To Deprive Trans Kids of Medical Care, Supreme Court Looks to Britain and Sweden
Supreme Court conservatives cited overseas laws to defend draconian legislation in Tennessee banning gender-affirming care. The post To Deprive Trans Kids of Medical Care, Supreme Court Looks to Britain and Sweden appeared first on The Intercept.
The Supreme Court on Wednesday heard oral arguments in a case that will determine the fate of trans youth health care — and likely many related rights and protections — in the United States.
United States vs. Skrmetti challenges Tennessee’s draconian blanket ban on gender-affirming medical care for trans youth. Like other anti-trans legislation proposed and passed in red states across the nation, Tennessee’s law is grounded in bunk science, discriminatory logic, and the right-wing’s violent pro-natalist agenda. And it is a law that the Supreme Court looks poised to uphold, based on the predictable questioning of the court’s conservative majority during oral arguments.
Wednesday’s hearing made clear the effectiveness of astroturfed anti-trans lobbying on legal decision-making. The court’s six right-wing justices parroted all of the typical weak arguments against providing young people health care deemed medically necessary. These arguments have all been thoroughly debunked in district courts and in the opinions of every major American pediatric medical association, so I will not restate them again here. What stood out, though, was the conservative judges’ repeated references to recent policy decisions in the United Kingdom and some European countries, like Sweden, to restrict access to gender-affirming health care to minors.
Justice Samuel Alito, for example, cited the deeply flawed Cass Review, a report co-authored by open anti-trans activists in Britain, where a highly organized anti-trans backlash has been horrifyingly successful in setting the national agenda and limiting access to gender-affirming medical care.
In referencing decisions in Sweden in recent years to restrict trans youth health care, Alito was unsurprisingly silent on the context there. Sweden, like numerous other European countries in the last decade, has seen a disturbing convergence between center- and far-right parties, and an ascendant politics of racist nationalism; the 2022 elections there put a conservative coalition including the far-right Sweden Democrats into power. It is under these political conditions — not by virtue of medical opinion or children’s health care needs — that anti-trans policies have been winning the day there.
It’s not every day that U.S. Supreme Court justices cite laws and regulations from other countries. Indeed, during Chief Justice John Roberts’s nomination hearings, when asked about the usefulness of foreign law to the U.S. courts, Roberts said, “If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge.” The fact that troubling British and Swedish reversals on health care positions were cited numerous times in this case is just further proof that it takes concerted cherry-picking to make an argument against medically necessary health care.
The adoption by Republicans of these European talking points is the work of organizations like the mendaciously named Society for Evidence-Based Gender Medicine, or SEGM, which push groundless anti-trans arguments under the flimsy guise of medical caution.
The conservative justices used the British and European cases — or rather vague gestures to them — as a way to suggest that uncertainty and doubt hang over best practices for treatment for trans youth. It is a fearmongering approach that has been shamefully entertained by all too many establishment Democrats and mainstream organs like the New York Times. It should not need repeating that trans youth who receive gender-affirming care experience extremely low levels of regret, and that there is no medical intervention of any kind that is 100-percent free of some cases of future regret — medicine doesn’t work that way. It is only trans health care, however, held up to such scrutiny, because of the underlying presence in all these arguments, that it would somehow be a bad thing for more kids and adults to be trans or otherwise gender nonconforming.
In response to the justices raising international examples, the U.S. Solicitor General Elizabeth Prelogar, who was arguing for the United States against the ban, and the American Civil Liberties Union’s Chase Strangio, who was arguing against Tennessee for the trans youth plaintiffs, stressed that none of the countries mentioned had enacted a blanket ban like the Tennessee law. This is true: There are new, cruel restrictions in Britain and Sweden, but not outright bans.
Prelogar and Strangio were in court today to stop an outright ban, which they correctly argued discriminates on the basis of sex. Tennessee’s ban draws sex-based lines and discriminates based on transgender status, treating cisgender girls and boys differently from trans girls and boys in violation of the Constitution’s guarantee of equal protection. In the court’s 2020 Bostock v. Clayton County decision, even two conservative justices, Roberts and Neil Gorsuch, agreed that gender-identity discrimination was sex-based. The fact that both trans boys and trans girls would be equally discriminated against does not eradicate this sex-based discrimination anymore than laws against interracial marriage could pretend to be nondiscrimatory for banning both white and Black people from marrying a person of a different race — the 1967 Loving v. Virginia decision outlawing bans on interracial marriage made that plain.
The fact that Strangio and Prelogar needed to point out that European laws were not blanket bans like Tennessee’s shows the sorry state of affairs, which attacks on trans existence have produced. The U.K., for example, should hardly be our benchmark. Since the U.K.’s National Health Service brought in new restrictions on trans youth health care access, trans kids have been left in a painful limbo, with often insurmountable barriers to accessing the healthcare they need. The waitlist for trans minors and adults even for a first appointment at a gender identity clinic in Britain can now be five years or more — a potentially deadly amount of time.
A peer-reviewed study by the Trevor Project found that suicide attempt rates in trans and nonbinary teens had risen by as much as 72 percent in the last four years, in the same period that legislative attacks on trans people have surged. Insufficient care is already the reality for the majority of trans youth in the U.S., especially poor trans kids of color, who may lack the resources or familial support to access adequate health care — gender-affirming or otherwise.
Strangio (the first openly trans lawyer to argue a case in the Supreme Court), Prelogar, and all lawyers fighting the barrage of extremist anti-trans laws are forced into positions of damage control. When Alito evoked the Cass Review on Wednesday to cite the claim that there is “no evidence” that gender-affirming medical care reduced trans youth suicides, Strangio responded that while the numbers might not be clear on “completed” suicides, ample long-term evidence is available showing significant reductions in suicidality and suffering.
The fact that whistleblowers in the U.K. claimed that Cass covered up trans youth suicides went without mention. But the entire discussion shows how very low Republicans and their anti-trans fellow travelers have brought this discourse: A trans lawyer in this country’s highest court had to point out that not all suicidal trans kids actually kill themselves. Such is the defensive position in legal battles against a far-right movement bent on eradicating trans existence and running roughshod over constitutional protections to do it.
The post To Deprive Trans Kids of Medical Care, Supreme Court Looks to Britain and Sweden appeared first on The Intercept.
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