SCOTUS and the Trans Rights Healthcare Case: Why It Matters

NOW TO THE U.S. SUPREME COURT IN A CASE FROM TENNESSEE OVER MEDICAL CARE TO TRANSGENDER MINORS.

MASHA GESSEN LISTENED TO THE ARGUMENTS AND TELLS MICHELLE MARTIN WHAT STOOD OUT.

>> THANK YOU SO MUCH FOR JOINING US ONCE AGAIN.

>> IT IS GOOD TO BE HERE.

>> YOU BEEN WRITING A LOT ABOUT THIS CASE THAT IS RECENTLY HAD AN ARGUMENT WITH THE SUPREME COURT.

THE UNITED STATES.

CAN YOU JUST WALK US THROUGH THE FACTS OF THE CASE?

>> TENNESSEE IS ONE OF THE STATES, ONE OF THE 26 STATES THAT IN THE LAST COUPLE OF YEARS HAVE PLACED RESTRICTIONS ON GENDER AFFIRMING CARE.

IN THE CASE OF TENNESSEE IT IS A BLANKET BAN ON ANY GENDER AFFIRMING CARE TO MINORS.

REGARDLESS OF WHAT THEIR PARENTS WANT REGARDLESS OF WHAT THEIR PATIENTS THEMSELVES WANT REGARDLESS OF WHAT THE DOCTORS RECOMMEND, TENNESSEE BANDS GENDER ARMING CARE FOR MINORS.

>> HOW DID THIS CASE COME ABOUT?

>> AFTER THE BAN WAS INSTITUTED THE CIVIL RIGHTS GROUPS SUED ON BEHALF OF THREE TEENAGERS AND THEIR FAMILIES.

ALL OF THEM HAD BEEN RECEIVING GENDER AFFIRMING CARE AND UNDER THE BAN WOULD HAVE TO'S TOP RECEIVING THE CARE AND THE CASE, THIS IS WHERE IT GETS A LITTLE TECHNICAL BUT I THINK IT IS SUPER IMPORTANT.

SO THEY SUED ON DO PROCESS GRANT BASICALLY IT MEANS THAT THEY WERE ARGUING THAT IT IS THE PARENTS AND THE DOCTORS WHO SHOULD BE MAKING THE DECISIONS AND NOT THE STATE AND THEY SUED ON EQUAL PROTECTION GROUNDS CLAIMING THAT THE BAN CONSTITUTED SEX DISCRIMINATION BECAUSE DEPENDING ON WHETHER YOU ARE ASSIGNED MALE OR FEMALE AT BIRTH YOU HAVE DIFFERENT ACCESS TO DIFFERENT MEDICATIONS.

THEY WANTED IT IN COURT THAN IT WAS REVERSE ON THE APPEAL AND THE APPEALS COURT APPEALED AND THE SUPREME COURT AND THE SUPREME COURT AGREED TO HEAR THE CASE BUT ONLY ON EQUAL PROTECTION GROUNDS SO THE ONLY THING THAT WAS SUPPOSED TO BE ARGUED IN THE SUPREME COURT LAST WEEK WAS THAT IT CONSTITUTED SEX DISCRIMINATION.

THAT IS NOT EXACTLY HOW IT WENT DOWN.

>> LET ME GO BACK A LITTLE BIT TO THE ORIGINS OF THE CASE.

IT IS NOT EXACTLY A SECRET THAT SOMETIMES LEGISLATORS AND SOMETIMES DIFFERENT GROUP ORGANIZE A CASE FOR THE PURPOSE OF RINGING IT BEFORE THE SUPREME COURT.

DID YOU HAVE THE SENSE THE TENNESSEE ADVANCED THIS LAW IN ORDER TO GET IT BEFORE THE COURT THINKING THAT THIS WOULD PERHAPS LEAD TO A NATIONWIDE BAN?

REALLY WHAT I'M WONDERING IS WHY WAS GENDER AFFIRMING CARE FOR MINORS SUCH AN EMERGENCY THAT THE STATE FELT THAT THEY HAD TO ACT IS SO EXPEDITIOUSLY TO BAN IT.

>> I DON'T THINK IT WAS STRATEGIC ON THE PART OF THE STATE OF TENNESSEE SEPARATELY THERE IS A HUGE MOVEMENT AND IT IS A COORDINATED MOVEMENT TO PASS LEGISLATION RESTRICTING OR OUT RIGHT BANNING GENDER AFFIRMING CARE FOR BOTH CHILDREN AND ADULTS ALL OVER THE COUNTRY.

IT IS NO ACCIDENT THAT MORE THAN HALF THE STATES HAVE PASSED SOME SORT OF LEGISLATION IN THIS AREA JUST IN THE LAST THREE YEARS.

THINK ABOUT IT IT IS LIKE AN EPIDEMIC OF THESE BILLS.

SO YEAH, THE GOAL IS VERY MUCH TO MAKE A NATIONWIDE BAN AND WHETHER IT ULTIMATELY TAKES THE FORM OF A FEDERAL BAN OR JUST A COLLECTION OF DIFFERENT BUT SIMILAR STATE BANDS, WE DON'T KNOW AND I DON'T KNOW THAT NECESSARILY THERE IS AN ARTICULATED GOAL EXCEPT TO MAKE IT AS DIFFICULT AS PART BEFORE TRANSGENDER AMERICANS TO ACCESS CARE.

>> I'M REALLY INTERESTED IN WHY YOU THINK NOW.

THE ESTIMATES THAT WE CEASE OF OUR SUGGEST THAT MAYBE 1% OF THE POPULATION IN THE UNITED STATES IDENTIFIES AS TRANSGENDER.

WE TALK ABOUT YOUTH, MAYBE ONE POINT OH PERCENT.

>> ACTUALLY IT IS AN EVEN TINIER MINORITY IF YOU THINK ABOUT IT.

IF YOU TALK ABOUT CHILDREN, LET'S BE SUPER GENEROUS IN COLLEGE 1 1/2 PERCENT BUT ONLY A TINY FRACTION SOMEWHERE AROUND THE 10% OF THAT 1% ACTUALLY'S WEEK MEDICAL TRANSITION.

SO WE ARE REALLY TALKING ABOUT A PRETTY SMALL MINORITY WHICH MAKES IT A PERFECT MINORITY TO SCAPEGOAT.

>> BUT WHY, WHAT IS THE POINT?

>> I THINK THE POINT IS IS THERE AND WE CAN SAY ON THE VERY SURFACE LEVEL THAT AUTOCRATS ASPIRING AUTOCRATS ALWAYS TARGET MINORITIES ALWAYS DESIGNATE SMALL MINORITIES AS THE ENEMY BUT I THINK THERE IS MORE TO IT THAN THAT.

THERE REALLY PLAYING INTO REAL ANXIETIES.

THE BIGGEST FEAR THAT ANY PARENT HAS IS THAT THEIR CHILD WILL TURN INTO A STRANGER AND SAID THIS ANXIETY THAT HAS REALLY PERMEATED THE CULTURE IN THE LAST FEW YEARS AND WE HAVE SEEN TRUMP TALK ABOUT THIS A LOT AND TO GREAT EFFECT.

YOUR CHILD WILL GO TO SCHOOL THEY WILL PUT WARM SURGERY THEY COME BACK WITHOUT PARENTAL CONSENT THEY LEFT A GIRL THEY CAME BACK A BOY OR THE OTHER WAY AROUND I MEAN THESE ARE COMPLETELY FANTASTICAL SCENARIOS IT DOESN'T WORK LIKE THAT BUT IT REFLECTS THAT FEAR.

IT REFLECTS WHAT EVERY PARENTS WORST NIGHTMARE.

AND OF COURSE THE BARRAGE OF TRUMP ADS BEFORE THE ELECTION THAT WE ARE FOR YOU, KAMALA IS FOR DAY, THEM .

THIS IS THE STRANGER, THIS IS THE OTHER, THIS IS THE OTHER THAT IS ENCROACHING ON YOUR FAMILY ON YOUR COMMUNITY ON YOUR POLITICS.

IT IS EFFECTIVE BECAUSE THERE IS REAL HERE THERE IS ANXIETY THAT THE WAY WE ORGANIZE THE WORLD WHICH IS BY GENDER, BY AGE IS GETTING COMPLETELY OFFENDED.

>> YOU HAD SOME INTERESTING THINGS TO SAY ABOUT HOW THIS IS ALSO SO ABOUT A KIND OF LOATHING OR RESISTANCE TO EXPERTISE.

SAY MORE ABOUT THAT, WHY YOU SAY THAT.

>> I THINK THAT'S WHAT WE REALLY SAW IN THE SUPREME COURT HEARING.

IT WAS SUPPOSED TO BE AN PROTECTION CLAUSE HEARING SO IT WAS ALSO SUPPOSED TO BE ABOUT WHETHER IT IS SEX DISCRIMINATION BUT IN FACT THE JUSTICES KEPT GOING BACK AND THIS IS TRUE FOR BOTH CONSERVATIVE AND LIBERAL JUSTICES, THEY KEPT GOING BACK TO THE MERITS OF THE CARE IT SELF.

AND IF YOU THINK ABOUT IT, IT'S QUITE EXTRAORDINARY BECAUSE THE JUSTICE, THEY KEPT BOTH SIDES CONSIDER GETTING LOST IN THE WEEDS.

THEY CAN'T TELL THE DIFFERENCE BETWEEN PUBERTY BLOCKERS AND HORMONE TREATMENT, NOR SHOULD THEY, THEY ARE JUSTICES, THEY ARE NOT DOCTORS BUT, DOCTORS, EVERY SINGLE PROFESSIONAL MEDICAL ASSOCIATION INCLUDING EVERY SINGLE PEDIATRIC ASSOCIATION IN THIS COUNTRY FILED AT THIS BRIEF WITH THE SUPREME COURT ARGUING THAT THIS BEEN IS HARMFUL.

THAT CHILDREN SHOULD, SOME CHILDREN SHOULD HAVE ACCESS TO GENDER AFFIRMING CARE THAT IT IS CORRECT, IT IS A NEED AND IN SOME CASES LIFESAVING.

THE FACT THAT JUSTICES ON BOTH SIDES THINK NOTHING OF, INSTEAD OF SINGLE CABLE THE DOCTOR SAY THIS IS NECESSARY, WHAT IS THE STATE'S COMPELLING INTEREST IN GOING AGAINST MEDICAL EXPERTISE, INSTEAD OF POSING THE QUESTION LIKE THAT, THEY STARTED DEBATING THE MERITS OF THE ACTUAL CARE OH, THEIR HARMS ON BOTH SIDES, WHERE PEOPLE REGRETTED HER WHAT IF THEY COMMIT SUICIDE, BOTH THINGS ARE DANGEROUS.

WE HAVE ACTUAL EXPERTS OR THAT AND I THINK THIS IS A REAL SYMPTOM OF THE TIMES.

OUR SECRETARY OF HEALTH AND HUMAN SERVICES NOT ONLY HAVING OPINIONS IN CONTRAVENTION'S, IT HAS OTHER CONTEMPT FOR EXPERTISE, THAT IS A VERY TRUMP KIND OF THING.

WE DON'T NEED EXPERTS IN GOVERNMENT, WE KNOW EVERYTHING THAT WE NEED TO KNOW WE CAN MAKE ALL OF THE DECISIONS.

>> YOU ARE A PARENT YOURSELF, AND OTHER CASES WHERE YOU HAVE PEOPLE COME FROM MARGINALIZED BACKGROUND, IF YOU ARE AFRICAN- AMERICAN AND YOU HAVE AFRICAN- AMERICAN KIDS YOU KNOW THE ROPES, YOU KNOW WHAT IT'S LIKE TO BE AFRICAN-AMERICAN, NOT THAT MANY TRANS KIDS HAVE TRANSPARENT.

DO YOU EVER HAVE ANY SYMPATHY FOR THEM TRYING TO SAY, THERE ARE THINGS THAT WE ALLOW ADULTS TO DO THAT WE DON'T ALLOW KIDS TO DO AND I JUST WONDER IF YOU HAVE ANY SYMPATHY FOR THOSE WHO SAY WHEN IT COMES TO KIDS, WE NEED TO SLOW OUR ROLE.

>> I DO HAVE A LOT OF SYMPATHY FOR PARENTS WHO ARE DEALING WITH KIDS WHO REQUIRE A LOT OF SORT OF NEW UNDERSTANDING.

IS PROBABLY A MUCH MORE COMMON EXPERIENCE.

MY CHILDREN ARE NOT TRANS OR REALLY QUEER AS FAR AS I CAN TELL AND YET SOMETIMES THEY ARE TOTAL STRANGERS TO ME AND I THINK THAT IS EVERYBODY'S EXPERIENCE.

I THINK THE FEAR THAT YOU WILL NOT SPEAK THE SAME LANGUAGE AS YOUR CHILD THAT YOU WILL NOT EXIST IN THE SAME CULTURE AS HER CHILD THAT YOU WILL NOT BE ABLE TO HELP YOUR CHILD THROUGH THE MOST DIFFICULT OR CHALLENGING MOMENTS IN LIFE THERE IS A UNIVERSAL PARENTAL HERE BUT THAT IS NOT WHAT THIS CASE IS ABOUT.

THIS CASE IS ABOUT THE STATE DECIDING AND OVERWRITING PARENTAL DECISIONS.

THE TRAGEDY OF THIS PARTICULAR CASE IS THAT THE SUPREME COURT REFUSES TO HEAR THIS PART OF THE ARGUMENT.

SO IN EFFECT, THE SUPREME COURT SAID WE ARE NOT GOING TO ALLOW YOU TO QUESTION WHETHER THE STATE HAS A RIGHT TO OVERRIDE PARENTAL OR MEDICAL DECISIONS.

EXERCISING THAT RIGHT.

THAT GRANTING OF THE RIGHT TO THE STATE TO OVERRIDE THE DECISIONS I THINK IS ABSOLUTELY TERRIFYING.

>> DO YOU KNOW HOW QUESTION WAS SEPARATED FROM THIS CASE ARE THAT THE COURT DECIDED NOT TO TAKE UP THE QUESTION AND THE REASON IT IS SO INTRIGUING, PARENTAL RIGHTS HAS BEEN A BIG CRY FOR THE CONSERVATIVE MOVEMENT.

>> THAT IS ONE OF THE PROBLEMS WITH THE SUPREME COURT, WE DON'T KNOW.

THE SUPREME COURT RARELY BOTHERS TO TELL US WHY IT IS TAKING UP A CASE OR WHY IT IS NOT TAKING UP A CASE WRITES NOT TAKING UP ONE ARGUMENT FOR THE OTHER.

WE ARE JUST LEFT TO DEAL WITH THIS BACK TO THE FACT THAT THE SUPREME COURT LET STAND THE SUPREME COURT'S DECISION THAT PROJECTS THE DUE PROCESS ARGUMENT.

THE BANNER UNDER WHICH CONSERVATIVES HAVE MARCHED IN THIS COUNTRY BUT WHAT IS ACTUALLY HAPPENING IN THE CASE OF TENNESSEE IS THAT STATE LEGISLATORS, MOST OF WHOM, POSSIBLY NONE OF THEM ARE MEDICAL PROFESSIONALS OR KNOW ANYTHING ABOUT TRANS CARE HAVE DECIDED THIS PARTICULAR KIND OF MEDICAL TREATMENT SHOULD NOT BE AVAILABLE TO PEOPLE UNDER 18 REGARDLESS OF WHAT THEIR PARENTS AND DOCTORS THINK IN THE SUPREME COURT ALREADY LET THAT STAND.

>> YOUR WRITTEN ABOUT THE FACT THAT FOR PEOPLE WHO MIGHT BE WONDERING, WELL THIS DOESN'T AFFECT ME IT HAS NOTHING TO DO WITH ME YOU MAKE THE ARGUMENT THAT IT IS, THAT THIS HAS BROUGHT HER RESIDENCE THEN SIMPLY ABOUT TRANS CARE PER SE, COULD YOU TALK ABOUT THAT?

>> TWO THINGS THAT WE CAN ALREADY TAKE AWAY FROM THIS PARTICULAR CASE, THERE IS A LOT MORE IN THE LARGER BATTLE AGAINST TRANS RIGHTS.

IN THIS PARTICULAR CASE WE HAVE THE STATE OVERWRITING DOCTORS AND PARENTS THEN WE HAVE JUSTICES BASICALLY SAYING THAT MEDICAL EXPERTISE DOESN'T MATTER.

AND THESE ARE TWO THINGS THAT I THINK ARE INCREDIBLY DANGEROUS AND I'M GOING TO USE THE WORD NOT IN A JUDICIAL SENSE BUT IN A SORT OF VERNACULAR SENSE IT SAYS A HORRIBLE PRECEDENT TO ESTABLISHING CONTEMPT FOR EXPERTISE AS OUR BASELINE.

IT DOESN'T MATTER WHAT THE DOCTORS SAY, THE JUSTICE KNOWS BETTER BECAUSE THEY HAVE THE SUPREME COURT WHICH DOES NOT MAKE THEM DOCTORS AND DOES NOT MAKE THEM UNDERSTAND TRANS RIGHTS.

THE OTHER ARGUMENT I HAVE BEEN MAKING ABOUT THE BATTLE AGAINST TRANS RIGHTS IN GENERAL IS THAT IT IS LARGELY A QUESTION OF REPRODUCTIVE RIGHTS.

IF YOU LISTEN TO THE ARGUMENT THAT THE PROPONENTS OF THESE BANDS MAKE, ONE OF THE STRONGEST ARGUMENTS, ONE OF THE LEADING ARGUMENTS RATHER IS THAT CHILDREN, TEENAGERS ASSIGNED FEMALE AT BIRTH SHOULD NOT BE ABLE TO MAKE DECISIONS THAT MIGHT LATER RENDER THEM INFERTILE AND THIS IS, IT PROBABLY DOESN'T RENDER THEM INFERTILE BUT EVEN IF IT DID, WE ARE TALKING, THE FACT THAT THIS IS THE ABSOLUTE BIGGEST POINT THAT THEY MAKE SHOULD REALLY MAKE ALL WOMEN AND ALL SUPPORTERS OF ABORTION RIGHTS SIT UP AND PAY ATTENTION.

BECAUSE THIS IS MEN WHO ARE DECIDING WHETHER AND WHEN PEOPLE REPRODUCE.

THIS IS PART OF A MUCH LARGER FRAMEWORK OF THOUGHT AND FRAMEWORK OF LAW AT THIS POINT.

>> WHAT SENSE DID YOU GET WHEN YOU AS HE SAT THROUGH THE ARGUMENT AND HOW DID YOU FEEL WHEN YOU LAUGH?

IT IS NOT JUST AN INTELLECTUAL ARGUMENT FOR YOU.

>> IT IS NOT JUST AN INTELLECTUAL ARGUMENT, I'M OBVIOUSLY NOT A CHILD IN FACT MY CHILDREN ARE GROWN BUT I AM TRANS, I KNOW THAT THESE BANDS ON MEDICAL TREATMENT FOR CHILDREN WILL PROLIFERATE AND WILL PROBABLY TURN INTO BANDS FOR ADULTS OR AT LEAST GREATER AND GREATER RESTRICTIONS FOR ADULT.

I'M OBVIOUSLY CONCERNED ABOUT BEING ABLE TO ACCESS CARE AND THIS IS CARE, NOT FOR SOMEBODY MY AGE WITH MY MEDICAL HISTORY IT IS NOT JUST GENDER AFFIRMING CARROT IS ACTUALLY HEALTHCARE THAT I NEED TO SURVIVE AND INTELLECTUALLY I FELT DIMINISHED.

THERE IS SOMETHING THAT HAS HAPPENED IN THE SUPREME COURT THAT I DON'T THINK WE HAVE REALLY TALKED ABOUT ENOUGH BECAUSE THERE IS SUCH A STRONG TENDENCY THE TO NORMALIZE ANYTHING THAT IS ACTUALLY BECOME NORMAL.

TWO OF THEM REALLY MUCH LESS QUALIFIED, MUCH LESS INTELLECTUALLY RIGOROUS THAN THE STANDARD HAD BEEN IN THE SUPREME COURT AND I THINK WE ARE SAYING THAT I THINK IT'S NOT THE ONLY REASON WE ARE SEEING WHAT WE ARE SEEING BUT I THINK WE ARE SEEING A KIND OF MORAL AND INTELLECTUAL DIMINISH, THE ONLY REAL SEARCHING THAT I HAVE OBSERVED IN THE COURT WAS WHEN JUSTICE JACKSON WAS TRYING TO FIGURE OUT WHETHER THE CASE THAT SHE WAS SEEING IN THIS, WHETHER THOSE PARALLELS HELP AND YOU COULD SEE THAT SHE WAS STRUGGLING INTELLECTUALLY AND MORALLY WITH THE ARGUMENT THAT SHE WAS HEARING ON BOTH SIDES YOU CAN SEE THAT THROUGH THE REST OF THE PROCEEDINGS.

THREE HOURS OF ARGUMENTS AND QUESTIONS AND WHAT IS HAPPENING IS A KIND OF NARROWING KIND OF DIMINISHMENT THAT IN THIS CASE WE ARE ALMOST CERTAINLY GOING TO LEAD TO LOSS OF RIGHT.

>> MASHA GESSEN, THANK YOU SO MUCH FOR TALKING WITH US.

>> THANK YOU FOR HAVING ME IT IS ALWAYS A PLEASURE.