Justice Sotomayor Gets It Right
How a comparative analysis brought the fight against transmisogyny to the U.S.’s highest court.
I write briefly today to highlight the critical accuracy of Justice Sonia Sotomayor’s line of questioning in this morning’s oral arguments at the United States Supreme Court. The Court heard these arguments as part of their consideration of U.S. v. Skrmetti, a case assessing the constitutionality of Tennessee’s oppressive, scientifically unjustified 2023 law banning all gender-affirming care for trans* youth in the state.
In presenting questions to U.S. Solicitor General Elizabeth Prelogar, Sotomayor stated “for decades, women couldn’t hold licenses as butchers, or as lawyers, because legislatures thought that we weren’t strong enough to pursue those occupations.”
Some may wonder what women’s employment rights have to do with trans* healthcare access. But if you look closely at the dynamics playing out in today’s arguments — and our broader societal discourse — it turns out the connection is crystal clear.
When Tennessee banned medically necessary healthcare for some, it did not ban that care for all. Instead, it made a particularly bold overreach in banning this care on the basis of sex. If a child assigned male at birth has doctors and parents who decide they need testosterone, they will receive that care. If a child assigned female at birth has doctors and parents who decide they need testosterone, however, Tennessee believes its state legislators have the right to step in and prohibit the very same care that the child assigned male at birth will receive.
U.S. v. Skrmetti, and its exposition of the unconstitutional nature of the Tennessee law, has sex discrimination at its core. And at the core of sex discrimination is transmisogyny. (If you’re not familiar with this term, I urge you to read Julia Serano’s explanation of its conception here.)
In the piece linked above, Serano highlights as a fact of transmisogyny that “comments that would typically be considered extraordinarily misogynistic if they were directed at cis women are not considered beyond the pale when directed at trans women.”
Similarly, U.S. laws that discriminate based on sex are not generally tolerated today – women can be butchers and lawyers, as Sotomayor raised. But Tennessee is fighting for an exception that could lead to Serano’s note expanding its scope to read: “laws that would typically be considered extraordinarily misogynistic if they were directed at cis women are not considered beyond the pale when directed at trans women.” Put another way, Tennessee is fighting for a worldview in which trans girls cannot approach the femininity so reviled by its state-sponsored transmisogyny, and trans boys must not be allowed to escape their fate therein.
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Continuing her remarks, Sotomayor asked “Isn’t the purpose of intermediate scrutiny, the level of scrutiny that we apply, necessary to ensure that whether it’s legislatures or this court, that we don’t make those personal judgements, but that we subject the judgements about these issues to a heightened review to ensure that those children who are going to suffer all of these consequences will be made to do so only when it’s compellingly necessary?”
The answer is yes, and the analysis is critically accurate. By invoking the history of misogyny in U.S. law while calling for the protection of trans* children’s well-being, Sotomayor reaches the root of the issue at hand. I do not believe the anti-trans* far-right will stop at adolescent gender-affirming care bans, just as they did not stop at abortion bans. Rather, I believe they will pursue a continuing campaign to ever-increasingly limit the gender equity rights of all people.
Sotomayor’s insight today is a beacon of light, even as the future of U.S. law becomes ever darker.
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