Stories of Resistance, Survival and Beauty from the Bay Area’s Trans Community

The U.S. Supreme Court upheld a Tennessee law on Wednesday that bans gender-affirming medical care for minors. For many transgender people, the ruling is yet another setback in a long line of attacks on their rights that stretches back through most of human history. And yet, transgender people have created a rich legacy throughout, especially in the Bay Area. Two new projects highlight their stories. One is a “Trans Bay: A History of San Francisco’s Gender-Diverse Community,” a KQED series profiling important trans artists and activists from the 1890s-2000s. Another is a new book, “So Many Stars: An Oral History of Trans, Nonbinary, Genderqueer, and Two-Spirit People of Color”. We’ll talk to their creators and an expert in gender law about the court’s decision and what lessons we can take from trans history.

This partial transcript was computer-generated. While our team has reviewed it, there may be errors.

Alexis Madrigal: Welcome to Forum. I’m Alexis Madrigal. In a 6–3 decision, the Supreme Court effectively ended gender-affirming care for minors in more than twenty states that have banned such treatment — even when a child, their parents, and their doctor agree it may help them live a happier, healthier life. It comes after Donald Trump’s campaign plowed hundreds of millions of dollars into running ads specifically targeting trans people, and an entire wave of ongoing right-wing propaganda has focused on children playing high school sports.

We’re going to get to the stories of queer elders and the legacies of resistance in the LGBTQ+ community in a few minutes. But first, we’re going to check in on what the Supreme Court ruling in Skrmetti means. Suzanne Goldberg is a professor and director of the Sexuality and Gender Law Clinic at Columbia Law School, and she joins us this morning. Welcome.

Professor Goldberg: Thank you so much. Glad to be here.

Alexis Madrigal: So for those who aren’t following this case as closely as some of us, what was the decision in this case?

Professor Goldberg: Yeah, so for anyone who wasn’t following this case closely, what’s most important to know is that the Supreme Court agreed to decide how courts should look at bans on gender-affirming care. The case specifically involved a Tennessee law that blocked doctors — or healthcare providers — from prescribing puberty blockers and hormones. There was a surgical provision too, but that really wasn’t part of this case.

But the Tennessee law blocked healthcare providers from providing puberty blockers and hormones to minors — to young people — but only for the purpose of gender-affirming care. So if a kid needed those exact same medications because they had what’s called precocious puberty — puberty that came on earlier than is typical or normal — those medications could be provided. But the state legislature in Tennessee said no use of these medications for gender-affirming care.

And what happened yesterday was the Supreme Court said Tennessee can do that. The Court said this law doesn’t even discriminate against transgender people. It only draws lines based on the age of a patient and based on the diagnosis — gender dysphoria or not. So that’s where we are. And the Court held 6–3, meaning an overwhelming majority upheld the Tennessee law.

Now to be clear, states can still allow healthcare providers to provide gender-affirming care, and about half of the states in this country still permit it. But in the states that don’t, this law gives them the green light.

Alexis Madrigal: Yeah. Chase Strangio argued the case — the first transgender lawyer arguing before the Supreme Court. What was the argument that Chase tried to make — that this law should be overturned or found unconstitutional?

Professor Goldberg: Chase made the argument — and also the United States, under the direction of President Biden, made the argument — that this law draws a line based on the sex of the patient. And that whenever a government draws lines based on sex, the government can only do so if it has what we call in law an “exceedingly persuasive interest,” meaning a really, really good reason for doing so.

And so the argument was that because the state allows these hormones — puberty blockers — for girls, for example, if they have early onset puberty, but does not allow these hormones for girls who seek medical care because their gender identity is inconsistent with their natal sex or their sex assigned at birth, that that’s a line based on sex. Right? There’s no way to understand that you can get these medications for some reasons but not for others if you’re transgender — the only way to see that is because there’s a sex-based line.

And even the state of Tennessee — the lawmakers said, “We want to help young people be comfortable in their own sex.” So by any way you look at this, Chase argued — and the United States argued — this is a sex-based line.

Three justices in dissent agreed, including Justice Sotomayor, who wrote a very powerful dissent that the majority subjects a law that plainly discriminates based on sex to, quote, “mere rational basis review,” and that in doing so, the Court abandons transgender children and their families to political whims. And in sadness, she added, she dissented.

Alexis Madrigal: If you’re a California parent of a trans child getting gender-affirming care — how worried should you be?

Professor Goldberg: The state of California allows gender-affirming care and actually protects healthcare providers who provide it. So if a child is receiving appropriate, medically indicated gender-affirming care, with the consent of their parents — right now, this ruling does not tell California to change its path.

And actually, the Court is quite specific — even Justice Alito, who agreed with the majority and went further and said this law might discriminate against transgender people — said if it does, it should still be subject to this low level of judicial review.

Justice Alito said, “Look, this doesn’t deal with pronouns. This doesn’t deal with how people choose to dress. This deals with this kind of medical care.” But again — in California and in about half of the states in the country — those states can continue to provide care and allow children to access it with the consent of their parents and their medical providers.

Alexis Madrigal: Do you think it’ll embolden federal authorities to try to stop transgender care for young people across the country?

Professor Goldberg: Well, they’re already in the process of trying to do that. As I’m sure many of your listeners know, on the very first day of the Trump administration, President Trump issued a variety of executive orders. And that first day — which is very important for signaling the priorities of a new president — he issued an executive order rejecting what he called “gender ideology.” Right? And the idea is that — as he said — there are only two sexes. Literally denying the existence of transgender people.

That was followed up by another executive order directing all of the federal government not to recognize the existence of transgender people in a variety of settings — such as prison. There have been transgender service members forced out of military service, as we speak. And also forbidding the federal government from spending any funds to support gender-affirming care for young people — in fact, going so far as to call this “mutilation of people.”

So it’s a — you know — this presidential administration, by contrast to the last under President Biden, has been very, very hostile to transgender youth and to transgender people generally in all sorts of ways.

States, by contrast — some states including California — have been protective. But there is absolutely tension playing out across the country. And it is very, very painful and difficult for anyone who is a transgender kid, who is a transgender person, or anybody who is a parent — or has a loved one — who is facing down this kind of hostility.

Alexis Madrigal: You know, there’s a story out in The New York Times this morning that frames taking this case to the Supreme Court as possibly being a strategic mistake. On the other hand, this was a ban on care for kids in more than twenty states. How do you view the article, if you’ve seen it — or just the argument, if you haven’t?

Professor Goldberg: So some people say — as the article suggests — it was too soon to bring this case forward to the Supreme Court, or even into any court, because the Court wasn’t ready or the country wasn’t ready. And those are, you know, useful conversations to have.

But as I think your question sort of opened up, this is a situation where transgender youth in Tennessee and in many other states are getting this health care now — and the law requires their healthcare providers to wind down their medically necessary care to respond to a diagnosed condition of gender dysphoria.

So it’s a very difficult situation for young people — for whom this health care is life-saving — where their doctors believe it is necessary based on the evidence.

There’s, of course, contestation in some circles about the evidence, and I think those debates are worth reading. But as one colleague of mine who is very familiar with the literature says: in opposition to gender-affirming care, there is a lot of junk science. So consumers of this information have to be very careful.

And instead, what the courts are doing is wiping out the possibility of even having gender — evidence-based care — for young people in states that choose to do so. So it’s hard. You know, these are hard issues. I wouldn’t ever say they’re easy. But the removal of health care that may be life-saving — it’s hard to say, “Put that on hold.”

Alexis Madrigal: Just with our last minute here — I want to ask: legally, despite the majority’s protestations, does this decision endanger trans people’s rights more generally?

Professor Goldberg: The decision raises the risk that other kinds of discrimination against trans people will be given a judicial pass — right? That they’ll be subject to a low level of judicial review. And what that means is that if a state comes up with any reason — any sort of, you know, what we call a “legitimate” reason, though it’s a very low bar — the state can discriminate against transgender people.

Now, that’s not what this ruling says. In fact, the majority went out of its way to try to avoid saying it was upholding discrimination against transgender people — saying instead that it was only upholding this kind of line-drawing by the state because of age and medical diagnosis.

So I think it’s too soon to tell where we’ll land. But it’s a challenging time, for sure.

Alexis Madrigal: We’ve been talking about yesterday’s Supreme Court decision upholding a Tennessee ban on gender-affirming care for young people. We’ve been joined by Suzanne Goldberg, professor and director of the Sexuality and Gender Law Clinic at Columbia Law School.

Thank you so much for joining us, Suzanne.

Professor Goldberg: Thank you so much.

Alexis Madrigal: We’ll be back with more right after the break. I’m Alexis Madrigal.