This Opinion Piece on the Supreme Court Case Over a Ban on Gender Affirming Care is Awful

I read this story on Christmas Eve when it was published and thought about writing about it then. But because of the holiday no one was really talking about it and I thought maybe I was overreacting to how awful it was. Today, it’s finally getting some traction and so I’m circling back to it as Jen Psaki would say.

Average Politico headline:

The Supreme Court Case Over ______ Could Decimate ______. pic.twitter.com/qz6r5fjDzt

— Carrie Severino (@JCNSeverino) December 27, 2024

That’s probably true but the problem with this story isn’t that it’s generic but that it’s terrible.

Last I checked preventing kids from being mutilated has nothing to do with women’s equality. #HoldTheLine https://t.co/5vH0J9MdN4

— Nancy Mace (@NancyMace) December 27, 2024

Well, let’s dive into this turd-puddle and see what we find.

Earlier this month, the Supreme Court heard oral arguments in what is likely to be the term’s blockbuster case, United States v. Skrmetti. The case considers the constitutionality of state laws that ban gender-affirming care for transgender minors. While the case itself addresses only a law from Tennessee, 26 states have passed similar laws that will be affected by the outcome.

So far, so good. I wrote about the oral arguments in the case here. The argument made by the solicitor general and ACLU lawyer was that the ban was a form of sex discrimination because it would allow the use of puberty blockers in some cases. Here’s how the ACLU’s attorney explained it.

A birth-sex male who hits puberty too early can receive puberty blockers in order to later develop like other boys. A birth-sex female may also want to to receive puberty blockers in order to undergo puberty as a typical boy. So it is the same purpose, Strangio says, and what makes the treatment prohibited for the latter person is sex.

The author of this Politico opinion piece echoes those arguments:

SB1, the Tennessee law at issue in this case, bans certain medical treatments only when they are prescribed to allow a minor to affirm a gender that differs from their sex assigned at birth. The very same treatments are unrestricted if they are prescribed for any other purpose, such as treating delayed or early-onset puberty.

So it’s clear from the outset where the author is coming from. Of course what this leaves out is that the male in both examples is doing this to delay puberty for a brief time. The female is doing this to delay puberty forever and to start a transition to the other sex, one which could lead to additional irreversible treatments such as hormones and top surgery. These two things are not remotely alike. Stopping early puberty in males is designed to prevent them from literally growing up too fast. Stopping puberty in females is preventing their bodies from growing up at all.

Here’s where the argument really face plants.

The Tennessee law — and trans discrimination more generally — is not only about discrimination against trans people, but about ensuring that we all keep in our gender lanes. As Prelogar explained, the law here is “one that prohibits inconsistency with sex,” requiring that children born as boys and girls “look and live like boys and girls.” Tennessee’s argument would call into question the longstanding freedom we all enjoy to live our lives as we wish, regardless of sex.

There is no longstanding freedom for children to live their lives as they wish. This is not a thing that exists. Children have always been understood to be living under the care and guidance of parents until such time as they reach the age of maturity and are able to make adult decisions for themselves. 

The longstanding legal divide in the US is age 18. That is the age at which you are no longer a child, can vote, can enlist in the military, can buy property, get a tattoo and do other adult things on your own. Of course you still can’t legally drink or buy alcohol in most states. You have to be 21 for that. But the point is that you can make most of your own decisions starting at 18. Not coincidentally, this is also the age at which responsibility for criminal acts shifts from the juvenile justice system to the adult system. Juveniles are specifically treated with kid gloves because it’s assumed they can’t fully understand the consequences of their actions.

All that to say, the “longstanding freedom we all enjoy to live our lives as we wish” starts at 18, not at 12. Somehow the author has missed that. And she’s not done yet.

A friend-of-the-court brief from leading conservative anti-abortion group, Alliance Defending Freedom, worried that, “If both a boy and a girl are considering a mastectomy, only the girl gives up the ability to breastfeed her future child.” Scare tactics about girls renouncing maternity are part of anti-trans politics, with the cover of conservative critic Abigail Shrier’s book, Irreversible Damage: The Transgender Craze Seducing Our Daughters, showing a young girl with a blank space where her uterus would be. These anxieties about women rejecting motherhood are the very same ones that motivate much of the opposition to abortion — and they are grounded upon the very same sex stereotypes that the equal protection clause is meant to abolish.

Once again, the author pretends not to understand children are not allowed to make life-altering decisions for themselves precisely because they are too young to understand the consequences. A 12-year-old who wants top surgery because that’s what some Tumblr influencer convinced her is a good idea cannot possibly know what this will mean for them as an adult, an adult who may one day want to have a child.

As for Shrier’s book, the cover featured a young girl precisely because the majority of teens seeking gender affirming care in the past few years were girls, not because Shrier was singling them out. But notice how disjointed these sentences are: “the cover of conservative critic Abigail Shrier’s book…showing a young girl with a blank space where her uterus would be. These anxieties about women rejecting motherhood…” In the first sentence we’re talking about young girls. In the second one we’re talking about “women.” The author runs these together as if we’re talking about the same thing but we’re not.

Adult women are free to pursue whatever identity floats their boat and to reject motherhood all they want. Young girls are not allowed to do this, at least not when it comes to medicalizing those pursuits. Hopefully the Supreme Court will uphold this longstanding cultural distinction between children and adults when it issues a decision next summer.