with just days before the 2016 election and handed it to Trump. Imagine what the world would look like if Clinton had served for four (or eight) years and appointed three justices.
In the aftermath of the Tennessee trans case, I’ve read several articles about how the GLBT community “pushed their luck,” or “went too far,” or what have you, which reminded me of the backlash to our fight for marriage equality after the GOP used marriage as a wedge issue in 2004. Yes, we fought for transgender rights, but it wasn’t our efforts that churned up a whirlwind of transphobia and let it race through the American heartland as the 2020 election approached. How were we to fight back for a cause that, unlike marriage equality, has a complicated, multi-faceted political character?
Our main fault as a community was adopting the all or nothing stance instead of accepting a level of uncertainty and putting some nuance into our politics. I know that, as a news writer/reporter, I often saw talking points from our various allies and activists reminding the reader that scientists have overwhelmingly said X, or studies have proved Y, or [your favorite anti-trans commentator] used bad science, or whatever it might be. However, the most cursory inspection of gender studies shows that the phenomenon of transitioning at an early stage is brand new. Obviously!
We have no idea what hormones and puberty blockers might do in fifty years. But then again, we do know what unsupported trans teens are going through right now, and it’s torture. We must find a way to say that without being accused of promoting untried medical experiments and destroying the human race.
As the majority noted in Skrmetti, several European health agencies have turned cautious in their treatment of trans youth, recognizing that we all lack knowledge. Early researchers have made conclusions based on insignificant numbers of people. Similar studies have contradicted each other. The British and the Norwegians now recommend kids be evaluated on a case-by-case basis. That makes sense to me, but “sensible” is not the American way these days. Not with conservatives in control of the Supreme Court and strongmen running our states. We have not been able to fight evangelical passion with nuance and hesitation. In our defense, it’s not easy to do that.
There are far more trans and non-binary kids today than there were a decade ago, let alone two decades ago, and they are growing up inundated with social media in a fast-changing world. They are still a tiny minority, and it’s unclear where the boundaries lie between those who are just growing up and experimenting with their identities and those who have deep pain over their gender and need professional help. But this increase has been enough to trigger real fear in a silent majority of Americans who know next to nothing about transgender identity. We’re not that far ahead of the rest of the country, but we pretend to be experts in order to stand our ground and, as such, we cannot express anything but certainty.
I Guess We Keep Going, Right?
One of the articles I read was by Nicholas Confessore in The New York Times. Headlined “How the Transgender Rights Movement Bet on the Supreme Court and Lost,” the piece had the demoralizing subhead, “The inside story of the case that could set the movement back a generation.” The Skrmetti case can’t be blamed for a potential quarter century of lost progress looming ahead, and indeed, its contribution to the recent and future decline in GLBT rights is only one factor in our larger community setback. But I was struck by one particular paragraph that traced the recent extremes of our activist fever dreams.
“In the wider culture, concepts of gender were becoming dizzyingly capacious, even confused. Challenging the idea of a rigid male-female binary, academic theorists detached gender from sex entirely, then reimagined it as an infinite spectrum. By the mid-2010s … a trans person might identify as male, female, or neither. The gender of a ‘gender fluid’ person might shift from month to month, or day to day. The phrase ‘sex assigned at birth’ … was now employed to suggest that biological sex was arbitrary, even a kind of fiction. Gender, not sex, was the inherent quality.”
Did it get this bad? Maybe. I certainly had little patience for, let’s say those who were insisting on tampons in the men’s room or the trans woman with a penis who complained about not being allowed to join a nude women’s getaway. In my experience, transgender activists themselves were not distracted by micro-discrimination, nor had they abandoned common sense. But maybe I was ignoring the ones who were and had. Maybe we set ourselves up for failure.
When we get our mojo back, will it be so difficult to point out to the country and each other that the difference between male and female is an integral part of all animal life and that the vast majority of people are binary creatures? That doesn’t diminish transgender or non-binary people any more than the heterosexual majority diminishes gay men and lesbians.
On the bright side of this ruling, I no longer have to keep checking the spelling of “Skrmetti,” the Attorney General of Tennessee.
arostow@aol.com
GLBT Fornight in Review
Published on June 26, 2025
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