A Legal Gamble
It wasn't inevitable. The Supreme Court case turned on a particular argument: The plaintiffs, including three young Tennesseeans, said that when the state stopped them from taking these medications, it violated their constitutional rights. But the case was a legal and political gamble. It was rooted in uncertain science and contested ideas about sex and gender that most voters didn't grasp or support, Nicholas Confessore reports today in The Times Magazine.
The Biden administration, the A.C.L.U. and L.G.B.T.Q. groups threw their weight behind the case, United States v. Skrmetti. It was 'one of the biggest mistakes in the history of trans activism,' Brianna Wu, a trans woman who serves on the board of Rebellion PAC, a Democratic political-action committee, told Nick. In today's newsletter, I asked him to explain why.
This case is the legal culmination of a larger cultural movement. What is that?
Many L.G.B.T.Q. activists believe that gender identity should supplant older understandings of biological sex in the public sphere. In their view, one that emerged in recent decades from academia and left-wing political circles, people have the right to determine their own gender. And that determination should guide what appears on your driver's license, what bathroom you use, what sports team you join. That goes for children, too.
When did that idea take hold?
Efforts to implement these concepts as federal policy took shape during the Obama administration. Next, in 2020, the Supreme Court ruled that employees could not be fired for being gay or transgender. Activists believed that gave them a firmer legal basis to seek expanded protections for gender identity. The Biden administration instructed federal agencies to interpret old civil rights laws against sex discrimination to include the newer concept of gender identity.
Then came the backlash. I remember an ad in the closing days of the 2024 presidential campaign that said Kamala Harris was 'for they/them' and that Donald Trump was 'for you.'
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