On Dec. 4, the United States Supreme Court heard oral argument in the case United States v. Skrmetti, testing the constitutionality of a recent Tennessee law banning so-called gender-affirming care for minors. While it is a risky game to predict outcomes based on oral argument, the skeptical questions from at least five of the justices seem to indicate that the Tennessee law will stand. Chief Justice John Roberts and Justices Clarence Thomas, Amy Barrett, Brett Kavanaugh and Samuel Alito were clearly unpersuaded by U.S. Solicitor General Elizabeth Prelogar’s arguments. And Justice Alito solicited fatal concessions from both Prelogar and Chase Strangio, the American Civil Liberties Union attorney representing the plaintiffs. These concessions have implications broader than the case before the court.
Other commentators will account for the procedural posture of this case, so it is not my purpose to wade into the technical legal standard of the kind of “scrutiny” the court should use to examine the Tennessee law. It is sufficient to note that the state of Tennessee has passed a statute banning the administration of puberty blockers, cross-sex hormones and mutilating surgery to minors, even with a parent’s consent. On this substantive point, it appears that the court is prepared to allow Tennessee’s law to stand. I base this prediction on three key moments in the oral argument, all involving questions asked by Justice Alito.
The Cass Review
In the past year or so, countries such as Sweden, Norway and the United Kingdom have dramatically curtailed (if not halted) the use of puberty blockers, cross-sex hormones and surgery for children. In all these cases, courts, health care organizations and physicians have concluded that there is no reliable evidence that the benefits of these treatments outweigh the risks. Indeed, they have concluded that, if anything, the long-term outcomes for children who undergo these treatments are worse than if they had not had them. This is summarized in the findings of an independent review of gender-identity services in the U.K. called the Cass Review.
Justice Alito’s invocation of the Cass Review was a key moment in the oral argument. He seized upon these data, essentially exposing the plaintiffs’ false assertions that this treatment is essential care because it allegedly saves the health and lives of so-called transgender children. Indeed, Alito challenged Prelogar to modify the assertion in her brief of “overwhelming evidence” that such care has produced positive long-term outcomes. Rather than do so, she quickly changed the subject.
The suicide lie
Alito pursued the point with ACLU attorney Chase Strangio, asking her if gender-affirming care reduced the rate of suicide compared to children with gender dysphoria who do not have such care. (In an interview on CNN the day before the oral argument, Strangio advocated mutilating surgery on children as young as two years old.) Strangio tried to deflect the question by changing it to “suicidal ideation” rather than attempted or completed suicide. She did this because, as Alito pointed out, the irrefutable data demonstrate no difference in attempted or completed suicide in either group. Justice Alito exposed the common lie from transgender ideologues that children will die if they are not mutilated. The evidence conclusively demonstrates that this is false. Suicide rates of children with gender dysphoria are not improved by administering so-called gender-affirming care. Strangio, of course, had no substantive answer because she must be fully aware that she is attempting to perpetuate a lie.
The mutability of ‘gender identity’
Perhaps the finest moment of the Skrmetti oral argument was the concession Justice Alito elicited from Strangio that gender identity is “fluid” rather than “immutable.” Again, Strangio attempted to obfuscate the point by claiming that gender identity is somehow hardwired into a person without regard to a person’s sexual physiology. She tried to claim, in other words, that gender incongruence (an “identity” that does not match biology) is immutable. This elicited the following exchange:
Alito: “Are there individuals who are born male, assigned male at birth, who at one point identify as female but then later come to identify as male, and, likewise for individuals who are assigned female at birth … identify as male but later come to identify as female?”
Strangio: “There are such people.”
Alito: “So it’s not an immutable characteristic, is it?”
Strangio bumbled and stumbled around a word salad of a nonresponse, but the point was made. And in making the point, Justice Alito demonstrated how utterly insane it is to perform life-altering surgery on children who — like all children — have changing perceptions of themselves in all sorts of ways, the vast majority of which are resolved as they grow into adulthood.
Transgender ideology is built on a foundation of obfuscation, prevarication, deception and outright lies. The U.S. Supreme Court appears poised not only to uphold Tennessee’s very sensible law protecting children from harm but also to expose the utter irrationality of so-called gender-affirming care, especially for children. Of course, I will follow up after the decision is handed down, sometime in the spring of 2025. For today, however, it appears that sanity has taken a hand.
