The Supreme Court Just Showed Us What Contempt for Expertise Looks Like
M. Gessen The New York Times“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. 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.
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. It was only when we became more visible that the onslaught of new discriminatory laws began.
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.
The mental gymnastics were breathtaking at times, especially when Prelogar, 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.
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.
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.
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.
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.
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.
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.
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.