On Wednesday I will present oral argument before the Supreme Court in United States v. Skrmetti, a challenge to Tennessee’s ban on gender-affirming care for transgender adolescents.
I, along with my colleagues at the American Civil Liberties Union and other co-counsel, represent three transgender adolescents, their parents and a Tennessee doctor who is barred from treating her transgender patients under the age of 18 with the hormone therapy she is permitted to prescribe for purposes other than to treat gender dysphoria. In Tennessee, doctors can prescribe puberty-blocking medication and hormone therapy for many medical reasons. Under the Tennessee law that is now being challenged before the Supreme Court, they are barred from doing so to allow an adolescent to identify, live or appear in a way inconsistent with the person’s sex assigned at birth.
The question before the court is whether a law that prohibits such medical treatment is discriminatory under the Equal Protection Clause of the 14th Amendment. Our position, and the position of the United States (at least until Jan. 20), is that it does.
My presence at the Supreme Court as a transgender lawyer will have been possible because I have had access to the very medical treatment at the center of the case. Though some doubt the lifesaving properties of this care, I know them personally. And so do my clients.
Though the question before the court is a relatively narrow one, the stakes are high, particularly as Donald Trump takes office in the wake of a presidential campaign in which transgender people and our health care played an outsize rhetorical role. If there is to be a judicial check on the incoming president’s efforts to federally ban health care for transgender minors and restrict it for transgender adults — as he has promised to do — this case provides a critical vehicle.
In some sense, I am speaking not only to the nine justices who will decide this case but also to a country confused, skeptical and unnecessarily fearful of trans health care.
Unlike the young people I represent, I grew up at a time when I had no information about transgender people. The first transgender man that I remember learning about was Brandon Teena, a 21-year-old from Nebraska who was raped and murdered in 1993. (That hate crime became the center of the 1999 film “Boys Don’t Cry.”) I was 11 when Mr. Teena was murdered, and the precarity of his life haunted my adolescence and young adulthood. I could not comprehend what a future might look like as I grappled with my own identity; it seemed like there would be no future at all.
Nearly two decades ago, when I was in my early 20s, I finally came out as transgender in what felt like a much more accepting world than that of my childhood. Despite feeling more hopeful, I was still confronted by many legal and cultural barriers: Transgender people were legally at the margins, marriage for same-sex couples was banned almost everywhere, and my goal of being an attorney representing transgender people in court felt hindered by my fear that I would never be seen as a legitimate courtroom advocate.
That fear was reinforced as I entered the legal profession. In Boston in 2007, one of my law school professors at Northeastern told our class that we needed to abide by traditional gender norms in court. She instructed that women should wear skirts to appear before juries, and after a presentation in class she told me that I was too “soft-spoken” to be seen as an effective male advocate. Outside class, I found my appearance was regularly the subject of mockery. During an internship at a public defender’s office in New York City, some court officers and judges referred to me as “Doogie Howser” and asked my supervisors if it was take your kid to work day. I was perceived as too boyish to be either a woman or an adult man. After one job interview, I later learned, staff members questioned whether I would be “taken seriously” in court. Fearing my gender would be a distraction and that my future clients would pay the price, I stayed away from the courtroom for years after graduation.
That self-doubt ultimately waned because I had access to medical treatment to affirm my gender. I found peace in my body, which allowed me to find peace in the world. My only regret was how long it took for me to get that medical care and how many years I suffered without it.
For much of my career, the cases I litigated did not touch on health care for adolescents. There were fights to end bans on marriage equality, to protect trans students in school, to increase access to identification, to protect people in prison and to stop Mr. Trump’s ban on trans people in the military. Then, in 2021, a single law categorically banning any medical treatment related to gender transition for minors passed in Arkansas despite then-Gov. Asa Hutchinson’s veto. There was a similar law passed in 2022 in Alabama, and then the floodgates opened. Now at least two dozen states ban medical care when it is prescribed to treat adolescents with gender dysphoria. With the new administration coming, fears of federal bans on this care are no longer far-fetched.
When I enter the courtroom this week, my job is to explain why it is unconstitutional to single out medications for prohibition only when they are used to treat transgender adolescents with gender dysphoria. That argument hinges on the fact that by banning testosterone for someone assigned female at birth but not applying that same restriction to someone assigned male at birth, Tennessee treats people differently based on sex.
The reasons cisgender and transgender people receive hormone therapy are often the same. A cisgender boy who is a “late bloomer” might receive testosterone so that he can undergo a typical male puberty alongside his peers. A transgender boy receives testosterone for the same reason. The difference between them is simply the sex they were assigned at birth and whether undergoing male puberty conforms to our expectations of what someone with that sex at birth should do.
This case has implications far beyond the courtroom. Will our sex assigned at birth dictate how we can live and identify? Must biology be destiny? Or will the court see that this argument over health care for transgender people is the next phase in a long struggle to shed ourselves of constraining sex stereotypes? That has been a central part of my journey through law and life — both seeing myself and helping others see me beyond the limiting expectations that were assigned to me at birth.
This week, I will not just be presenting legal arguments to the justices. I will also be embodying them.
https://www.nytimes.com/2024/12/03/...unlocked_article_code=1.ek4.utrT.3LmRZARRANUO (Archive)
