Inside U.S. v. Skrmetti

Hey, translash, fam. This is the mess Imara’s Guide to our political hellscape. And that’s me. I’m Amara. I’m so glad that you’re here again. This is our last show of the year. So we’re so glad that you have stuck with us throughout all of the machinations and the ups and downs of this year. We will sadly or perhaps joyfully, have to continue this because our politics isn’t giving us a break. There’s a lot of stuff that’s very serious and painful happening, but also a lot of absurdity, and we’re going to keep guiding you through it all in the year ahead, this episode of the mess is going to be special. It’s our special edition, and it’s going to be focused entirely on the US versus COVID oral arguments that took place on December 4 at the Supreme Court of the United States, where I was able to watch from inside of the chambers the oral arguments themselves. So today, we’re going to be reacting to some of the most interesting and pivotal moments throughout that particular oral argument in order to ground you into what happened. And it’ll be something that you’ll be able to go back and listen to as more details of this case come forward, because it’s not going anywhere anytime soon. So with that, let’s get messy. So first up, what is this case all about? Well, ostensibly, it is about whether or not trans people are covered by the Constitution under the equal protection clause, that’s the 14th Amendment, which says that everyone has to be treated the same under the law, and there are different classifications for what it means to be treated equally under the law. One of those is a bannekin sex discrimination, which basically requires a higher level of scrutiny from the government. They can’t just randomly discriminate against people based upon sex. They have to do a lot of digging and justifying under the law to be able to do that. So that’s what this case was about, whether or not trans people are covered by the Equal Protection Clause, just like everybody else under the Constitution. And here’s the opening statement from the Solicitor General, the person who argues in front of the Supreme Court on behalf of the government here is essentially how they frame the issue of equal protection under the law as they see it.

02:27
SB one categorically bans treatment when and only when it’s inconsistent with the patient’s birth sex. Tennessee says that a sweeping ban is justified to protect adolescent health, but the state mainly argues that it had no obligation to justify the law and that SB one should be upheld, so long as it’s not wholly irrational. That’s wrong. SB one regulates by drawing sex-based lines and declares that those lines are designed to encourage minors to appreciate their sex. The law restricts medical care only when provided to induce physical effects inconsistent with birth sex. Someone assigned female at birth can’t receive medication to live as a male, but someone assigned male can. If you change the individual sex, it changes the result. That’s a facial sex classification, full stop and a law like that can’t stand on bare rationality. So

Imara Jones 03:23
translation, essentially, what she’s saying is that the ban on gender affirming care passed by the legislature and signed by the governor in Tennessee, the state that has the highest number of anti trans laws, has passed the highest number of anti trans laws than any other state in the union, that that is essentially sex discrimination. Now the state, as she mentioned, argues that it wasn’t sex discrimination. They’re saying this is about regulating the safety of adolescent and adolescent care. I mean, it says differently in the law, but let’s just go with their argument for a minute. And she’s saying that is not true. And the reason why that that’s not true is because this law permits certain types of medication, the same type of medication based upon sex. So for example, if you are a boy and you want to take testosterone because you’re having late development or testosterone is low and you want to get a deeper voice, you can take that if you are a girl and you want to take it for the exact same reasons, then you can that’s a ban. And so therefore sex is the determinative factor here, and that’s why it’s not a regulation of adolescent healthcare across the board. It’s the regulation of adolescent healthcare depending on your sex, plain and simple. And it seemed to me that every time the conservative justices or the Solicitor General of Tennessee not to be confused, but the Solicitor General of the United States tried to get away from that, that argument around sex, that they were in a box of their. Own making, because it is allowing medication to proceed based upon the sex of the person receiving it, not a blanket regulation of a certain type of medication or a general ban across the board in the interest of adolescents. Now the Supreme Court and also Chase train, geo did cite examples of laws that they do think that restrict gender affirming care, but do so in a way that’s consistent with the Constitution, such as West Virginia, where if adolescents meet certain thresholds, you can still get the care. It’s just regulated. It’s not banned across the board, as it is in this case in West Virginia. And so there are examples for regulation of gender affirming care that they believe has constitutional scrutiny and others that don’t. And since their argument was very narrow in terms of what the Solicitor General of the United States and the ACLU represented by Chase stranger were arguing, it seemed as if it was really, really, really hard for the justices to go in any direction that wasn’t going to kind of tip the apple cart of things that they care about over and so we’ll just have to continue to follow whether or not that is the case. We know that there are certain conservatives out there that are experimenting with saying that this is not sex discrimination, that it’s age discrimination, and it can be looked at differently, or all of these other different things. And so we know that when they kind of float those conversations, like David French, did you know the Alliance Defending Freedom lawyer who now is a columnist at the New York Times, when they’re floating those ideas in the public as conversation, they’re actually sort of signaling and tipping to the Supreme Court ways that they might be able to, in this case, overturn gender affirming care, but I think that it’s going to be really difficult for them to do so unless they do something really, really, really dramatic, and that would just be an unbalanced mess. So one of the examples of what we just spoke about in the previous block was, how basically, could they support the Tennessee law without it impacting a whole host of other things. And so what are those types of things? Well, there’s some obvious ones, like parental rights. Does it impact parental rights? If parents want their kids to get this care, the state says that you can’t have it that is a huge violation of parental rights in the United States, and there is Empire States tall, or Kendrick Lamar distract tall, series of case law, which says that parents speak for their kids in the United States, so they could be overturning that If they try to disrupt the way that healthcare decisions are made in the United States. Are they saying that the state, in this case, gets to make all of the decisions based upon who you are? Does it impact gender affirming care for cis people depending on how they rule? These were some of the things that were coming up, and does it even impact trans adults? That was another conversation that was front and center. So if they were to try to rule in a way that would support Tennessee, it could impact all of those areas, and all of the things that I spoke about were things that were discussed and argued in front of the court. But there was one particular area that may not be obvious to you, that if they rule in a certain way, that it could begin to impact other areas of the law, and in this case it was interracial marriage and the use of pseudoscientific justifications for discrimination, and that was brought up by Justice Jackson in her discussion around loving and how this case could impact that ruling, which is what legalized interracial marriage in the United States,

08:39
and we already dispose of that kind of reasoning with our equal protection cases that looked at things like interracial marriage, where we said, even though it applies to both, it’s still making a racial classification. Even though whites can’t married marry non whites and non whites can’t marry whites in the statute, right? So both are equally disadvantaged. We said that’s not an argument for why you shouldn’t have a heightened scrutiny, or why the statute is not making a race based classification.

09:09
And that’s not the argument that we’re making. You’re not arguing that that you can discriminate and draw lines so long as you do so both against boys and against girls. We’re arguing there is no sex based line if you’re a boy and you go in to get puberty blockers, you can get the puberty blockers if you’re going to use them for precocious puberty, you cannot get the puberty blockers if you’re going to use them to transition. That is not a sex based line. That is a purpose based line. So what’s

Imara Jones 09:34
important there is that if it’s a purpose based line, like the Solicitor General of Tennessee said, then the state can essentially justify its laws much easier, essentially allowing it to discriminate, as long as they have a rational reason to do so. But if it’s sex based discrimination, then they can’t do that. And what Justice Jackson was saying there is that, you know, loving established the precedent that even though the law applied equally to black. Blacks and whites, you still had to know the race of the person in order to determine if they can marry, and that was racial discrimination. And so that precedent of saying that the defining characteristic of the person in order to implement the law is a standard for discrimination in the United States has been a basis for any number of rulings since the 1960s and that if they undo that with this ruling, then it could overturn or put in jeopardy a whole host of case law, including that around interracial marriage, that law loving also had a host of pseudoscientific distinctions and characteristics about blacks and whites, which was brushed aside that you can’t use pseudoscientific characteristics to discriminate. And if they do that in this case, then they will then be allowing that to come back. And that was just one of the examples of the box that they’re in that if they decide to uphold the States a lot, they’re going to have to do something major. And this is the example that we were pointing to in the last block. And this issue of defining characteristics and how they play a role in this case really came up as well with Justice Sotomayor questioning the Solicitor General of Tennessee on the fact that this is about sex based discrimination, pure and simple, and you can’t just allow a small group of people to be subject to the whims of the majority. You’re

11:20
licensing states to deprive grown adults of the choice of which sex to adopt your honor. I don’t think that’s a fair case. That’s what you’re telling me, because you’re saying to me, rational basis would be the review for that kind of law for adults as well,

11:40
and this Court has not hesitated to hold laws unconstitutional under rational basis review when they are rooted in unsubstantiated fears and prejudices. That’s exactly what this Court did in Cleburne, and quite an interesting way to protect the population, and to the extent I thought that, that’s why we had intermediate scrutiny when there are differences based on sex, to ensure that states were not acting on the basis of prejudice.

12:10
Well, Your Honor, of course, we our position is there is no sex based classification. But to finish the answer, that to the extent that that there, along with dealing with adults, would pass rational basis review. That just means it’s left to the democratic process, and that democracy is the best check on potentially misguided laws. So in when you’re 1% of the population, when you’re 1% of the population or less, very hard to see how the democratic process is going to protect you. Now, Sotomayor was hot in that moment, and the way that you could tell is that she was not allowing her colleague, in this case, Amy Coney Barrett, come in and say what she wanted to say. They normally defer each other, but she had a point to make, and she was going to make that point about not subjecting 1% of the population to the political whims of a hostile state legislature in this case. So there’s so much to watch in this in terms of balancing all of these particular interests, and we’ll have to watch it. But I’ll have to say that I am really impressed with sort of my yours, referencing here of statistics, and she gave us a statistical probability mess. So that was a snapshot of the things that were going on inside. But equally important in major Supreme Court cases like this is what’s happening outside. What are people saying and what when the press are going in and lawyers going in, are they seeing as they walk into the building, and I can tell you from being there that what they saw and heard really influenced the conversation on the inside. And what was particularly having an impact were people who were in support of the Tennessee law in opposition to applying the equal protection clause to trans people. What they were saying and what they were coming up with, especially those that identified as gay or lesbian, who were saying that trans people shouldn’t have equal rights, because trans isn’t a real thing. And I can tell you that from the press discussion on the inside, there were reporters who were saying, is that a real thing? Should we be covering that? And if they’re thinking that, then there are other people who are associated with the court who thought the same thing, and what did that exactly sound like, and what’s the rationale? Well, let’s hear from some tape that translash picked up of exactly what their argument is

14:32
in previous times, like in my generation, you know, you would have grown up to be gay, and now it’s like there’s this new homophobia. There’s this new thing where it’s if you’re gender nonconforming, oh, well, maybe you’re a boy, maybe you’re a girl, maybe you’re the opposite sex, instead of just letting kids grow up to be free to be you and me, as the old saying goes. Is, and it’s, I think it’s very disturbing, because it’s like the gay community, the truth are being erased, and especially lesbians. There’s so many girls who are being told that maybe they’re boys and they’re getting their breasts cut off and they’re taking hormones, they’re doing truly irreversible damage to themselves. Well, the phrase irreversible damage, of course, is from Abigail Schreier Piece of Junk Science, that book, which burst into popular culture. We talked all about it in the second season of Anti-Trans Hate Machine, and just how much damage is done, and so much damage that there’s someone who’s motivated to say that, and then also to say that with an earshot and a hold of signs that other people who are associated with the court in covering this case see, and then wonder whether or not it’s true, and believe it or not, things like that have an impact and shape the thinking of people associated with the case. And so who shows up outside of the court and what they say has a really, really, really big impact, especially on a day like the scrimental case, especially when there are so many people that say that they don’t personally know a trans person, what they’re hearing about trans people really has an impact. But luckily, there were also people outside the court who were trans people themselves and were actually able to affirm and speak up for what trans experience is. I caught Raquel Willis, who not only spoke at the rally, but also helped to organize the rally, in conjunction with the ACLU and others, about what the day meant in terms of trans people showing up and making their voice heard to actually tell people who trans people actually are. What was your favorite moment of the rally? My favorite moment of the rally was probably when Elliot page came out and spoke. Everyone was really excited for that Alana Glaser came out and spoke. So we had a lot of star quality here today. Peppermint was hosting. So I love those moments. I also love the little 32nd dance breaks, because the youth, just like, you know, turn it out. Turned it out. So there was, there’s just a lot of beautiful moments of joy and just camaraderie amongst folks. And there was this one phenomenal young speaker that I was able to just kind of watch from the side right before I went up Mila who talked about being a young trans girl, and literally, she just was like, I’m a trans girl. And it was like, just that one sentence alone was so powerful, because everyone could just feel how proud of herself that she was and is. And I think that that’s the kind of energy that we energy that we gotta keep stoking and we use right now. Well, I’m not surprised that Elliot Page got all of that love, because there are a lot of people that got Elliot Page crushes. Oh Lord, yes. Look. We have some very beautiful people. And, I mean, look, look at us. So, yeah. You know, Elliot is a dream boat for a lot of folks. But, you know, I think what is also just so beautiful about having leaders like him like peppermint, is that they aren’t afraid to put it on the line. You know, they know in and out, that they have these platforms and have a different kind of power that they can leverage to inspire us to continue to fight. And I just love that about that, and because the case was about trans kids, trans kids making their voice heard was so essential and is so essential, because this is what this case is all about. So as always, trans youth will give us a joyful mess. Thank you for being a TransLash fam subscriber and sorting through all this mess with me today, and consider giving a TransLash fam subscription to the people in your life that you love during this holiday season. If you liked the show, it would mean so much if you left a review on Apple podcast. I’ll be back in your feed in January to sort through all of the mess then, but between now and then, everyone here at TransLash hopes that you have a wonderful and restful holiday season. I’m your host. Amara Jones, this show is produced by Aubrey Callaway. Xander Adams is our senior sound engineer and contributing producer, and this episode was engineered by Lucy Little. The sound that you heard from outside of the arguments was recorded by Luca Evans, Oliver-Ash Klein oversees production as director podcast translash media. And of course, this show is made possible by translash fam subscribers like you. Thank you so much, and we’ll see you soon. You.