Tell Me, David
Listen to queer stories — past and present. Produced by journalist and podcaster David Hunt, a regular contributor to This Way Out: The International LGBTQ Radio Magazine.
Tell Me, David
Lies and Laws Target Transgender Youth
The United States Supreme Court heard oral arguments on December 4, 2024, in a case that could decide whether transgender youth are protected by the Constitution’s promise of equal protection. Although the case seems to stand on shaky ground before the high court’s conservative majority, a transgender attorney arguing the case stood firm. Chase Strangio of the ACLU made history as the first transgender attorney to argue before the Supreme Court, challenging Tennessee's ban on gender-affirming health care for minors.
In this episode, transgender rights attorney David Brown unpacks the potential ramifications of this landmark case and explores some of the court's options. As we dissect the court's deliberations, we focus on the probing questions from Justice Ketanji Brown Jackson, who exposed the state's conflicting justifications for banning gender-affirming care.
In the program's second half, Kathie Moehlig, executive director of TransFamily Support Services, discusses the struggle for gender-affirming care in America, where 26 states have banned the treatment. Families face the harsh reality of relocating to "sanctuary" states for their transgender children's medical needs — if they can afford it. Listen in to gain insights into the emotional and legal landscapes families navigate and the pressing challenge of ensuring health care access for all transgender youth nationwide.
David Hunt is an Emmy-winning journalist and documentary producer who has reported on America's culture wars since the 1970s. Explore his blog, Tell Me, David.
So in a worst-case scenario, the Supreme Court, just like it did in Dobbs, could say you know what, for the past 50-odd years we've been wrong.
Kathie Moehlig:We heard during the campaign that you know, kids are going off to school and they're being transitioned and they're getting sex change operations at school and that is like the most ludicrous thing, because that's not how it happens.
David Hunt:Welcome to Tell Me David queer stories, past and present. I'm David Hunt. Twenty-six US states so far outlaw gender-affirming health care for trans and non-binary youth. What's the impact of those bans? We'll hear from the founder of a California organization that helps families through the transgender journey. But first a short dive into a landmark legal case that could give more states permission to block life-saving care for trans kids. Listening to arguments over arcane points of law can have you holding back a yawn. Listening to oral arguments in a transgender rights case streaming live from the United States Supreme Court, December 4th, David Brown found himself holding back tears.
David Brown:I almost cried from happiness. I'm not a trans person myself, but I've been doing trans rights law for 20, almost 20 years at this point, and a generation ago being transgender was being out and transgender certainly was was almost a career death move for attorneys. There was so much discrimination, there were so many headwinds to the careers of transgender lawyers that there were very few who were out.
David Hunt:But one transgender lawyer was very much out on December 4th with the traditional salutation "and, may it please the court. Chase Strangio of the American Civil Liberties Union made history that day as the first trans attorney to argue a case before the US Supreme Court, and not just any case, a case challenging Tennessee's ban on gender-affirming health care for minors. And no, his visibility before the justices probably didn't please the court, at least not its conservative majority as much as it pleased David Brown. Brown, former legal director of the Transgender Legal Defense and Education Fund, talked with me about the court's options in the Tennessee case, officially titled United States v Jonathan Scrimetti, the state's attorney general. States v Jonathan Scrimetti, the state's attorney general. The case involves the question of whether Tennessee's ban on gender-affirming care violates the Equal Protection Clause of the Constitution's 14th Amendment. It's familiar ground for the Supreme Court. Brown says there are several ways the court could resolve that issue. They might take a chapter from the 2022 Dobbs decision that struck down abortion rights by strictly narrowing the right to privacy. Brown explains.
David Brown:So in a worst case scenario the Supreme Court, just like it did in Dobbs, could say you know what, for the past 50 odd years we've been wrong and actually we think it doesn't prohibit sex discrimination. We think it doesn't prohibit sex discrimination, right, we're going to revert the Equal Protection Clause to its more narrow understanding that people had in the 19th century, sort of drag the country back a couple of centuries.
David Hunt:That's possible, but unlikely, Brown says. Also unlikely, he believes, best-case the scenario, a win for transgender minors and their families. So what falls between those scenarios? Tennessee argued that its law targets medical treatments and doesn't draw lines based on sex. That argument may find a receptive audience on the high court.
David Brown:They could agree with the state and say you know, this is about medical care, not about sex.
David Hunt:David Brown.
David Brown:And in that case, although it would be devastating I don't want to de-emphasize that it would be devastating for the plaintiffs. In this case, it would be a big problem for trans health care and for in all kinds of other ways that maybe we don't even understand yet. Nevertheless, it would mean that sex discrimination maintains validity as a basis for arguing that trans people and others LGBTQ people, women and others have a right to bring these cases about other things in the future.
David Hunt:But Justice Ketanji Brown Jackson wasn't willing to let Tennessee ignore the plain text of its own law. She questioned Tennessee Solicitor General Matt Rice on the state's conflicting arguments.
Ketanji Brown Jackson:I don't know how you can say both that girls and boys are not similarly situated at step one when this law is being evaluated and it's not making a sex-based classification.
Matt Rice:I think our position is that if you're in the point where we're treating giving testosterone to a boy with a biological deficiency as the same thing as giving testosterone to a biological, healthy, biological girl who wants to transition, then there has to be some threshold inquiry that recognizes the biological differences between those two.
Ketanji Brown Jackson:Right, but when you're doing that, you're making a sex-based classification. I mean the very argument carries with it the characterization that we're trying to identify here.
David Hunt:A close reading of the Tennessee law bears out Jackson's observation. In the words of the statute, this state has a legitimate, substantial and compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty. Will this matter to the court's very conservative majority?
David Brown:David Brown, I understand why people think there might be a negative outcome in this case. I think it's too soon to say. We know that Justice Gorsuch, who wrote an important opinion in the Bostock case holding that transgender people have valid sex discrimination claims under Title VII anti-discrimination law about employment in this country. He didn't say anything during the whole argument so we don't really know what's going on in his mind. We didn't get a preview of what might be going on in his mind and so it's quite possible he will extend his reasoning to the Equal Protection Clause A similar justice. Amy Coney Barrett asked a bunch of very interesting and engaged questions about the history of discrimination against transgender people and what this law actually does. So it suggests that she's thinking about the real-world impacts of this case and where the court's decision might lie in the arc of history.
David Hunt:The Supreme Court is expected to rule on the case before the end of the current term, next summer, barring intervention by the incoming Trump administration, which may seek to reverse the government's position in the case. You're listening to Tell Me, David, queer stories past and present. I'm David Hunt, continuing my look at efforts to outlaw gender-affirming health care for trans and non-binary youth and the impact of those efforts. There are stories. Like this one. Since the age of three, Katie has known she wants to be a fashion designer when she grows up. When her preschool class did a project making hand-stitched bags, she was thrilled with the idea of making a purse. But her teachers told her boys make book bags. Katie made a purse anyway and embroidered a unicorn on it for good measure. Katie recently started her first year of high school, but every six months she has to miss school to fly from her home in Texas to California to access medical treatment for her gender dysphoria. Texas officials have declared Katie's gender-affirming health care to be child abuse. The family will likely be forced to leave Texas for a more welcoming state
David Hunt:And there's this story.
David Hunt:Wood is a 12-year-old from central Ohio. He's been working to understand his gender identity since he was in the third grade. Eventually he realized that he is a transgender boy. This summer, wood and his mother visited with his primary care physician to start learning about medical treatment options available for gender dysphoria. They were referred to an interdisciplinary group of psychiatrists, psychologists and endocrinologists at a regional children's hospital. In August, wood and his mother were in an exam room when the doctor learned that an Ohio judge had allowed Ohio's ban on medical treatments for minors with gender dysphoria to go into effect.
David Hunt:Wood and his family have had to explore other treatment options, none of which are practical or compatible with their daily lives. They believe their only remaining option is to travel out of state (a six-hour round-trip drive) to receive the medical care that Wood, his family and his specialists in Ohio all believe is an appropriate and necessary treatment option. Every trip to the pharmacy, the phlebotomist or the doctor is a day-long affair. These stories and others are recounted in a friend-of-the-court brief filed by a coalition of non-profit agencies hoping to convince the United States Supreme Court to protect the rights of transgender youth in a case challenging Tennessee's ban on gender-affirming care for minors. One of the organizations that signed onto the brief is Trans Family Support Services, a non-profit agency based in San Diego, California. Kathy Moehlig is the agency's founder and executive director.
Kathie Moehlig:One in four trans youth have attempted suicide in the last two years and we know that that number has skyrocketed because of all of this misinformation, because of the attacks. You know, I have kids on a regular basis that tell me I don't even know why I should exist when my government hates me. That's a heavy load for a middle schooler to be carrying.
David Hunt:Moehlig knows the challenges facing gender nonconforming kids firsthand.
Kathie Moehlig:My son started his transition well over a decade ago, when he was just 11 years old, and back then most people didn't even know what the word transgender meant, much less it affected younger kids. We live in San Diego. We had no doctors who were willing to treat him. Schools had no idea how to best support him. It was before we have all the laws we do now in California.
David Hunt:She founded Trans Family Support Services to help others on the transgender journey. Since then, the agency has served more than 5,000 trans youth and their families across the country, providing family coaching, assistance with health care and insurance issues, help navigating the legal system and school support. All services are free. That experience has taught her a lot about the transition process. It turns out there isn't a typical trans kid, but, I pointed out, maybe that's the point.
Kathie Moehlig:That is absolutely the point. Every trans person's journey is very unique to them. I, you know, when I'm working with my families, with my parents, I'm like you know it would make my job so much easier if I could just hand you a checklist and say here you go. But that's like not what it's about, right. And we believe very much that the trans person isn't really the one transitioning. It's they're just aligning themselves with who they know themselves to be. It's generally the people around them that are really in this like transition, and so that's where our emphasis and focus really is is making sure that every trans person has at least one family member who has education and knows how to support and affirm them.
David Hunt:I'm going to stop here to detour into the thinking of someone who doesn't support trans youth. Actually, two men: Tennessee Senate Majority Leader Jack Johnson and House Majority Leader William Lamberth. They're the authors of the Tennessee law that bans gender-affirming care, the law under review by the Supreme Court this term. If you assumed that the law offers a reasoned argument questioning the medical consensus that gender-affirming care is appropriate in many cases, you'd be wrong. The law is, well, a screed. It claims that gender-affirming care is harmful, unethical, immoral and experimental.
David Hunt:That doctors are performing gender reassignment surgeries on youngsters to make a lot of money. That doctors have posted naked pictures of children to advertise such surgeries. That the same pharmaceutical companies responsible for the opioid epidemic are making money from these procedures. That one of the pioneers in the field of gender-affirming care was a child abuser. And the law takes a swipe at Planned Parenthood for good measure, saying that the non-profit health agency is responsible for killing tens of thousands of unborn children. The law repeatedly references surgeries to remove a minor's sex organs, perpetuating the notion that kids are undergoing sex change operations. That language mirrors claims made by Donald Trump on the campaign trail. "Your boy leaves for school, comes back a girl without parental consent, he claimed at one campaign stop. Was that a lie? Yes, it was.
Kathie Moehlig:The concept and we heard during the campaign that you know kids are going off to school and they're being transitioned and they're getting sex change operations at school and that is like the most ludicrous thing, because that's not how it happens. There are no minors anywhere in our country that are getting access to any medical care of any kind without parental consent. That just doesn't happen. Gender-affirming care is simply any care having to do with someone's gender transition and for some people, the only gender-affirming care they may access might be mental health care.
David Hunt:But the lies serve a purpose. The barrage of misinformation complicates the public discourse. Supreme Court justices, for example, debated the Tennessee law as if it were a good faith effort to address a public policy issue. That's not how Moehlig sees it.
Kathie Moehlig:It is not done in good faith. There is not all the medical evidence, all the mental health research, all the major medical and mental health associations all agree that gender affirming care is life-saving care. So I don't know how taking that away could be anywhere near good faith. It's sensationalism. It is being used to wield power. It is used to set up discriminatory practices. None of that is in good faith.
David Hunt:Why lie about gender-affirming health care? If a politician told you he advocated denying appropriate medical treatments for gender dysphoria to young people, you might think he was overstepping his role as a policymaker. But you might applaud a politician who promised to protect kids from backroom sex change operations and left-wing gender insanity. It's framing theory. How information is presented to an audience influences the choices they make and how they process that information. It's not new. Sociologist Erving Goffman first published his research on framing theory more than 50 years ago. You know what else Goffman studied? Stigma. That's another part of the story.
Kathie Moehlig:It is exhausting when we think about the level of hate and discrimination that's coming. I mean, just looking at the idea of that Congress is working to pass the bill to keep trans people from using the restrooms right, and you know it's focused on one senator who happens to be trans, but there are lots of other trans and non-binary folk that work in that building that this has now disrupted their lives. They were going along just doing their job and doing what they're supposed to be doing, and now this is a disruption right and that's the goal of the people who are doing this. I'll just say today I talked to a new family. Their youth just recently told them about their gender identity and instead of just being able to wrap around that and really care for this family in the way in which we have, I had to spend the first 20 minutes helping them to understand what the political landscape is looking like.
David Hunt:Outlawing gender-affirming care in some states creates gender refugees, families forced to move to more welcoming states because they are, in essence, second-class citizens in their home states. On top of that, there are costs.
Kathie Moehlig:It's not just expensive but if you think about it you're pulling. You know you're pulling your family out of where you've built up your resources and probably have other family members close and your jobs and your. You know the other children in the family have relationships and rapport and sports and you know groups that they belong to. It is extremely difficult for families to up and move.
David Hunt:Families that can't afford to move to a state where gender-affirming care is offered are on the losing side of the nation's growing wealth gap. Many of these families have to choose between discontinuing gender-affirming care for their child or traveling across state lines to find providers willing to work with them. It's increasingly tough, Moehlig says.
Kathie Moehlig:It's difficult for our families who are fighting and trying to navigate and giving their insurance to cover things and now finding providers with 26 states that have banned this care. All of those people have to go to other states for their care and it's impacted wait time. It impacts the quality of care because now we have so few providers compared to what the need is.
David Hunt:Sadly, trans and non-binary children suffer the brunt of the stigma. In its amicus brief to the Supreme Court, Trans Family Support Services lays out the stark reality. It's a disheartening read. "The distress caused by untreated gender dysphoria, they say, is often all-consuming, leaving transgender youth with little capacity to focus on other pursuits. Losing access to gender-affirming care can cause serious, lasting and potentially life-threatening psychological and physical distress. All this because gender is the latest battleground in America's ongoing culture wars. Trans youth are the latest easy targets of the right, just as people with HIV-AIDS, gay and lesbian, school teachers and queer members of the military were in earlier times.
Kathie Moehlig:I talk to parents from a perspective of as parents of trans people, regardless of the age of that child. Our job is to help build resilience in our kids. That has become so much more important now, and so there's so much energy and efforts that have to be put into knowing what the fights are going to be, knowing what the challenges our kids are going to experience is, and then how do we go about still providing them with some hope for their future when the attacks are so great? Eleven states that have deemed themselves either safe havens or sanctuary states that we know this care is going to be protected, as long as the state has the right to protect that. But 11 states is certainly not enough. We have trans youth in every state in this country and they all deserve the right to medical care.
David Hunt:I'd like to thank trans rights attorney David Brown and Kathy Moehlig, founder of Trans Family Support Services, for sharing their insights for this program. Audio of the Supreme Court's oral arguments, courtesy of C-SPAN. For Tell Me, David, I'm David Hunt.
