Liveblog! Trans Lawyer Chase Strangio Badgers SCOTUS For 'Health Care,' 'Equal Protection'
Tennessee AG Jonathan Skrmetti would like to buy a vowel.
Welcome to your first ever early morning liveblog or at least the first ever by me, your friendly, neighborhood Crip Dyke.
“But Crip Dyke!” you say. “You never live blog. What could possibly have gotten you up at 7 a.m. Pacific on a Wednesday to write at us?”
Good question! It is the live audio of Supreme Court oral arguments (SCOTUS refuses to share video) on a case arising out of Tennessee called US v. Skrmetti, a name which I have been accused several times of making up. While not without reason, I promise you that if I were ever to make up a name for the attorney general of a MAGA state it would involve a couple of waffles, many more taints, and at least one melonfucker.
No, Tennessee Attorney General Jonathan Skrmetti is a real guy who looks rather like the child of that time Ferris Bueller hate fucked Tucker Carlson on a ball tanning bed.
While I shall in future spare you his face — let’s just agree to use pictures of Ferris — I cannot spare you a look at the ugly anti-trans politics of Tennessee’s Senate Bill 1, which bans health care procedures or insurance coverage for them when used to help trans people and doesn’t ban and does pay for when used to help non-trans people, known as “cis-sexual” or “cis,” which Elon Musk insists is a slur.
Trans kids and their parents won their case at the trial level, lost it on their first appeal, and then petitioned the Supreme Court to hear their arguments that Tennessee is treating trans kids unequally to an extent that is unconstitutional and also that the state is interfering with parents’ rights to make health care decisions for their own children.
That petition languished unanswered, and so OHJB’s DoJ stepped in and petitioned for SCOTUS to hear just the equal protection argument. It’s a bit impolitic for the Supreme Court to refuse to hear arguments in a disagreement between the federal government and one of the states, so that put the pressure on. As a result, SCOTUS granted only the federal petition and the case that started life as L.W. v. Skrmetti got renamed US v. Skrmetti and arguments have been narrowed to only the equal protection interests of the feds.
That makes this case very important. How important? The key issue today is actually just that: How important is it when a state treats its citizens differently? Tennessee wants the courts to believe that treating people differently is no big deal and that any old rationale, even a flimsy one resting on poor evidence, is good enough to pass any constitutional hurdle.
You can skip this part if you want to, it’s long!
This is the “rational basis” standard, and it makes it super easy, barely an inconvenience for a government to discriminate.
The feds and the lawyer for the kids and their parents will be arguing to place a more difficult hurdle in Tennessee’s path to discriminating against trans kids. They’ll be arguing for “intermediate scrutiny.”
Because rational basis is so easy to overcome, if Tennessee wins on the issue of what test to apply, Tennessee will also win on the substance. The hurdle for the good guys is a bit different. Even if the Court agrees that applying intermediate scrutiny is the correct standard, the test itself has been handled somewhat differently by different justices in different cases. But getting the Court to agree to apply intermediate scrutiny would be a huge win even if the Court ultimately does not throw out Tennessee’s law.
And this really is the important part: Win or lose on health care, if the court decides to back away from decisions that applied intermediate scrutiny to positive effect, cases like Romer v. Evans and US v. Virginia, then “equal protection under the law” could fail to protect a lot more than just trans people. Intermediate scrutiny has been applied in a number of areas, but the area most likely to be impacted by the decision in US v Skrmetti is gender, and last time Yr Wonkette checked, there are a whole lot of people with gender in these here United States.
Okay that long part you skipped is over. You should read again!
So get dressed, steal your dad’s Ferrari, and come on over: We’re going to listen in to oral arguments live starting at 10 a.m. Eastern and see if there’s any hope women and trans people will get a fair shake in the court system anytime in the next 10 or 20 years.
Arguments are scheduled to last one hour but routinely go over for important cases, and this is expected to be one of those. The DoJ and the trans families are splitting their half hour, so US Solicitor General Elizabeth Prelogar will go first (supposedly for 15 minutes); Chase Strangio, ACLU’s lawyer for the families, will go next; and then Tennessee Solicitor General Matthew Rice for a half hour.
For more background, you can also read Monday’s story on Missouri’s anti-trans health care law.
Now here’s your livestream!
And here is where I shall post my thoughts as we listen, together! So if you’re reading this in your inbox, you should scroll back up and click through to the website. Ready? Here we go!
10:05 Looks like we’re getting started a wee bit late this morning. SG Prelogar is up first, as soon as CJ Roberts can get this thing going.
10:10 And we’re off. Prelogar starts off with the important point that treatments aren’t banned, only trans-positive purposes.
6th circuit never considered the standard to be applied — intermediate scrutiny — and should be sent back for that analysis.
The law depends on a sex-based classification and therefore facially requires some level of heightened scrutiny.
Justice Roberts Is this really a ban since adults can access care? How does Equal Protection (EP) apply?
Prelogar: Yes, it’s really a ban, even if it’s only a ban for children, and if this case does not raise heightened scrutiny then the state could ban all care for adults any time later.
10:14 Thomas: If we on the court aren’t doctors, shouldn’t we leave this decision to legislators who are much more educated about trans health care?
Prelogar: Hahahahaha. Heightened scrutiny is still required for laws relating to medicine. That doesn’t mean that legislatures don’t get a say, it just means that EP isn’t abandoned.
Roberts: Yeah, but different ages for men and women buying alcohol is not the same as all this medical nuance.
Prelogar: There is no evidence of nuance. The risks for the medications are the same regardless of purpose.
10:20 Alito: But Sweden says that there are risks! And the UK’s Cass Report says there’s no evidence that benefits outweigh risks! Why did you say that all the evidence says that treatments are beneficial?
Prelogar: No, the evidence is strong. The fact that idiots exist around the world does not make the evidence different than it is.
Alito: But England! Cass Report! NHS!
Prelogar: To the extent that you think there’s evidence that’s not at all part of the trial record that should be considered, that’s a reason to send this back to the 6th for reconsideration. Also, EVERY country, including the UK, says that these treatments are sometimes medically necessary.
Alito: But the Cass Report! You only mentioned it in a footnote!
Prelogar: As I understand it, Tennessee is not the UK. Also, the UK hasn’t said what you are saying that they said.
10:26 Alito You seem to be looking at Bostock for guidance on how to determine what is a facial sex classification, but Dobbs v Jackson Women’s Health hated women pretty thoroughly, and I think it would be a good idea to treat trans people with the same contempt.
Prelogar Here we have a facial sex classification, and if you think we don’t, I think you’re probably having difficulty recognizing what a face is.
Alito But here’s a hypothetical law that hypothetically fucks over trans health care that doesn’t contain a facial sex classification.
Prelogar Okay, but that’s not this law. There are other issues with that law, but your point doesn’t have anything to do this case, so why are we doing this?
10:30 We are definitely going past 15 minutes here, even accounting for starting late. Sounds like we’re going to have to listen to Alito for a while yet.
Alito Pregnancy isn’t a proxy for sex.
Prelogar Well, sometimes it is, but we didn’t have the same language in previous cases, so it’s fair to look at the actual law at issue here to determine whether it discriminates based on sex. Considering a law from 50 years ago that is completely different doesn’t make sense at all.
Oh thank goodness, we’re done with Alito. On to Sotomayor.
Sotomayor: All the European countries recognize that this care is sometimes necessary?
Prelogar: Yes.
Sotomayor: Isn’t EP to guard against common sense notions that were actually just prejudice? And isn’t this necessary treatment?
Prelogar: Well, I’ll skip that first part and just say that it is medically necessary.
Sotomayor: One of the petitioners described throwing up? And going mute from anxiety? And isn’t the hurdle of intermediate scrutiny for the purpose of making sure that our stereotypes are double checked before they cause harm?
Prelogar: Yes. And states are not entirely barred from legislating here, but this is a sweeping ban with serious impacts and leaves the very same treatments entirely available for any other purpose that doesn’t threaten its stereotypes. It’s bad.
And now for Kagan:
Kagan: Isn’t it unduly formalistic to call this sex discrimination? Couldn’t we call it discrimination based on transgender status?
Prelogar: Well, you can’t have transgender status without sex classification. Call it what you want, it deserves the same scrutiny.
Kagan: Are you saying stereotypes are built in to how we conceive of trans people and cis people?
Prelogar: Yes.
Kagan: You seem to say that you can require heightened scrutiny without undoing every single law regulating trans health care, but you’re also saying that this is clearly sex discrimination. How do we adopt intermediate scrutiny without banning bans?
Prelogar: Look to the example of West Virginia’s law limiting care to situations when there is a second opinion, parental agreement, the symptoms are severe, and there is unanimity among medical staff that the treatment is medically indicated. That seems to work out okay, so states can do that. A WV doctor who is in their legislature even helped draft that. We think that’s fine.
Ugh. Kavanaugh.
10:42 BrewskiBro: But if the medical evidence is equivocal, can’t we discriminate then? What about the rights of legislatures to legislate?
Prelogar: If you’re worried about the rights of legislatures, remember that intermediate scrutiny isn’t STRICT scrutiny. It’s not as bad to discriminate based on gender as it is to discriminate based on race. At least according to the constitution. Or the constitution according to this court. So, you know, I’m more worried about the rights of the kids, but if you require intermediate scrutiny then the US is happy even if we disagree about whether that scrutiny would or wouldn’t render a particular statute invalid.
BrewskiBro: But detransitioners! States have to protect detransitioners!
Prelogar: If there’s evidence, then the state can substantiate its concerns and tailor its laws to address those concerns.
Also, you mentioned fertility, and fertility isn’t at all affected by puberty blockers while surgery on intersex kids can kill fertility entirely yet Tennessee didn’t bother addressing that at all.
You mention irreversible effects of hormones, but the effect of denying this care is to produce irreversible effects even though that might increase suicide risks and make adulthood harder since people pass less well. For the state to come in and say you can’t get this treatment b/c of birth sex is fucked up.
BrewskiBro: But detransitioners!
Prelogar: Yes, detransitioners exist. Can we move on?
BrewskiBrow: But if care is evolving in Europe, why should we constitutionalize this whole area of care?
Prelogar: We should constitutionalize sex discrimination, and we should do that because the constitution is supposed to ban most sex discrimination. Why should this care be exempt? Any laws that pass intermediate scrutiny would be fine, just like any other area in which legislatures have treated people differently on sex and gender. This isn’t new, you dork.
10:49 BrewskiBro: But trans people in sports!
Prelogar: That hasn’t been litigated and I have no set of facts, so I can’t tell you how intermediate scrutiny would apply. Hell, you’re not even giving me a hypothetical law with some detail I could consider. Are you even serious now? This isn’t what this case is about.
BrewskiBro: But if we say intermediate scrutiny, doesn’t that mean Hulk Hogan will rip the arms off women basketball players while wearing a tutu?
Prelogar: No. Are you for real?
New justice. I missed it. Either Brown Jackson or Coney Barrett. I suspect which will become obvious soon…
Okay, this discussion is getting dangerously close to asking whether interracial marriage should be bannable.
10:54 Justice: Should transgender be a suspect class? We haven’t ever discriminated against trans people in law.
WONKETTE: ARE YOU FUCKING FOR REAL? THERE HAVE BEEN ANTI-CROSS DRESSING LAWS FOR AGES.
And, okay, we now know that this is Coney Barrett.
Prelogar: Maybe we haven’t said we were discriminating against trans people in the law using the actual 1980s-coined word “transgender,” but laws have targeted people who violate gender stereotypes, and that means there has been de jure discrimination.
Coney Barrett: Yeah, but we did have de jure discrimination to point to with race, and those laws used the word “race” in them. No one used the word “transgender” in the laws of the US before very recently.
Prelogar: Because the word didn’t exist until recently.
Coney Barrett: We can’t create a new suspect class when there’s no de jure discrimination and surely the law never discriminated against trans people!
Prelogar: There’s a heavy record of discrimination and Tennessee does not even contest it. Why are you?
Coney Barrett: But you at least agree that there’s no parents’ rights issue here?
Prelogar: No, we think there’s an issue, but it’s not necessary to resolve this case.
Thank god we’re done with Coney Barrett. On to Brown Jackson.
11:02 Brown Jackson: There are so many classifications at issue here, including age and purpose. But there are sex/gender lines as well. If that’s true, does that mean that all our sex discrimination decisions are irrelevant b/c the state can just say that the law sidesteps gender discrimination analysis by having multiple classifications and sex is only one of them?
Prelogar: No, you still have to avoid sex discrimination even if you’re only discriminating on the basis of sex among people under 18 years old.
Brown Jackson: Did you think about the parallels with Loving v. Virginia? I see some.
Prelogar: Yes.
Brown Jackson: The most interesting comparison is that in Loving it seems like people all agreed that there’s a racial classification even though it punished white and Black people equally. Could Virginia could have gotten away with discrimination just by saying that there was no racial discrimination if all races are punished for crossing racial lines?
WONKETTE: GOSH! I WAS JUST TALKING ABOUT THE PROBLEMS WITH THE CLASSIFICATION ARGUMENT ON MONDAY!
11:12 Chase Strangio making an opening statement. Strangio represents the families and is the first out trans lawyer ever to argue before SCOTUS. This very minute is fucking historic, y’all.
Clarence Thomas: What do you want? What do you get if you win?
Strangio: Um, an injunction and remand to…
Thomas: No, I mean, what do you actually ultimately want?
Strangio: Health care? Is this a trick question?
Thomas: I don’t know. I’m noping out. Don’t really care about any of this.
11:15 Roberts: This isn’t naked discrimination. It’s complicated!
Strangio: Heightened scrutiny would be able to consider all those complicated factors.
Coney Barrett: Are there other laws that ask the court to make judgements about the medical context?
Strangio: COVID-19. Abortion. The court was competent to make decisions there. And it struck down laws even in the face of rapidly evolving scientific knowledge if constitutional rights were at issue.
Coney Barrett: But trans people are really complicated!
Strangio: The district court managed to consider all these factors. Are you saying that you’re not as smart as the district judge?
Sotomayor: There’s a lot of science in this area. My colleagues think we’re unsuited to answer these questions. What makes you think we are the right venue?
Strangio: The constitution? Suspect classifications exist, and it’s your job to step in and address how suspect classifications are used in law even when science sounds sciencey.
Sotomayor: There are very different numbers for desisters and detransitioners and people who regret some aspect of their care. Can you explain those differences?
Strangio: Yes. The numbers from Tennessee aren’t limited to trans youth who actually seek and receive medical care, just kids who violate gender norms.
Alito: What would intermediate scrutiny look like in practice? Wouldn’t this be endless litigation based on determinations by lay judges on complicated medical issues?
Strangio: There has been no litigation in West Virginia.
Alito: But the Cass Report says that there was no reduction in suicide.
Strangio: It’s hard to include dead people in studies, and that limits some research like asking someone whether they wouldn’t have killed themselves if they got different medical care, but we do have strong evidence that suicidal ideation and depression are reduced, so there’s good reason to think that some suicides are prevented even if the number is unknown.
11:30 Roberts: It seems like the constitution delegates these questions to the legislatures. We’re not doctors.
Strangio: Even after science was invented, the courts still retained the responsibility to ensure laws are constitutional.
Thomas: A while ago I was talking about remedies. Craig v. Boren was totally different from this case, so why should we apply Equal Protection?
Strangio: EP is applied in other scenarios, like Loving.
Thomas: But normally one group receives something the other group does not. That’s straight up Craig v. Boren. If we pretend Loving doesn’t exist, then you have to show that someone is denied something specific that people in another group get.
Strangio: We can do that, too. Why don’t you just go back to being silent. You sounded smarter then.
11:34 Alito: But what about gender fluid? Are they transgender? How does the court even know?
Strangio: People with information can actually handle that. It’s not rocket anthropology.
Alito: But if they exist, and you seem to acknowledge that they do, then this isn’t an immutable characteristic. Psychotic people aren’t a quasi suspect class. So why say that trans people constitute such a class?
Strangio: This court doesn’t have to establish that.
Alito: But would you dispute the fact that transgender status is an umbrella term?
Strangio: Not all trans people are binary, but the distinguishing characteristic is constitutionally relevant even if not entirely immutable. Also, not for nothing, it’s not easily or voluntarily mutable.
11:42 Kavanaugh: This is justified on health and safety. it’s very hard to weigh those. If the treatment is barred some kids will suffer, if it’s allowed some kids will suffer who get treatment and wish later that they hadn’t. There are risks both ways in the sense that treatment is only well tolerated by 99.5% of patients. As a matter of policy, shouldn’t the legislature of Tennessee be free to defend the deluded cis people who are the 0.5% at the cost of the 99.5%? I mean, the 0.5% proves that trans health care isn’t perfect, so why not ban it?
Strangio: A few points. The court isn’t choosing the appropriate policy. The courts’ role is to make sure that when a law is constitutionally challenged that the appropriate standard of review is employed.
With respect to the difference between rational basis and heightened scrutiny. That’s an error of the 6th circuit.
Kavanaugh: Gosh, rational basis, heightened scrutiny, it’s all so complicated and I have no idea what difference that would even make! Won’t the case just come back to us if we remand the case to apply scrutiny and then you end up dissatisfied?
Strangio: The court can send the case back down with instructions and we will be able to tell whethr the instructions are followed, so it won’t have to come back here as long as the courts follow your instructions.
Kavanaugh: But what about 3000 lb male boxers beating up 6th grade lacrosse-playing girls!
Coney Barrett: Oh! I didn’t realize about the cross dressing bans. So there was de jure discrimination?
Strangio: Yes. There’s a long history. Let me mention a few other laws.
Coney Barrett: But trans political power!
Strangio: Um, they’re trying to make it harder for us to be out in public, that has to limit our political participation. Yes, there are strong indications that trans people belong to a suspect class.
Brown Jackson: Doesn’t it seem weird that the rest of the court over there is saying that we should throw out constitutional analysis when science sounds too sciencey? Didn’t Virginia submit “scientific evidence” that Black people shouldn’t marry white people? I’m worried that we’re undermining the foundations of bedrock Equal Protection cases.
WONKETTE: GOSH, THAT’S WHAT YOUR FRIENDLY NEIGHBORHOOD CRIP DYKE WAS SAYING ON MONDAY!
Strangio: Yeah, they’re talking about killing decades of precedent and leaving our entire country vulnerable to gender and sex discrimination.
Strangio sits, and the case now goes to Tennessee’s solicitor general to try to defend the law.
Tennessee SG Rice: This isn’t sex discrimination. And it’s complicated! Medical! Sciencey! Detransitioners! Not enough evidence!
Thomas: What about alternative laws that are less harsh?
Rice: MUTILATION! DETRANSITIONERS! HARM!
12:00 Kagan: —Interrupts— You’re sounding a little hysterical. Isn’t that just a little cross sex? Maybe we should reground this discussion. The treatments are the same, but based on sex the treatments can be denied.
Rice: We do not agree that treatments are the same. Precocious puberty is not trans! Giving puberty blockers to one person is a totally different treatment than giving puberty blockers to a different person. It’s not the people who are different, it’s the treatment!
WONKETTE: Kagan tries to get rice to stick to THIS STATUTE that is being challenged. Rice keeps changing the topic to other statutes. He’s an asshole.
Kagan: Isn’t it crucial that the purpose is based on “cross sex” intentions? So when you say that it’s not about sex it’s based on purpose, that’s bullshit, isn’t it? The one is embedded in the other.
Rice: That sounds dangerously like establishing a right to violate stereotypes!
Sotomayor: I thought we had intermediate scrutiny of sex based classifications to protect freedoms, but you’re essentially claiming that the state could ban health care for trans adults.
Rice: Trans people can vote!
Sotomayor: Hahahahahahaha. They’re 1% of the population. What % were Black people before the civil war? What % were women in 1950?
Coney Barrett: I’m still riding my hobbyhorse of de jure discrimination and whether that could be used to create a new quasi-suspect class. Can you give me any support now that Strangio has shown me I’m an ignorant idiot about the history of discrimination in law?
Rice: New suspect classes suck and we think the court should properly avoid acting like people need protection. No one needs protection. They can just vote. Why even have constitutional limits?
Coney Barrett: What about sports?
Rice: Trans people suck and would definitely kill women’s sports if this court provided them protection. Don’t do that.
Brown Jackson: Let’s go back to Loving.
Rice: There was a racial line in that case. There’s not a sex based line in Tennessee’s anti-trans law.
Brown Jackson: Pfft. That sounds like bullshit.
Rice: It’s not bullshit! Boys respond to testosterone differently.
Brown Jackson: But you said it wasn’t about effects that it was about purposes. Are you now conceding it’s about effects?
Rice: No, I misspoke and I don’t want you to pay any attention to what I just said.
Kagan: The law explicitly says that the state law’s purpose is to encourage children to love their birth sex. So the state is clearly saying that obeying stereotypes is good and disobeying them is bad. Why is that a power the state should have?
12:15 Rice: When the legislature said that they wanted kids to appreciate their sex, they just meant that they didn’t want anyone to access trans health care without loving their own sex assigned at birth. That’s not bad! Also, there’s research that says treatment is bad!
WONKETTE: Kavanaugh and Rice talk about parental rights even though the issue was explicitly rejected by SCOTUS and shouldn’t, strictly speaking, even be discussed right now.
Brown Jackson: I don’t understand how you’re not making a sex based classification.
Rice: Well, boys and girls are different.
Brown Jackson: And that’s a sex based classification!
Rice: But… no. It’s not. Because reasons.
Brown Jackson: But didn’t we dispose of those reasons with prior EP cases like Loving? When whites and Blacks are equally disadvantaged by laws banning racial intermarriage, it’s still an EP violation.
Rice: There is no sex based line, because this is medicine. And medicine isn’t sex based, it’s diagnosis based.
12:22 Thomas: A number of times you’ve mentioned off-label uses. What are other off-label uses that are illegal in Tennessee?
Rice: Taking testosterone for the purpose of bodybuilding. Taking hormones to transition has nothing to do with sex categories.
Kavanaugh: One last thing! You’re not arguing that the constitution takes sides on this question. You’re arguing that the constitution is silent and it’s up to legislatures to make these decisions, so you’re not unfairly prohibiting California from letting trans people access health care.
Rice: Correct.
Kagan: But the constitution is still relevant if the law distinguishes based on sex.
Rice: I would prefer not to answer that question. Let me just say that I think Tennessee rocks and denying care is the right way to go. Thank you and may it please the court.
12:27 The court now opens for a few minutes of rebuttal from SG Prelogar.
Prelogar: This law looks nothing like a medical regulation. That would look like West Virginia’s law, and the reason it looks different is because the state wasn’t trying to regulate medicine but to promote being cis and condemn being trans. One of the petitioners has been severely impacted but the states don’t want the court to even take a look at the constitutional issues.
12:29: AND WE ARE DONE! The case is submitted.
Your friendly, neighborhood Crip Dyke also writes Pervert Justice!
“You never live blog. What could possibly have gotten you up at 7 a.m. Pacific on a Wednesday to write at us?”
Duty, concern for what is right, patriotism, defense of the Rule of Law, responsibility, love for fellow humans, etc. You know, Democrat stuff...
Thank you