An open message to trans and nonbinary youth on the Skrmetti decision
The Supreme Court got it wrong. This isn’t the first time, and it won’t be the last. In 1896 the Court decided, in a case called Plessy v Ferguson, that racial segregation was legal under the Constitution. They ruled against a multiracial man who had tested segregation laws by sitting in the ‘whites only’ section of a train in Louisiana.
The Plessy decision was a failure of legal analysis.
The Fourteenth Amendment of the Constitution promises all people “the equal protection of the law.” Pretty simple, and pretty radical. Not surprisingly, over the years, the courts have found many ways to weasel out of that commitment and justify discriminating against one group of people or another. Plessy was not the first or the last legal ruling that gave the government a legal way to practice discrimination.
The Plessy decision was a failure of compassion.
The members of the Court, all white men, had experienced racial segregation on a daily basis, but only from the privileged side. They did not, could not, or would not see the devastating impacts of segregation on Black people, and they dismissed or ignored the testimony that Black people provided.
The Plessy decision was a failure of vision.
The Justices were born into a society that considered Black people to be property. Although they lived through major social upheavals– the Civil War, Emancipation, and Reconstruction– their vision could not stretch far enough to imagine racial equality or racial integration.
Not everyone agreed with the Plessy decision.
Dissenting Justice John Marshall Harlan wrote that racial segregation was “hostile to both the spirit and the letter of the Constitution of the United States.” He argued that ‘separate but equal’ was a fiction, because the separation was based on racial ‘animus’ (the legal term for bias or prejudice) and that treating Black people as inferior was the entire point of the law. He also correctly predicted that the ruling would result in a widespread system of racial segregation, which we know today as the Jim Crow era.
The Court’s decision in Skrmetti shares many similarities with Plessy.
The Skrmetti decision is a failure of legal analysis.
Chief Justice Roberts wrote that the law banning gender-affirming care doesn’t discriminate against transgender people, it only targets people with a diagnosis of gender dysphoria. Well weaseled, Justice Roberts. Three of the justices, Alito, Thomas and Barrett, don’t believe that trans people should have any civil rights at all; they side with the Trump administration’s position that trans people don’t even legitimately exist.
The Skrmetti decision is a failure of compassion.
All nine justices are straight and cisgender; they experience a binary gender society through a position of privilege. Six of them just ignored the outpouring of testimony from medical and mental health professionals, and the stories told by trans youth and their families, about the devastating impacts of being denied gender-affirming care.
The Skrmetti decision is a failure of vision.
The nine justices were born into a society that considered gender to be rigidly binary, permanent, and inflexible. The majority do not, cannot, or will not envision a gender expansive society where people have broken free of the constraints of gender roles and stereotypes. Trans and nonbinary people represent a freedom that terrifies them, and so they allow the legislative and executive branches to pass laws and executive orders to silence and erase us.
The Skrmetti decision also has its dissenters.
Justices Sotomayor, Kagan, and Jackson made it clear that transgender people DO have a Constitutional right to the equal protection of the law. (Those radicals!) They acknowledged that gender-affirming care bans have a terrible impact on trans youth and their families. They also recognized that anti-trans animus is at the heart of the gender affirming care ban, and predicted that the decision of the majority was going to encourage even more anti-transgender legislation.
Things are probably going to be bad for a while.
The Plessy decision opened the doors to Jim Crow segregation, and Skrmetti is going to be used to justify any number of anti-trans laws. But we will fight them, and we will lose, until we win. And we will win, because humans are, and always have been, gender diverse.
We will win because a gender creative, gender inclusive society, in so many ways, is already here.
Why else would we see hundreds of anti-trans bills be proposed every year? Why else would we see so many executive orders focused on gender markers and pronouns? Why else would they ban the books that tell our stories? Why else would they pull down Pride displays? All the legal and political backlash is a response to the fact that a gender expansive world is even now being born, no matter what they try to do to stop it.
So don’t let that Supreme Court majority get into your head. The Supreme Court is made up of individuals with biases and prejudices, like anybody else. You are part of a gender inclusive future that they lack the understanding, the compassion, and the vision to see. There is a problem, but it’s not you. It’s them.
