Dissecting M. Gessen's NYTimes op-ed commentary on the Supreme Court case: United States v. Skrmetti

The case focuses on the constitutionality of a recent Tennessee law banning the use of puberty blockers and cross-sex hormones with minors seeking to change sex.

Dec 07, 2024

I spent my professional life reading and commenting on student papers, faculty grant proposals, and student and faculty papers submitted for publication in scientific journals. Now that I’m retired, even when I read news articles I’m still inclined to annotate them — which explains the style of a lot of my postings here. My wife is pleased I have this outlet for my comments, thereby saving her (somewhat) from having to listen to my analyses (rants?) related to whatever has caught my attention recently. Which brings me to — comments on M. Gessen’s Dec. 6 op-ed in the N.Y. Times discussing the Supreme Court’s Dec. 4 hearing of a challenge to a Tennessee law banning the use of puberty blockers and cross-sex hormones with minors seeking to change sex (the case of U.S. vs Skrmetti).

First though — just a bit about Gessen. Gessen’s first name is “Masha”, but Gessen seems to have stopped using it, having replaced it with the initial “M”. Gessen self-identifies as trans and non-binary. I’m not totally sure exactly what that means, but it is relevant to the extent that it is information that provides context for Gessen’s perspective on the Skrmetti case. Gessen uses the pronouns “they, them”. I always find usage of “they” and ”them” to refer to a single person confusing, so in my comments on Gessen’s article, I’ll simply avoid pronoun use when referring to Gessen.

OK — as usual, the copied text from the op-ed is in italics and my comments are in standard font. The entire op-ed is copied (and commented on) below.

Opinion

M. Gessen

The Supreme Court Just Showed Us What Contempt for Expertise Looks Like

Dec. 6, 2024

Shortly before allowing reporters into the main chamber of the Supreme Court for oral arguments in United States v. Skrmetti, a court employee asked us all if we needed to use a bathroom. The men’s room was right next door, the staff member said, and the women’s room down the hall.

“Where should nonbinary people go?” one of the reporters asked.

An uncomfortable back-and-forth followed. The staff person seemed not to understand the question. In the end, there was no answer. It just didn’t seem to compute.

The exchange was more than casually relevant to the case the court heard that day.

Gessen does not say exactly which other reporter asked the bathroom question, but by starting the op-ed with a description of this event, Gessen has made clear that Gessen thinks the question was a reasonable one in this context. It wasn’t. The staff member was simply trying to be helpful, was not involved in setting bathroom use policy, and said nothing to the other reporter, or to Gessen, regarding which bathroom the staff member thought either the other reporter or Gessen should use. There was no good reason for the staff member to have been harassed by being subjected to “An uncomfortable back and forth” regarding bathroom use, and raising the issue in that context was simply obnoxious.

There are a number of good reasons why most females prefer to use public bathrooms that are not frequented by males. Safety. Modesty. And … hygiene. Have you ever SEEN (or smelled) how much dirtier male-usage public bathrooms are than female-usage-only bathrooms? And so — in many public bathroom settings, there are separate male and females rooms. Surely Gessen, and the other reporter, understand all of this. So what is it that they (Gessen and the other reporter) think should be provided in public places? I actually agree that it might make sense to add “single use” bathrooms open to anyone in any place where there are now male and female bathrooms. Fine. If that is what you believe should be provided, petition airport authorities and other transport authorities to enact that kind of policy. Write to your mayor or governor to encourage enactment of such a policy in your city and state governmental buildings. But haranguing a staff member who was just doing their job and trying to be helpful? Not fine. Not fine at all.

At issue in United States v. Skrmetti is a Tennessee law that bans treatments such as the use of puberty blockers and hormone therapy for transgender minors. The Biden administration is arguing, among other things, that trans people constitute a “quasi-suspect class” — in layperson’s terms, a group of people who have been subjected to systematic discrimination.

During the hearing, Justice Amy Coney Barrett asked the U.S. solicitor general, Elizabeth Prelogar, who argued the case for the federal government, for examples of laws that have historically discriminated against trans people. Prelogar couldn’t think of any.

Chase Strangio of the American Civil Liberties Union, who addressed the justices after Prelogar, cited two examples: a prohibition on trans people serving in the military and laws (some still on the books) that effectively banned cross-dressing in at least 32 states. Barrett prodded Strangio for more, but he couldn’t think of more examples that target trans people specifically.

It would have been helpful if Gessen had explained WHY a decision regarding whether to designate trans people as a “quasi suspect class” would be quite important for this case. The reason is that, when assessing the constitutionality of a law, different levels of scrutiny are to be applied to laws that involve discrimination against members of a “suspect class” vs a “quasi-suspect class” vs a group that does not qualify for either designation. Suspect classification refers to a class of individuals who have been historically subject to discrimination. There are four generally agreed-upon suspect class categories: race, religion, national origin, and alienage. Sex is a quasi-suspect class, which means that laws that discriminate on the basis of race require greater scrutiny — if they are to be declared constitutional — than would be the case with laws or policies that discriminate on the basis of sex. But because “trans status” has not been judged to be even a “quasi suspect class”, a law that discriminates on the basis of trans status may be judged constitutional according to more lenient criteria that would be the case for laws discriminating on the basis of sex. It is worth noting also that although the ACLU was arguing for the designation of trans persons as a quasi suspect class, the U.S. government did NOT include that claim as part of their argument against the constitutionality of the Tennessee law.

Trans and gender-nonconforming people have existed as long as humans have used gender to organize themselves — think Joan of Arc; think Yentl; think many, many real and fictional people in-between — but in Western culture, it’s only in the last half-century that trans people have asserted ourselves as a group.

In this paragraph Gessen slides smoothly, and cleverly, from referencing women who have lived a gender-nonconforming life to talking about trans people. BUT — being gender non-conforming and being trans are not the same thing. There is no reason to think Joan of Arc was trans. Joan of Arc was a woman who did not live in a manner typical of women of her time. That does not make her trans. Yentl was a fictional female who began to live in a male role to achieve a goal; after her father dies, Yentl decides to disguise herself as a man to study Talmudic law at a Yeshiva. Again, that does not mean Yentl was a trans-man. Yentl was, in the story, unquestionably female (and heterosexual). And of course, Yentl was not a real person — making her an odd individual for Gessen to have referenced here.

It was only when we became more visible that the onslaught of new discriminatory laws began.

Here, Gessen blithely makes reference to “new discriminatory laws” — and in doing so, is guilty of using the classic rhetorical fallacy “begging the question” (assuming to be true that which is actually at issue in a discussion). Gessen simply asserts that the Tennessee law, and other like it, discriminate against trans persons. However, it seems (based on the questions posed by the Supreme Court judges in the Skrmetti case) that a majority of the current members of the Supreme Court do not agree with Gessen’s assertion that these laws discriminate against trans persons.

Tennessee passed its law, known as S.B.1, in March 2023. The American Civil Liberties Union and other rights groups sued on behalf of three Tennessee adolescents — two trans boys and one trans girl — and their families and one doctor. The kids had been benefiting from gender-affirming care; each had reportedly gained confidence, overcome distress and become much happier. Then the state banned their treatment.

The A.C.L.U.’s appeal to the Supreme Court (after winning a preliminary injunction that was then overturned when Tennessee appealed) argued that the law violated both the equal protection clause of the Constitution, by discriminating against trans minors on the basis of sex, and due process, by overriding the decisions parents make about their children’s medical care. The Biden administration had joined on the side of the plaintiffs.

But the court agreed to hear the case on only the equal protection grounds, setting the due-process argument aside. So by the time the case got to the Supreme Court, the stories of the people who originally sued Tennessee had become all but irrelevant to the proceedings. The opening arguments did not make more than a passing mention of the actual adolescents and their families whose medical decisions Tennessee decided to override.

It is interesting that, as Gessen notes, the three Tennessee children whose situations provided the basis for a challenge to the Tennessee law were hardly discussed at all during the Skrmetti hearing. But I’m certain that Gessen knows full well why that was the case; a decision about the CONSTITUTIONALITY of the law is based on factors (e.g., Does the law discriminate on the basis of sex? Is trans status mutable? Does the law protect some children from harm? Does the state have the right to ban medical procedures that are supported by parents?) that are independent of anything specific about those three children (except for the facts that they consider themselves trans and their parents support the use of the medical treatments banned by the Tennessee law).

Why, then, does Gessen even mention these children in the column? Fairly obviously, Gessen does that because it is hard not to be sympathetic to their situations, and while it may be reasonable to question whether they have really benefitted from their medical treatments and would benefit from continuing those treatments, the children and their families certainly believe the treatments to be beneficial. But that does not mean the court should have discussed the specifics of their situations more extensively, and Gessen knows why that’s the case.

The mental gymnastics were breathtaking at times, especially when Prelogar [the U.S. government lawyer], who speaks with the speed of a champion debater, fielded questions from the justices. But the stakes for actual trans people — the existential nature of protection from discrimination — seemed obscured.

The only moments of obvious moral searching came when Justice Ketanji Brown Jackson said she was dismayed by the similarities between the case before the court and Loving v. Virginia, the 1967 case in which the court ruled that laws banning interracial marriage violated the Constitution. Back then, the plaintiffs argued that, if a white woman could marry a white man and a Black woman could not, then this constituted discrimination on the basis of race. Jackson noted that in that case, too, proponents of the discriminatory law cited what they considered scientific evidence of the harm of interracial marriage.

Gessen was apparently impressed by Jackson’s attempt to draw a parallel between the Tennessee law and laws that banned inter-racial marriage. I was not.

Jackson’s “argument” here reflects use of another classic rhetorical device; claim that the situation under discussion directly parallels a different situation about which there is less controversy or question. The problem here, of course, is that the parallel between the two situations is strained — to say the least. Puberty blockers and cross sex hormones and surgical interventions (e.g., castration, mastectomy) produce harms that must be offset by clear evidence of benefits for the treatments to be considered ethical according to any kind of harms/benefits analysis. There were no similar harms to the individuals involved associated with inter-racial marriage. As Nellie Bowles noted (in her always humorous and insightful TGIF column in the Free Press):

“Justice Ketanji Brown Jackson compared banning medical transitions for minors to bans on interracial marriage. I’m no legal scholar, but it honestly must be fun for your job to just come up with crazy analogies and throw them back at terrified lawyers. I’m just not sure I see the connection she’s making, but I also sometimes throw spaghetti at the wall when nothing’s working. It’s my “why not” business strategy. It’s the “you know what else was illegal once? Interracial marriage” approach. “

Exactly!

Tennessee also claims that science is on its side, and that is perhaps the most disturbing aspect of this case. Dozens of mainstream medical societies, including the leading associations of pediatricians, filed amici briefs arguing against S.B.1. Apparently trying to find their footing, conservative justices asked about new regulations in the United Kingdom and Sweden. But those regulations were written by medical — not legislative — authorities, and they come nowhere near a total ban.

Actually — the new regulations in several European countries DO come “near to a total ban” — by banning the treatments except for the most extreme of cases and following clear evidence of the failure of all other forms of treatment. So there’s that. In addition, Gessen conveniently does not mention that the medical associations in the U.S. are out of step with the consensus of medical authorities in those European countries, and it is really unclear what Gessen is arguing when Gessen states that “But those regulations were written by medical — no legislative — authorities”. Uh — I thought Gessen was arguing that the regulations SHOULD be written by medical authorities — and here Gessen is referencing those authorities setting policies in other countries that come very close to doing what the Tennessee law does.

Every time they posed questions about specific treatments, the justices seemed to get lost in the medical weeds. Which is forgivable: They are justices, not doctors. And they probably shouldn’t be trying to make a ruling based on medical evidence.

Again — Gessen is fully aware that the issues in this case relate more to questions regarding whether trans persons qualify as a “quasi-suspect class” and whether the Tennessee law discriminates on the basis of sex, rather than questions about the exact balance of harms and benefits associated with the use of these treatments. And if Gessen doesn’t feel lost in the weeds when thinking about the scientific evidence related to the harms and benefits of the treatments, it can only be because Gessen never acknowledges the evidence of any harms at all.

The ease with which legislators overrule doctors, and the relatively small amount of attention this overreach received during the Supreme Court hearing, are symptoms of our times. Just in the last few years, more than half the states have passed legislation that limits access to gender-affirming care. Many of the laws are at least as restrictive as S.B.1 — despite the medical profession’s opposition to total bans. Defying medical consensus is becoming something of a national pastime. Childhood vaccination rates continue their precipitous decline. Robert F. Kennedy Jr., vaccine skeptic and raw-milk proponent, is our secretary of health and human services designee.

Rejection of genuine expertise is both a precondition and a function of autocracy. Joseph Stalin’s regime outlawed genetics as “pseudoscience,” while he himself was declared an expert in all fields, from linguistics to biology.

Wow! So, according to Gessen, Tennessee banning certain controversial medical treatments with children is akin to vaccine skepticism AND Stalin’s outlawing of the study of genetics. What a leap of logic! What Gessen is (rather cleverly) doing here is arguing against the Tennessee law not by discussing the actual evidence regarding the harms and benefits of these treatments but instead by trying to draw a parallel between the law and OTHER issues — issues that Gessen (quite correctly) believes are more easily adjudicated by reference to scientific evidence.

Gessen also — again — “begs the question” by simply asserting that all of those with “genuine expertise” support the use of the forms of treatment banned by the Tennessee law. Gessen’s wrong. There are plenty of professionals with “genuine expertise” who disagree with Gessen’s conclusions regarding the harms and benefits of the use of cross-sex hormones and other elements of “gender affirming care”.

Contempt for expertise is not the only autocratic force at work in the case of S.B.1 and in similar laws. Another is the government’s intrusion into private lives — in this case, the shameless assumption that legislators can make decisions that rightfully belong with families and their physicians. The Federal District Court cited this issue as one of its reasons for overturning S.B.1. Parents have a “fundamental right to direct the medical care of their children,” the court wrote. That, however, is the part of the case the Supreme Court decided not even to consider.

Here, Gessen makes a good point. We should all have some degree of discomfort regarding the government overruling decisions by parents about the medical care of their children. This is not the only kind of situation where this occurs, of course. For example, most states mandate measles vaccinations as a condition of a child attending public school, even if the parents do not want their children vaccinated. And parents cannot prevent their children from receiving blood transfusions if the transfusion is judged to be necessary to save the child’s life. Still — I agree with Gessen that in most contexts, it would be better for decisions about the medical care of children to be left to parents and physicians rather than the government — and it’s surprising that this was not an issue in the Skrmetti case at the Supreme Court level.

A third force is the growing intolerance of minorities and, in particular, people who dare to challenge tradition. It’s a cliché to point out that the totalitarian governments of the 20th century jailed and killed freethinkers and outliers of every kind. But it’s a cliché that seems to need repeating, since contemporary autocrats do the same thing — and many of them start by targeting L.G.B.T.Q. people.

What Gessen is arguing here is that the Tennessee law (banning the use of particular medical treatments that produce harms but whose benefits remain unproven) is qualitatively similar to government policies that, at other times in other locations, have resulted in jailing and killing “free thinkers and outliers of every kind”. This is “slippery slope” arguing gone completely berserk. The paragraph even includes subtle (actually — not so subtle) shades of reference to the holocaust (what else do people think of when reading reference to “totalitarian governments of the 20th century that jailed and killed outliers of every kind”?). That is a slippery slope of Alpine proportions. But at least Gessen acknowledges that the argument here is hackneyed to such a degree that it has become a cliché.

Some observers see reason to hope that Barrett and Neil Gorsuch will join the three liberal justices and the court will overturn S.B.1 as discriminatory. I do not share this optimism. I expect the court to uphold the Tennessee law, which will have immediate, devastating consequences for trans kids and their families.

I’ll simply note that there ARE reasonable people, with expertise in this area, who believe that it’s actually the treatments that are banned by the Tennessee law that have the greater “devastating consequences for trans kids and their families” (see here, here, and here, for just a few examples). Just because Gessen makes the claim (without reference to evidence) that the Tennessee law will have “immediate, devastating consequences for trans kids and their families” does not make it necessarily true.

Expect the bans on gender-affirming care for minors to spread. Already, some states are trying to restrict gender-affirming care for adults. Outright bans will follow. We trans people have only recently become a visible minority with any rights claims at all. Some people, like perhaps that Supreme Court staffer, have never even heard of nonbinary people or gender-neutral bathrooms. Reversing our gains won’t take long.

But it won’t stop with trans care. Governments at different levels will be emboldened to meddle in what should be private, family decisions. In and out of government, people who know what they are talking about will be supplanted by people who perform their loyalty most loudly. Quackery will continue its ascent; expert consensus, not only in medicine but in all the disciplines that enable us to know and navigate the world, will be marginalized. Consider S.B.1, the arguments in its defense — and the largely vacuous discussion of them in the Supreme Court — to be a preview.

Oh please. Of course the staffer has heard of gender neutral bathrooms. In fact, I’m sure the staffer has one or more such bathrooms in the staffer’s home, and there are lots of restaurants and coffee shops with gender neutral bathrooms. That statement by Gessen is just silly. Also note that while Gessen expects these bans to spread, at no point in this column does Gessen reference evidence that these are, in their totality, beneficial treatments, and Gessen fully and conveniently ignores the evidence of their harms.

Of course, I hope Gessen is wrong in Gessen’s apocalyptical prediction that a finding that Tennessee law SB1 is constitutional will represent the beginning of the end of all freedoms in the U.S. as we know them. That claim represents an Everest-like slippery slope argument — and I think Gessen’s wrong. It’s too bad Gessen chose to rely on so many rhetorical devices like this in this column, rather than more directly arguing (with reference to evidence) the case for the harms that he thinks SB1 will produce — but making an extreme slippery slope argument seems to have been the whole point of the column. I guess when you can’t make a strong evidence-based argument, then claiming that the policy you oppose will lead inexorably to orders of magnitude worse outcomes in other ways might be the only rhetorical ammunition you have left.