The Supreme Court heard oral arguments yesterday in US v. Skrmetti, a major case concerning transgender rights. During the two hours of bigotry disguised as a hearing, it became clear that the conservative majority is almost certain to uphold the Tennessee law banning gender-affirming care that lies at the center of the case; but what stood out the most was the conservatives’ dedicated attempt to erase the trans community.

When conservatives want to deny rights to whichever group is asking to be given the same constitutional protections that cishetero white men have enjoyed since 1787, they have a number of tricks to get around constitutional prohibitions against discrimination and legalize bigotry.

Their most common trick is to argue that the discriminatory law at issue is not really discriminatory. Their most insidious trick is to question whether the group appealing for basic rights and justice exists as a cognizable group in the first place, and, if they deem they do not, the Republicans reject the possibility that they can be discriminated against as a threshold constitutional issue.

The trans community received both ends of these demeaning sticks during oral arguments.

The central issue in the case is whether the ban on gender-affirming care violates the Equal Protection Clause of the 14th Amendment and discriminates against trans people on the basis of sex. That may sound like an open legal question, but it’s really not. The Tennessee law, on its face, discriminates on the basis of sex assigned at birth. In Tennessee, a child assigned male at birth can take a testosterone booster, for instance, to deepen his voice and inhibit the development of breasts—but a child assigned female at birth cannot take the exact same drug for the exact same purpose. That is a point-and-click violation of the Constitution.

To get around this obvious problem, the lawyer for Tennessee, Tennessee’s Solicitor General Matthew Rice, argued that the law was not discriminatory because the child assigned male at birth is suffering from a “medical condition” (delayed growth or puberty) while the trans-boy was simply experiencing “psychological distress with her body” (emphasis mine). The Republican justices appeared to uniformly agree that it was not “sex” discrimination because both “boys” and “girls” are prevented from taking hormones for the purpose of transitioning. It is a bankrupt view of sex discrimination, but intellectual bankruptcy is how Republicans on the Supreme Court make their living.

Current Issue

December 2025 Issue

In an attempt to come at the issue from a different angle, Justice Elena Kagan argued quite passionately that the court didn’t even have to consider the question of whether Tennessee’s law is a form of sex-based discrimination because it is facially discriminatory against the transgender community. That is because the law specifically targets trans teens. But here the Republicans deployed their other trick, and argued that the trans community does not face discrimination at all.

Justice Amy Coney Barrett literally fixed her mouth to say that the trans community faces no history of state-sponsored discrimination that she is aware of, only what she called “private” discrimination, and thus could not be viewed as a suspect class (in the legal jargon, being identified as a suspect class—a group of individuals sharing an immutable characteristic that has been subjected to historical discrimination—grants that group a higher level of protection under the equal protection clause). She essentially argued that the government never does anything bad to trans people, and thus the court doesn’t have to worry if the states infringe on their civil rights.

Justice Sam Alito echoed the concern, and asked Chase Strangio, an attorney with the ACLU who co-argued the case against the Tennessee law with US Solicitor General Elizabeth Prelogar, if being trans was an “immutable characteristic.” The smug and retrograde innuendo from Alito was that since trans people transition, they cannot be said to have an immutable characteristic.

These unnecessary barbs sting at least as much as the likely legal loss, because they not only reduce the trans community to an invisible underclass but implicitly deny the very reality of transness. They are the Supreme Court’s way of giving its blessing to discriminate, belittle, and harass kids—while treating trans individuals like hysterical teenagers who don’t know what’s good for them.

Indeed, Rice gave away the whole game (and the likely argument the justices will make, come June) near the end of the hearing when he argued that, in bringing the case, the trans plaintiffs are asking for a “substantive right to non-conformity.” It was a gross yet revealing admission of his viewpoint: Tennessee should provide kids with hormone treatment if, and only if, they conform to Tennessee’s vision of cisgendered adolescence, but they won’t if the child doesn’t.

The argument against non-conformity is all the anti-trans arguments ever boil down to: Republicans, MAGA lawmakers, and conservative Supreme Court justices hate people who are different. This time, the bigots on the Supreme Court didn’t even try that hard to hide their antipathy to difference behind legal jargon. They just pretended that people who are different don’t really exist.