Transgender movement shows weakness

Yesterday the transgender movement – the T in the Alphabet Soup – laid its case before the United States Supreme Court. They were trying to overturn a law Tennessee passed after discovering a Moreauan transgender clinic in their very capital city. But at least two Justices exposed glaring weaknesses in their case, and destroyed blithe assurances they had been making to the “Cis World” that the surgical mutilations and hormonal poisonings they advocated did no lasting harm and typically saved lives. Most legal analysts expect the Moderate Bloc to side with the Originalist Bloc and uphold the Tennessee law. But the drama outside the Court seems to show that the transgender advocates have overplayed their hand. Have they even managed to alienate the rest of the Alphabet Soup movement?

The transgender transition case

The case at hand is titled United States v. Jonathan Skrmetti, Attorney General and Recorder for Tennessee, et al. Yesterday that case came before the Court for oral argument. Links are available to the docket (23-477), the question presented, and transcript and recording of the two-and-a-half-hour argument session.

At issue is:

Tennessee Senate Bill 1 (SBl), which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” Tenn. Code Ann. § 68-33-103(a)(1).

The Biden administration, and an original plaintiff-appellant, argue that this law violates the Equal Protection Clause. Amendment XIV reads in relevant part:

No State shall … deny to any person within its jurisdiction the equal protection of the laws. Amendment XIV, Section 1

The petitioners essentially state that one should be free to receive any kind of medication, or contract for any surgical procedure, that a doctor is willing to prescribe or perform, without regard to any sex-specific side effect or contraindication of said medication or procedure. To forbid minors by law to take medications “inconsistent with the minor’s sex” is to “draw [a] sex-based line.” That, says the federal government, constitutes unconstitutional discrimination on the basis of sex.

This law came about after Matt Walsh (What is a Woman?) discovered that the Vanderbilt University Medical Center had been running a “transgender clinic” and routinely “transitioning” children. When Tennessee legislators – and many of their constituents – heard about this, they reacted in outrage. The new law is the tangible expression of that outrage.

Case history

As soon as Gov. Bill Lee (R-Tenn.) signed SB1 into law, the American Civil Liberties Union, on behalf of patient L.W. and his parents, sued in federal court. The original complaint makes clear that the birth sex of L.W. is male. Whatever mixed signals L.W.’s parents gave him, that caused him to develop psychosomatic nausea at the sound of his own voice, is not part of any public record. The complaint reads in relevant part:

Growing up, L.W. felt uncomfortable in her body. She remembers feeling like she was drowning and trapped in the wrong body. She avoided changing clothes in front of anyone, tried to hide her body behind baggy clothing, and was not comfortable hugging her family.

Before she understood what she was feeling, L.W. experienced significant stress and anxiety. The discomfort of using the boys’ restroom at school would cause her to avoid using the restroom altogether and led to her developing urinary tract infections. She had trouble focusing at school. She could not connect with her friends. Her anxiety was constant. From the complaint, L. W. v. Skrmelli, case no. 3:23-cv-00376

This is a typical transgender identification story. No one – ever – checks such stories; everyone assumes truthfulness, as to presentation and event sequence. The complaint contains a photograph that plainly shows a teen-age boy’s face.

L.W. began a course of hormonal poisoning to shrill-ify his voice to a woman’s voice. (Whether he has undergone the usual surgical mutilations for changing a boy to the likeness of a girl, is unclear.) The new law cut that treatment short, so the parents, with the ACLU to back them, sued to restart it. L.W. v. Skrmetti, case no. 3:23-cv-00376, filed April 20, 2023.

These plaintiffs – and several others who joined the case – moved for, and got, a preliminary injunction in June 2023. Judge Eli Richardon of the U.S. District Court for the Middle District of Tennessee is, ironically, a Trump appointee. Nevertheless, in his opinion, he seems to have deferred to the doctors, who cite such dubious authorities as the World Health Organization (WHO) and the World Professional Association for Transgender Health (WPATH).

Appeals

The State of Tennessee appealed that injunction at once.L.W. v. Jonathan Skrmetti, 23-5600. In the appeals process, the Biden administration intervened at that stage. The Sixth Circuit Court of Appeals, after receiving a slew of briefs, held oral argument in September 2023. The opinion and judgment are available from the Supreme Court, within a lengthy Appendix to the federal government’s review petition.

The case came before Chief Judge Jeffrey Sutton (a Bush Junior appointee) and Judges Amul Thaper (Trump appointee) and Helene White (a Bush appointee and senior judge).

On September 28, 2023, the Sixth Circuit reversed the injunction and remanded the case to Judge Richardson’s court. In their opinion the court held, 2-1, that the plaintiffs were not likely to prevail on the merits. Furthermore, they were asking the courts to intervene in a State legislature’s decision on medical regulation. Judges Sutton and Thaper said: No. In dissent, Helene White also had “drunk the Koo-Aid®” that WHO and WPATH offer.

On November 1, 2023, the ACLU, for L.W.’s parents, filed a review petition with the Supreme Court. (Docket No. 23-466.) But on November 8, the Biden administration filed its own petition. The patient’s petition is still active, but has seen no action since six distributions for conference in May and June.

Why the Court didn’t consolidate the two petitions, is unclear. But Judge Richardson “stayed” the case in his court and has administratively closed it. The federal case came to oral argument yesterday.

Transgender is a modern trans-species

The case documents, and the argument transcript, are surreal. Why no one has dismissed WPATH as an inherently biased and self-serving organization, is definitely not clear.

When Jules Verne wrote his novel The Island of Doctor Moreau, he could have represented the title character as the President of a World Professional Association for Trans-species Health. For this is what Doctor Moreau did: transitioned wild animals into the likeness of men. To add a dimension of horror to his writing, Verne depicted Moreau as performing his veterinary surgery without anesthesia. Thus the transformed animals referred to his operating room as “The House of Pain.”

Moreau sought to vest in his subject the power of speech. He succeeded, and taught his subjects an iron Law. The typical illustration is this dialog between Moreau and his subjects’ chief spokes-“man”, the “Sayer of the Law.”

Moreau: What is the Law?

Sayer of the Law: Not to eat meat, that is the Law. For are we not men? Jules Verne, The Island of Doctor Moreau

The original Moreau was a cruel man – so cruel that his subjects, eventually revolting, subjected him to his own treatment. Modern Doctors Moreau are not cruel, but subtle – confidence tricksters. They promise freedom from anxiety, to those who subject themselves willingly to the surgical mutilation and hormonal poisoning that are their stock-in-trade.

Chief Judge Sutton traced the development of this mis-called “standard of care” back to the Sixties and Seventies. That’s when The Johns Hopkins Hospital began the first experiments in “sexual reassignment.” Tellingly, that era also saw the deletion, from the list of mental disorders, of homosexuality.

At the Oral Argument

Solicitor General Elizabeth B. Prelogar presented the federal government’s case. To present L.W.’s case, the ACLU sent its own Sayer of the Law: Chase Strangio, a woman who has undergone some form of transition to the likeness of a man.

Prelogar couched her argument in terms of personal choice:

It doesn’t matter what parents decide is best for their children. It doesn’t matter what patients would choose for themselves. And it doesn’t matter if doctors believe this treatment is essential for individual patients.

And her objection?

SB1 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’s sex, it changes the result. That’s a facial sex classification, full stop, and a law like that can’t stand on bare rationality. To be clear, states have leeway to regulate gender-affirming care, but, here, Tennessee made no attempt to tailor its law to its stated health concerns.

Rather than impose measured guardrails, SB1 bans the care outright no matter how critical it is for an individual patient, and that approach is a stark departure from the State’s regulation of pediatric care in all other contexts. SB1 leaves the same medications and many others entirely unrestricted when used for any other purpose, even when those uses present similar risks. Elizabeth B. Prelogar, Solicitor General of the United States

The Sayer of the Law, when it was her turn to speak, said something similar – up to a point. But then she defied logic:

Tennessee claims the sex-based line-drawing is justified to protect children. But SB1 has taken away the only treatment that relieved years of suffering for each of the adolescent plaintiffs. And, critically, Tennessee’s arguments that SB1 is sex-neutral would apply if the State banned this care for adults too. Chase B. Strangio, Attorney-at-law

What? She argues that Tennessee has made a sex-based prohibition, and then says the remedy would be to ban the treatment for adult? Minor v. adult is an age classification. As Justice Clarence Thomas pointed out to General Prelogar. (To which the Sayer of the Law didn’t pay attention.)

The Sayer of the Law is also on record as saying a transgender knows as young as two years old that he or she is born into the wrong body. But she didn’t say that at oral argument.

Note: Chase Strangio, on the recording, clearly speaks with a woman’s voice. Besides that, CNAV strictly observes a policy of referring to any person by birth sex. CNAV will not cater to delusion.

In opposition, J. Matthew Rice, Tennessee’s Solicitor General, argued for common sense.

Tennessee lawmakers enacted SB1 to protect minors from risky, unproven medical interventions. The law imposes an across-the-board rule that allows the use of drugs and surgeries for some medical purposes but not for others. Its application turns entirely on medical purpose, not a patient’s sex. That is not sex discrimination.

The challengers try to make the law seem sex-based this morning by using terms like “masculinizing” and “feminizing.” But their arguments conflate fundamentally different treatments. Just as using morphine to manage pain differs from using it to assist suicide, using hormones and puberty blockers to address a physical condition is far different from using it to address psychological distress associated with one’s body. J. Matthew Rice, SOlicitor General of Tennessee

What the Justices said

Clarence Thomas, as noted, reminded petitioners’ counsel that the law was a simple age classification, not sexual. Justice Neil Gorsuch asked no questions, and made no comment. American Briefing sounded an alarm – because Gorsuch has authored an opinion saying Alphabet Soupers deserve protection against discrimination in employment.

Justice Samuel A. Alito dealt the most telling blow against the petitioners. He reminded them of the Cass Report, that says transgender transition does not make its subjects less likely to commit or attempt suicide. Tellingly, neither Prelogar nor Strangio tried to dispute that. Leif Le Mahieu of The Daily Wire noticed those two admitting that “transitioners” often regret taking that step. And also that “transitioners” lose fertility. Chloe Cole, in a Daily Wire interview, expressed her regret at her own “transition,” and poured contempt on the petitions.

The Moderates appear ready to dismiss this case for lack of subject-matter jurisdiction. Neither Chief Justice John Roberts nor Justice Brett Kavanaugh are in any mood to see anyone drag medical-standard disputes into the federal courts. Kavanaugh especially pressed petitioners’ counsel hard on the side effects of transition “treatment.” Justice Amy Coney Barrett asked where was the discrimination, if the new law forbids minors of either sex to take this treatment?

Incredible arguments

The Liberal Bloc set new lows in their questioning. At one point, Justice Sonia Sotomayor appeared to make light of the risks of hormonal poisoning.

Every medical treatment has a risk, even taking aspirin. There’s always going to be a percentage of the population under any medical treatment that’s going to suffer a harm. Justice Sonia Sotomayor

Except: those hormones present far greater risks, to far more patients who take them, than does aspirin. But her next point was more absurd:

So the question in my mind is not do policymakers decide whether one person’s life is more valuable than the millions of others who get relief from this treatment. The question is: Can you stop one sex from the other – one person of one sex from another sex from receiving that benefit? So, if the medical condition is unwanted hair by a nine-year-old boy who can receive estrogen for that because, at nine years old, if he has hair, he gets laughed at and picked on and his puberty is coming in too early, but a girl who has unwanted hair [or] unwanted breasts, or a boy at that age can get that drug, but the other can’t, that’s the sex-based difference. It’s not the – the medical condition is the same. Justice Sonia Sotomayor

The medical condition of precocious puberty is not the same as “gender dysphoria,” as common sense dictates. Mr. Rice tried to point that out, and Sotomayor doubled down on the point. Michael Schwarz at The Western Journal noted that several conservatives called for her removal from the bench after that.

Justice Ketanji Brown Jackson made an even more absurd claim. She repeatedly compared transgender “treatment” to interracial marriage, citing the case of Loving v. Virginia. She, like the Sayer of the Law, blurred the distinction between minor and adult by saying so.

Some interesting drama took place outside the Supreme Courthouse. Elizabeth Troutman Mitchell of The Daily Signal canvassed a few protesters and counter-protesters. One parent actually said her son “knew since birth” that he should be a she. But Rich Guggenheim, legislative director for “Gays Against Groomers” showed a fracture point in the Alphabet Soup coalition. He says gender dysphoria is temporary, and resolves as homosexuality. Therefore, transgender transitioning is like “conversion therapy.” CNAV doubts the premise – but wonders how many parents, after their children confront them with their gender confusion, think the “trans life” is superior to homosexuality. But why not confront the issues that created the confusion?

The weakness of the transgender case

In a separate commentary, Leif Le Mahieu predicted the Supreme Court will vote, 6-3, to affirm the Sixth Circuit. Technically the various lower-court cases in that Circuit (Tennessee and Kentucky) wouldn’t end there. But the Court could opine that the disputes are about standards of medical care, and legislatures’ powers to define them. As such they do not belong in the federal “Article III” courts.

CNAV would certainly agree. The Originalists simply do not grant the premise of transgender treatment. The Moderates, for their part, do not want the federal courts to waste their time on such cases. That leaves the Liberals, who continue to push an agenda that, more often than not, even the Moderates cannot accept. (And in the case of Justice Elena Kagan, this agenda could be self-serving. She is, after all, Lesbian. But apparently she didn’t think of the same angle Rich Guggenheim did.)

Still, the oral argument – indeed all the arguments in this case – strike CNAV as surreal. The advocates for the Doctors Moreau and their subjects argued “decades of practice,” as if time did sanction all atrocities. Indeed here is what CNAV got out of some of the colloquies at oral argument:

Justice Kagan: What is the Law?

Chase Strangio, a/k/a Sayer of the Law: To shift gender at will, that is the Law, for are we not malleable?

Since when is letting boys be boys and girls, girls, a wrong, invidiously discriminatory act? Since Doctor Moreau became President of the One-world Medical Association, that’s when. We will know when this madness is over, only when the Doctors Moreau answer for their confidence tricks, and anti-therapeutic harms.