SCOTUS hears case on treatments for trans minors.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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What is a liberal?

Managing Editor Ari Weitzman was taken with a point Sharon McMahon made during an interview with Isaac on election night, that Donald Trump is a disruptive force who doesn’t really fit the classic definition of “conservative.” We’ve read takes before about Trump asking what it means to be conservative, but the thought prompted this question that Ari has been hounding the staff with since then: What does it mean to be a liberal? In tomorrow’s subscribers-only piece, he gives his best shot at answering it.

Quick hits.

1. UnitedHealthcare CEO Brian Thompson was shot and killed outside a hotel in Manhattan. The suspect is still at large, and law enforcement have not ascribed a motive to the shooting. (The latest)
2. The French National Assembly passed a vote of no-confidence against Prime Minister Michel Barnier’s coalition government, prompting his resignation after three months in the role. French President Emmanuel Macron is expected to name a new prime minister in the coming days. (The vote)
3. Syrian rebels’ surprise offensive against President Bashar al-Assad has expanded to Hama, a major city in western Syria. The rebels now control all of Idlib Province and most of Aleppo Province. (The offensive)
4. President-elect Donald Trump nominated former Securities and Exchange Commissioner Paul Atkins to serve as the agency’s next chair. (The nomination) Separately, Trump nominated tech entrepreneur Jared Isaacman for NASA administrator. (The nomination) Finally, Trump announced that trade adviser Peter Navarro will serve as senior counselor for trade and manufacturing. Navarro served a four-month sentence for contempt of Congress after refusing to cooperate with the House select committee investigating the Jan. 6 Capitol riot. (The announcement)
5. Two children are in critical condition after a shooting at a school in California. Authorities believe the shooter may have targeted the school because of its affiliation with the Seventh-day Adventist Church. (The shooting)

Today's topic.

The Supreme Court case on healthcare for trans minors. On Wednesday, a majority of Supreme Court justices signaled that they were willing to allow states to pass laws limiting access to treatments prescribed for transgender teens. During over two hours of oral arguments in United States v. Skrmetti, a case challenging a Tennessee law banning gender transition surgeries and the use of puberty blockers and hormone therapy for transgender minors, five justices in the court’s conservative majority indicated they were likely to uphold the state’s law. The decision in Skrmetti would likely set a precedent that could affect other challenges to laws regarding transgender sports participation, bathroom use, and access to transgender care for adults.

Back up: In 2023, the Tennessee legislature passed SB1, a law banning surgical procedures and the administration of puberty blockers or hormones for the purposes of “enabling a minor to identify with, or live as, a purported identity inconsistent with the minor's sex.” SB1 allows for these treatments in cases of "congenital defects” not consistent with normal physical development, but not to treat “gender dysphoria, gender identity disorder, gender incongruence, or any mental condition, disorder, disability, or abnormality.” 

Three transgender teens challenged the ban, arguing that the law violated the Constitution’s equal protection clause. A federal judge agreed, saying that the treatments were not speculative or dangerous and issuing a preliminary injunction preventing the law from going into effect. The state then appealed to the 6th Circuit Court, which stayed the lower court’s decision and reinstated the ban. The plaintiffs petitioned the Biden administration to appeal the case to the Supreme Court, which it did in November of 2023. The court agreed to hear the case in June, with the U.S. Solicitor General Elizabeth Prelogar representing the plaintiffs and Tennessee Attorney General Jonathan Skrmetti arguing for the state.

What now: The court is determining whether SB1 unconstitutionally makes sex-based distinctions. The Biden administration and the families argue that since the law allows everyone except for transgender minors access to puberty blockers and hormones, the law therefore discriminates on the basis of sex and should be subjected to heightened scrutiny. The challengers also ground their argument in the Supreme Court’s 2020 decision in Bostock v. Clayton County, where the court found that sex-based federal employment laws also protect transgender employees. 

Tennessee has countered that the law is simply banning certain usages of medical procedures to protect the health and welfare of minors. The law is not sex-based discrimination, the state says, as it treats boys and girls the same, adding that being transgender is not a “quasi-suspect classification” that would allow for special protections.

During oral arguments, the court’s three liberal justices — Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor — seemed receptive to the challengers’ argument. "The evidence is very clear that there are some children who actually need this treatment," Sotomayor said. 

Conversely, five of the court’s conservative justices — Justices Samuel Alito, Amy Coney Barrett, Brett Kavanaugh, Clarence Thomas, and Chief Justice John Roberts — all signaled skepticism with the challenge. Roberts and Kavanaugh focused on not wanting the courts to settle medical issues, while Alito added that he was concerned that siding with the plaintiffs would invite “endless litigation.” Justice Neil Gorsuch, who wrote the majority opinion in Bostock, was silent throughout oral arguments.

Below, we get into what the right and left are saying about the oral arguments in Skrmetti v. United States. Then, I give my take.

What the right is saying.

• The right supports the Tennessee law, arguing that states are well within their rights to put restrictions on gender-affirming care for minors. 
• Some writers push back on the notion that the law is discriminatory. 
• Others suggest Justice Kagan is maneuvering to address broader transgender issues. 

In USA Today, Ingrid Jacques said the court “should uphold Tennessee law.”

“While proponents of such medical intervention on youth act like the science is settled and vital for the children’s well-being, that’s far from the truth. There’s simply not enough long-term data to know whether using puberty blockers (which stop the natural progression of puberty) and other drugs are safe,” Jacques wrote. “Even though some U.S. medical associations still maintain support for gender-affirming care for minors, others advocate a more cautious approach. For instance, earlier this year, the president of the American Society of Plastic Surgeons said he won’t perform these kinds of surgeries for adolescents because he’s not ‘confident’ it’s the right thing to do.”

“The ACLU will make similar arguments as it did four years ago when it represented a transgender individual who had been fired from a Michigan funeral home. The court ruled in favor of transgender rights in that case, which focused on the law banning workplace discrimination, including on the basis of sex. Yet, the stakes are different in this challenge, in that it deals with children and unsettled science,” Jacques said. “States like Tennessee that want guardrails in place for children should be allowed to have them.”

In The Tennessean, Tennessee Attorney General Jonathan Skrmetti argued the state’s law “is about regulation not discrimination.”

“Puberty blockers, hormone treatments and sex-reassignment surgeries are off-limits to kids in Tennessee. That’s the same common-sense approach we take with tattoos, alcohol and tobacco purchases, and other consequential decisions. Yet now, the federal government argues this age-conscious protection amounts to illegal discrimination,” Skrmetti wrote. “European countries were once enthusiastic about the use of these interventions to treat kids with gender dysphoria — kids who struggle with a conflict between their sex and their self-perception. But after careful review of the research, the medical communities that pioneered gender interventions for minors have pushed for restrictions because of new evidence.”

“The Biden Administration's argument would deny Tennessee a state’s traditional role in restricting risky medical procedures. This represents a fundamental misunderstanding of our constitutional system, where states serve as ‘laboratories of democracy’ and have particularly wide discretion to address areas of medical uncertainty,” Skrmetti said. “If some states want to take a different approach based on their values and interpretation of the evidence, they're free to do so. But the people of Tennessee, working through Gov. Bill Lee and a bipartisan supermajority of elected representatives, retain their right to protect kids from procedures deemed harmful by the legislature.”

In Reason, Josh Blackman explored “Kagan's play in Skrmetti.”

“Solicitor General Prelogar argued that the Tennessee law imposes a sex-based classification. But Justice Kagan pushed her former law clerk whether the law imposed a different type of a classification—on the ‘status’ of being transgender,” Blackman wrote. “Kagan's play is transparent. She will vote to uphold the Tennessee law, but say that rather than applying rational basis scrutiny, the Court should recognize transgender people as a quasi-suspect, and laws discriminating against transgender people are reviewed with rational basis ‘plus bite.’

“Prior to Obergefell, this was the roadmap for gay and lesbian discrimination. Kagan will say this Tennessee law survives that deferential standard, as would bans on transgender athletes, but lower federal courts will then have cover to halt all other laws that avoid those third rails. You can see how she would pitch this to Justices Barrett and Kavanaugh,” Blackman said. “Kagan is trying, once again, to broker a deal. Her ideal would be a 4-3-2 split, or even a 3-3-3 split. Tennessee prevails, but no majority opinion establishes the standard of review, giving a green light to lower courts to police transgender laws. And the liberals defensively deny cert on all trans cases for the rest of time.”

What the left is saying.

• The left worries that the court’s ruling will have far-reaching consequences beyond trans healthcare.
• Some say the law unfairly restricts families from making informed medical decisions. 
• Others argue the law should be upheld, pointing to emerging data on the risks of gender-affirming care for minors. 

In Vox, Ian Millhiser wrote about “the horrifying implications” of the case.

“The case asks whether discrimination against transgender people can violate the Constitution — and it appears most of the justices feel it does not. The likely result is that the Court will allow states to ban health procedures that enable gender-affirming care, both for minors and, potentially, adults,” Millhiser said. “Many of the justices suggested creating a carveout from the ordinary constitutional rule restricting sex-based discrimination of all kinds. Chief Justice John Roberts, for example, suggested giving the government broad authority to engage in such discrimination in the medical context — a ruling that could also have severe implications for women generally, including cisgender women.”

“The biggest question in Skrmetti, in other words, is likely to be how the Court finds a way to uphold Tennessee’s law, rather than whether the Court does so. And it seems fairly likely that the Court’s opinion could fundamentally alter the rules governing sex discrimination by the government,” Millhiser wrote. “If the Court can create a medical carveout to the general rule that all sex discrimination is presumptively unconstitutional, what other carveouts might they create in the future? For that matter, will the Court also create similar carveouts for other forms of discrimination, such as race discrimination?”

In Newsweek, Meredithe McNamara asked “will the Supreme Court put the state ahead of parents rights?”

“Tennessee's law bars parents from making health care decisions for their minor children and with their doctors—but only if those children are transgender. The stories of two patients of mine make this ban's flaws and contradictions clear. Catherine was an infant who weighed less than two pounds when I cared for her in the neonatal ICU and Sarah was 12 years old when her parents sought a referral for hormone therapy,” McNamara said. “Both girls received world-class medical care with their parents at the helm, but for very different reasons: Catherine was born 12 weeks early and Sarah is a transgender girl on the cusp of male puberty. Both families were charged with necessary, time-sensitive medical decisions..”

“It may be hard to see how Catherine's parents face just as fragile of a role in their daughter's life as Sarah's, but transgender youth aren't the only political zeitgeist to overlap with health care. In U.S. v. Skrmetti, Tennessee is asking the Supreme Court to expand the Dobbs v. Jackson Women's Health ruling. This would open the door for political interference in all corners of private life,” McNamara wrote. “An avalanche starts small. I am deeply worried that criminalization of parental decision making in gender-affirming care is the beginning of something ominous for all my patients and their parents.”

In The Free Press, ​Jamie Reed said she hopes the Supreme Court upholds Tennessee’s law.

“The medical practice of treating children who are distressed about their gender started out with good intentions. But this case, at its core, represents the profound failures that have occurred in our institutions. Failures that began when activism took over science. Failures that can only be corrected by the courageous, and now the courts. It should never have reached this point,” Reed wrote. “I was once on the front lines, among the proselytizers. Between 2018 and 2022, as a case manager at the Washington University Transgender Center at St. Louis Children’s Hospital, I worked with gender-dysphoric youth, and I initially thought we were helping patients.”

“Yet when I pulled back the curtain, I was shocked to learn this ‘science’ wasn’t worthy of the name. At our gender clinic, patients often had glaring comorbidities like depression, anxiety, ADHD, and eating disorders, or were on the autism spectrum. Many were young people who, if left alone, would most likely grow up to be gay men and lesbians, like myself,” Reed said. “That’s why I am here in favor of legislation that protects vulnerable young people from being misled by a medical system that has lost its bearings. I am in favor of protecting children who don’t have the capacity to understand the irreversible consequences—including possibly sterility—of these treatments.”

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

• On the legal merits, I think there’s a strong argument for this case to be returned to the lower courts. 
• In practical terms, I think this law will do more harm than good.
• I think we need more scrutiny for gender treatments for minors, but I think outright bans go too far.

Any time we write about Supreme Court cases, I try to separate my thoughts into two buckets: The legal arguments, and the practical outcome. This case obviously involves sensitive, hot-button issues for a lot of people, so I want to lean into that framework to navigate it in an evenhanded way.

Let's start with the legal arguments. Remember: This is not necessarily about how you feel about trans youth, or even medical treatment for trans youth. This is about the law and how it should be applied here.

Fundamentally, states passing laws aimed at protecting minors from perceived risks seems constitutional. Laws that do so are pretty normal: You have to be 21 to buy alcohol, 18 to buy tobacco, and in most states a certain age to drive or purchase a weapon. Legally (and societally), these kinds of restrictions between what adolescents and adults can do are common and accepted.

However, Tennessee’s law carries an additional fundamental question of whether it discriminates based on sex. This question is tied to a 1996 Supreme Court ruling that "all gender based classifications" are subject to something called heightened scrutiny, a legal term that effectively means presuming a law is unconstitutional and requiring the legislature that wrote it to prove otherwise. As Ian Millhiser explained (under “What the left is saying”), new laws can survive heightened scrutiny on sex-based discrimination if the state defending the law can prove its legislation is grounded in real differences between the sexes and not just on stereotypes or prejudices about the sexes.

This is why, throughout oral arguments, the lawyers representing the trans teens were trying to make the case that this law amounts to sex-based discrimination — they want the Supreme Court to send this case back to the lower courts with heightened scrutiny applied, which they think are the conditions that can strike the law down. In response, I thought Tennessee advanced a pretty good argument. The law bans the use of medical procedures in order to protect the health and welfare of minors, and it does not treat boys and girls differently — you can't receive hormone therapy, puberty blockers or surgeries in order to transition regardless of whether you are a boy or a girl. The state argued convincingly that the trans teens and the federal government were trying to create a “quasi-suspect classification” to allow for special protections. I found this compelling… initially.

But when I read the exchanges between the liberal justices and the Tennessee solicitor general, I began to feel differently. In particular, Justice Jackson’s exchange with Matthew Rice, the Tennessee solicitor general, made it clear that this law invites real questions about sex-based discrimination. Jackson posed the hypothetical of a boy wanting to take testosterone to deepen his voice and enhance his masculinity. Rice eventually conceded that, yes, the law would allow this — and then admitted that a girl who wanted to take testosterone to deepen her voice would not be allowed to do the same. Jackson argues that the difference here is the sex of the patient, while Rice argued that the difference was the purpose of the medication. But Jackson rightly pointed out that other statutes limit the use of these drugs based on purpose, not the law in question; thus, this law’s limiting factor seems to only be sex (the entire exchange is genuinely worth reading). Therefore, the state has to defend the law under heightened scrutiny.

On these points, as I read more, I became more sympathetic to the legal defense mounted by U.S. Solicitor General Elizabeth Prelogar, and I started to think the court should do what she is asking: Send the case back down to a federal appeals court and apply heightened scrutiny. Remember, the trans teens and the federal government are not arguing for this law to be struck down, but for it to be argued under a different standard. This would not assure the law’s demise — in fact, it’s possible, if not likely, that SB1 would still stand. But it does appear to be a worthwhile framework to consider the case under.

As for the practical outcome of this law going into effect, I'm more worried about the long-term implications than I am supportive of limiting how many youth are getting gender-related treatments.

For starters, I think it’s clear that the science on gender care for minors is not settled. As Ingrid Jacques put it (under “What the right is saying”), "there’s simply not enough long-term data to know whether using puberty blockers (which stop the natural progression of puberty) and other drugs are safe, have other unknown repercussions or even cause harm." It isn’t hard to find alarming (albeit anecdotal) stories in the U.S. about medical interventions for trans youth happening too liberally and with not enough scrutiny. Furthermore, some experts have begun to raise concerns about serious adverse effects of certain gender‐affirming care. And whether youth intervention reduces suicide among trans youth is actually an open question. Given the way care standards in some European countries are changing to limit how quickly medical interventions should be given, I think it's clear the U.S. needs to similarly re-evaluate the way it’s treating trans youth. 

But I also find it odd that the conclusion Tennessee lawmakers have drawn from "these treatments are unproven" is that we must ban all gender care for minors entirely.

On the one hand, we allow all sorts of dangerous drugs to treat medical issues because we recognize that medicines like chemotherapy — which can kill a patient — can be less deadly and provide more upside than just allowing cancer to spread. On the other hand, to extend the analogy, Tennessee is concerned that hospitals are treating patients who don’t have cancer with chemo, in which case more regulation would be justified. It’s a genuinely challenging question (hence this case being before the Supreme Court), but it feels to me like an all-out ban would be creating a problem in the opposite direction.

It’s true that some trans adults regret transitioning, or have serious health issues later in life because of puberty blockers or gender-transition surgeries they received as minors. But it’s also true that some, and likely more, trans adults are living happily because they were able to receive these treatments, which a law like this would have denied them access to as minors. We can still question whether medical intervention or social transitions are the best path forward for people with gender dysphoria, but those questions don’t really apply to the law at hand. 

Oddly, there is some flip-flopping of ideological preferences happening here. Many liberals are suddenly making “parental rights” arguments that are usually more popular in conservative circles, while many conservatives appear to be abandoning the kind of limited, small-government ethos that normally defines their ideologies. I tend toward the small-government, maximum-freedom approach in principle, and in this case allowing doctors and families to come to these decisions themselves strikes me as ideologically consistent. I both want us to apply much more scrutiny to gender treatments for minors (because I think it's obvious they carry a lot of risk) and I don't think blanket state-level bans are the answer. I’m not sure where that middle ground is, but I know that this kind of law won’t help get us there.

Looking ahead, the biggest question does not appear to be whether the court is going to uphold the law. I think they will. It's more about how they do it, and whether they create carveouts for other kinds of discrimination. After all, the same rationale that allows this law to go into effect for minors could also push similar laws forward for adults, which would open all sorts of worrisome questions about personal liberties related to all kinds of medical care down the line.

In defending the law, several of the conservative justices suggested that judges shouldn't be making these kinds of complicated medical decisions. I agree. Unlike them, though, I think we shouldn't leave it to state legislators in Tennessee, either. We should leave it to the doctors, medical experts, and families who are best positioned to answer these complicated questions on an individual basis.

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Under the radar.

Women in Afghanistan training to be midwives and nurses have reportedly been ordered not to return to their classes by the Taliban, closing off one of the final paths to education for women in the country. After the Taliban returned to power in 2021, they restricted most secondary and higher education opportunities for teenage girls, but midwifery and nursing remained accessible. The new policy will affect an estimated 17,000 women in these training courses and could exacerbate an existing shortage of midwivfes in Afghanistan, which has one of the worst maternal mortality rates in the world. The BBC has the story.

Numbers.

• 18%. The estimated percentage of people identifying as trangender who are between the ages of 13 and 17, according to UCLA’s Williams Institute.
• 300,000. The estimated number of transgender youth in the U.S. 
• 26. The number of states with laws or policies limiting access to medical care for transgender minors, according to the Kaiser Family Foundation. 
• 17. The number of states facing lawsuits challenging these laws or policies. 
• 68%. The percentage of U.S. adults who oppose access to puberty-blocking medication for children between the ages of 10 and 14, according to a 2022 Washington Post/KFF poll.
• 31%. The percentage of transgender U.S. adults who oppose access to puberty-blocking medication for children between the ages of 10 and 14. 
• 58%. The percentage of U.S. adults who oppose access to hormonal treatments for children between the ages of 15 and 17.
• 25%. The percentage of transgender U.S. adults who oppose access to hormonal treatments for children between the ages of 15 and 17.

The extras.

• One year ago today we wrote about the climate change conference in Dubai.
• The most clicked link in yesterday’s newsletter was the ad in the free version for the AquaVault charge card. Additionally, we know there was an issue with applying the discount code for this product yesterday, so the 40%-off sale has been extended for an additional 24 hours with code ‘TANGLE’ at checkout.
• Nothing to do with politics: A 90’s-themed website dedicated to Sammy Sosa.
• Yesterday’s survey: 3,175 readers responded to our survey on President-elect Trump nominating Kash Patel to lead the FBI with 80% opposed. “Patel has stated he's out for revenge. I believe him, and also believe that would be very dangerous for our country,” one respondent said.

Have a nice day.

When Angela and Alban Bunting purchased two run-down houses for about £1,250 in 1965, they knew the property was in need of many repairs; but they also saw great potential. That potential was realized decades later, after the Buntings became grandparents and transformed the old buildings into cottage playhouses for their grandchildren, creating a gothic-style cottage with a spiral staircase, an Elizabethan shed, and a Victorian post office. The Times has the story.

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