Rebirth of sex
Trans litigators recruit the reproductive binary to woo the Supremes
The US Supreme Court heard oral argument last week in the case US v Skrmetti, a challenge1 to Tennessee’s law SB1, which prohibits gender medicalisation of minors with puberty blockers, cross-sex hormones or surgery.
These are my impressions.
The carrot
Among Tennessee’s challengers is “John Doe,” a 12-year-old girl who takes puberty blockers and identifies as a boy. She says: “I’ve gone through a lot to finally get to the happy, healthy place where I am, and I desperately hope that doesn’t all get taken away from me.”
That happy, healthy place is the carrot dangled by “gender-affirming care.”
In the Supreme Court on Wednesday, after listening to challenger-in-chief US Solicitor-General Elizabeth Prelogar, Justice Samuel Alito nibbled away at the carrot—
“[C]an I ask you a question about the state of medical evidence at the present time? In your petition, you made a sweeping statement, which I will quote: ‘Overwhelming evidence establishes that the appropriate gender-affirming treatment with puberty blockers and hormones directly and substantially improves the physical, psychological well-being of transgender adolescents with gender dysphoria’.
“That was in November 2023. Now, even before then, the Swedish National Board of Health and Welfare wrote the following: They currently assess ‘that the risks of puberty blockers and gender-affirming treatment are likely to outweigh the expected benefits of these treatments,’ which is directly contrary to the sweeping statement in your petition.
“After the filing of your petition, of course, we saw [the] release of the Cass report in the United Kingdom, which found a complete lack of high-quality evidence showing that the benefits of the treatments in question here outweigh the risks.
“And so, I wonder if you would like to stand by the statement that you made in your petition or if you think it would now be appropriate to modify that and withdraw the statement that there is overwhelming evidence establishing that these treatments have benefits that greatly outweigh the risks and the dangers.”
Unlike the chorus of gender-affirming clinicians in various countries, Ms Prelogar didn’t pretend that the Cass report had little relevance outside the particularities of the UK health system. Nor did she seek to undermine the systematic evidence reviews that drove more cautious treatment policy in Sweden and the UK. Instead, she implicitly abandoned the high ground of her “overwhelming evidence” claim and retreated to the low-grade assertion of “a consensus that these treatments can be medically necessary for some adolescents.”
If other judges have delved into Baroness Cass’s April report, they like Justice Alito will know that an expert consensus is the weakest form of evidence, and that a pattern of circular referencing in treatment guidelines internationally has created the misleading appearance of a gender-affirming consensus.
Justice Alito, a legal conservative, did chide Ms Prelogar for hiding away Europe’s shift to caution—
“In your opening brief, you did not mention any of these European developments [involving greater caution]. And in your reply brief, is it not true that you just relegated the Cass report to a footnote?”
Ms Prelogar did not contest Justice Alito’s account of an end to routine use of puberty blockers by England’s National Health Service and a legislative ban imposed by Britain’s Conservative government and then reaffirmed by the current Labour administration.
Her fallback position was that, unlike Tennessee, Europe’s jurisdictions had not imposed an outright ban (in the UK, it’s a matter of live debate whether or not a clinical trial of puberty blockers can be ethical). “Each of the medical authorities in those states has called for an individualized approach to care,” Ms Prelogar said. “They’ve said it shouldn’t be routinely applied.”
How treatment can be successfully individualised has not been explained. The Cass review made a study of the gender dysphoria treatment guidelines used around the world, and noted their reassuring insistence upon multidisciplinary teams in gender clinics. Yet, Cass concluded, those same treatment guidelines betrayed “the lack of any consensus on the purpose of the assessment process.” If some adolescents stand to benefit from these medical interventions, how are they to be identified?
The stick
“Do you want a live trans son or a dead cis daughter.”—catch phrase of gender-affirming clinicians.
Back in court on Wednesday, Justice Sonia Sotomayor, a liberal, put the question: “Some children suffer incredibly with gender dysphoria, don’t they?”
Ms Prelogar: “Yes. It’s a very serious medical condition.”
Justice Sotomayor: “I think some attempt suicide?”
Ms Prelogar: “Yes. The rates of suicide are striking.”
Ms Prelogar also claimed that gender-affirming care reduced “suicidal ideation and suicide attempts,” whereas Tennessee’s ban would “increase the risk of suicide.”
Later in the hearing, Justice Alito returned to this theme—
“A lot of categorical statements have been made this morning in argument and in the briefs about medical questions that seem to me to be hotly disputed, and that’s a bit distressing. One of them has to do with the risk of suicide. Do you maintain that the procedures and medications in question reduce the risk of suicide?”
Chase Strangio, counsel for the ACLU and a transgender-identified female, replied: “I do, Justice Alito, maintain that the medications in question reduce the risk of depression, anxiety, and suicidality, which are all indicators of potential suicide.”
Justice Alito: “[O]n page 195 of the Cass report, it says: ‘There is no evidence that gender-affirmative treatments reduce suicide’.”
Mr Strangio: “What I think that is referring to is there is no evidence in some… in the studies that this treatment reduces completed suicide. And the reason for that is completed suicide, thankfully and admittedly, is rare and we’re talking about a very small population of individuals with studies that don’t necessarily have completed suicides within them.”
“However, there are multiple studies, long-term, longitudinal studies that do show that there is a reduction in suicidality, which I think is a positive outcome to this treatment.”
Mr Strangio said nothing about the quality of evidence in those studies. And the conflation of suicidality—thoughts of ending one’s life, for example—and suicide attempts is a feature of the manipulative advocacy of the ACLU and many trans rights activist organisations.
At one point, Mr Strangio ventured an unexplained criticism that the Cass review had “only looked at studies up until 2022.”
He didn’t get a chance to elaborate, but probably did not have in mind the first and only rigorous test of the “transition or suicide” formula, published in the British Medical Journal in February this year. This Finnish study of actual suicides in youth gender clinics found that suicide risk was driven by the psychiatric problems of these patients, not by gender distress, and there was no evidence that hormonal and surgical interventions reduced the risk of suicide.
Video: US lawyer Glenna Goldis discusses consumer fraud as another legal vulnerability for paediatric gender medicine
No clown fish in court
In the Tennessee case, Mr Strangio’s pitch to the judges relied on the unambiguous binary of biological sex. Suddenly, sex as a category was no longer nuanced or complicated—it was taken for granted as a bedrock biological reality. Why? Because there is legal precedent for arguing that a law discriminating on the basis of sex demands “heightened scrutiny” by the judges. And heightened scrutiny means it’s more likely that the courts will strike down such a law for infringing the Equal Protection Clause of the Constitution’s Fourteenth Amendment. Framing Tennessee’s law as discriminating on the basis of nebulous trans identity did not offer this forensic advantage.
This litigation aside, of course, the mission of modern trans activism is to establish “gender identity” as a protected characteristic while dissolving biological sex with waffle.
Mr Strangio’s social media history includes the following choice declarations—
“There is no single biological trait that equates to one’s biological sex.”
“That there are typical notions of embodied maleness and femaleness does not mean there is a coherent binary thing called biological sex.”
“Girls who are trans are not males, not biological males, do not have male bodies—just stop.”
In court on Wednesday, Justice Ketanji Brown Jackson, a liberal, seemed especially receptive to the idea that Tennessee’s gender medicine ban discriminates by sex. She offered the hypothetical example of someone “biologically male” who can lawfully be given testosterone to deepen his voice, as opposed to a trans-identified girl prevented from using testosterone for the same purpose. On this view, it is the girl’s female sex that triggers Tennessee’s ban.
Throughout the day’s hearing, Justice Jackson made eight references to biological sex, with not a hint of uncertainty about this as a binary concept.
In March 2022, during her Senate confirmation hearing, Justice Jackson was asked by Senator Marsha Blackburn—a Tennessee Republican—to define the word “woman.”
Justice Jackson: “I can’t.”
Senator Blackburn: “You can’t?”
Senator Jackson: “Not in this context. I’m not a biologist.”
Supreme confusion
We know now that some of the conservatives on the Supreme Court are up to date with Europe’s shift to caution on gender medicine. It’s also clear that trans-driven misinformation about biology has discombobulated some of the liberals.
Tennessee’s challengers argue that hormone suppression for the condition of precocious (or premature) puberty in a boy is exactly the same as hormone suppression to interrupt the normally timed puberty of a “trans boy.” Only the latter is prohibited by Tennessee law, which thereby targets the female sex of the trans boy.
Mr Strangio put it this way: “[I]f you’re someone who was born male and you are going through puberty too early, you want to be able to have a final adult height that is typical of boys. You may receive puberty blockers so that you can develop as a typical boy.”
“Someone who has a sex of female at birth is also receiving puberty blockers so that they can undergo a puberty like other boys. And so, it is the same purpose, and what makes the treatment prohibited for the birth-sex female is their sex.”
But blocking a girl’s naturally timed puberty, then giving her high doses of testosterone, cannot lead to a puberty “like other boys”: the result is not a sexually mature male.2
Justice Jackson’s hypotheticals were also revealing.
She invoked a discriminatory couplet whereby a boy seeks testosterone “to deepen his voice in order to affirm his masculinity because it hasn’t come,” and he is allowed to do so, whereas Tennessee’s lawmakers would deny the precisely the same treatment to a trans boy also wanting the hormone “to deepen her voice in order to affirm the identity that she chooses, which is masculinity.” Again, the suggestion is impermissible sex discrimination.
At first, asked to comment on this curiously expressed parallel, Tennessee’s Solicitor-General Matthew Rice, appeared nonplussed.
After some confused and confusing exchanges with the bench, he arrived at the point—
“[G]iving testosterone to a boy with a deficiency [of this hormone] is not the same treatment as giving it to a girl who has psychological distress associated with her body.
“If you give a boy with a deficiency, testosterone because he has constitutional delay of puberty, that allows him to … develop the reproductive organs associated with being a male.
“If you give [testosterone] to a girl, it renders the girl infertile. So, we have 8- to 12-year-olds being asked… [at this point, Justice Jackson cut him off.]”
Elsewhere in the hearing, Mr Rice got into more detail on the effect of high-dosage testosterone on a female body—
“[It] causes a physical condition, hyperandrogenism [and] that results in clitoromegaly [an enlarged clitoris], atrophy of the lining of the uterus, blood cell disorders, increased risk of heart attack,” he said.
“So, the notion that the risks are the same when you give testosterone to a boy as when you give it to a girl [is] simply not borne out by medical reality.” 3
And so, he said, treatment of a recognised hormonal deficiency is allowed by Tennessee, while a poorly evidenced and medicalised response to gender dysphoria is not.
“Tennessee lawmakers enacted [their ban on paediatric gender medicine] to protect minors from risky, unproven medical interventions,” Mr Rice said.
“The law imposes an across-the-board rule that allows the use of drugs and surgeries for some medical purposes but not for others. Its application turns entirely on medical purpose, not a patient’s sex. That is not sex discrimination.
“The Equal Protection Clause does not require the states to blind themselves to medical reality or to treat unlike things the same, and it does not constitutionalize one side’s view of a disputed medical question. Half of the states, Sweden, Finland, and the UK all now restrict the use of these interventions in minors and recognize the uncertainty surrounding their use.
“These interventions carry often irreversible and life-altering consequences. And the systematic reviews conducted by European health authorities have found no established benefits.
“[W]e’ve had multiple instances in somewhat recent history where we have stuff like lobotomy, eugenics, that had widespread acceptance among the medical community, and the state had to intervene as a regulator to protect the children.”
The Tennessee law also discriminates by age: only minors are off limits for gender clinicians. Even so, Justice Sotomayor was indignant that Mr Rice’s legal logic could also allow a ban extending to adults. She protested: “So, you’re licensing states to deprive grown adults of the choice of which sex to adopt?” At no point in the hearing was there any grown-up discussion of whether or not sex can be changed or adopted.
Look away
For a layman, one of the ironies of Wednesday’s oral argument was the preoccupation with the correct level of judicial scrutiny of a statute, while trans identity came in for minimal examination. Justice Elena Kagan, a liberal, name checked “cis” and “trans” young people as if this was an unproblematic binary.
Often, during the hearing, trans identity seemed no more than a shadow of the biological sex which, outside the courtroom, it is supposed to eclipse. This was no doubt partly a product of the legal tactic adopted by Tennessee’s opponents, conscious of the superior constitutional status of sex as a protected characteristic.
But one hallmark of such a characteristic is immutability and so, there was an opening for some scrutiny of trans ID.4
Justice Alito put the question: “Is transgender status immutable?”
Mr Strangio: “I think that the record shows that the discordance between a person’s birth sex and gender identity has a strong biological basis and would satisfy an immutability test.”
Justice Alito: “Does the category of transgender status apply to individuals who are gender fluid?”
Mr Strangio: “I think that the distinguishing characteristic is to have [a] gender that does not align with one’s birth sex. So, it may include people who have different understandings of their gender identity, but I think it is still the distinguishing characteristic of a birth sex and a gender identity that are incongruent.”
Justice Alito: “Are there individuals who are born male, assigned male at birth, who at one point identify as female but then later come to identify as male, and, likewise, for individuals who are assigned female at birth, at some point identify as male… but later come to identify as female? Are there not such people?”
Strangio: “There are such people.”
Justice Alito: “So it’s not an immutable characteristic, is it?”5
The Supreme Court is being asked to overturn a 2023 ruling in Tennessee’s favour by the US Court of Appeals for the Sixth Circuit. A decision is expected mid-next year, and most court-watchers think it likely that the ruling below will be left undisturbed.
The Cass report notes that puberty blocker drugs (known as GnRH hormones) “have undergone extensive testing for use in precocious puberty (a very different indication from use in gender dysphoria) and have met strict safety requirements to be approved for this condition. The situation for the use of puberty blockers in gender dysphoria is different. Although some endocrinologists have suggested that it is possible to extrapolate or generalise safety information from the use of puberty blockers in young children with precocious puberty to use in gender dysphoria, there are problems in this argument. In the former case, puberty blockers are blocking hormones that are abnormally high for, say, a 7-year-old, whereas in the latter they are blocking the normal rise in hormones that should be occurring into teenage years, and which is essential for psychosexual and other developmental processes.”
The difference between medical reality and trans-wishful science was made stark in a UK case earlier this year in which a paediatric endocrinologist gave evidence that a 15-year-old girl who identified as a boy had been given such a high initiating dose of testosterone that she was at risk of sudden death. And yet, a paediatric haematologist gave competing evidence in the case that the girl’s testosterone level should be considered “effectively normal.” He arrived at this conclusion by comparing her results to the reference levels for an adult male.
On the question how to identify a vulnerable class, Justice Amy Coney Barrett, a conservative, referred to the Sixth Circuit’s view that the trans movement did not seem to have the requisite lack of political power. Writing for the majority, Chief Judge Jeffrey Sutton said: “The President of the United States and the Department of Justice support the plaintiffs [challenging Tennessee’s law.] A national anti-discrimination law, Title VII, protects transgender individuals in the employment setting. Fourteen states have passed laws specifically allowing some of the treatments sought here. Twenty states have joined an amicus brief in support of the plaintiffs. The major medical organizations support the plaintiffs. And the only large law firms to make an appearance in the case all entered the controversy in support of the plaintiffs.”
Justice Brett Kavanaugh, a conservative, also extracted a concession from Mr Strangio that detransition is a thing. The judge’s point seemed to be that striking a balance between the potential benefits and harms of paediatric gender medicine was the kind of policy matter better dealt with by democratically accountable legislators, not appointed judges ill-equipped to arbitrate a dispute within the medical profession.
The Myth of Saving Lives: A Critical Look at Gender Transition Claims
A recent ABC News article commended Dr. Michelle Telfer for “saving the lives of hundreds, even thousands of children without ever picking up a scalpel or treating a disease.” This bold claim warrants scrutiny, especially when considering the long-term outcomes of gender transition as documented in recent European studies.
What Does the Research Say?
Here is a brief summary of five notable studies that shed light on the outcomes associated with gender transition:
1. Amsterdam Cohort of Gender Dysphoria Study (1972–2017)
o Key Finding: While suicide risk in transgender individuals is higher than in the general population, this risk remains consistent across all stages of transition. The study noted no significant increase in suicide risk over time, and in some cases, a decrease in trans women.
2. Long-Term Follow-Up of Transsexual Persons in Sweden (1973–2023)
o Key Finding: Individuals who underwent sex reassignment surgery (SRS) exhibited substantially higher risks of mortality, suicidal behavior, and psychiatric conditions compared to the general population.
3. Suicide Mortality Among Adolescents in Finland (1996–2019)
o Key Finding: Gender dysphoria alone did not predict mortality or suicide among adolescents referred to gender identity clinics. Psychiatric comorbidities were the primary predictors of mortality, and medical gender reassignment did not mitigate suicide risk.
4. Mortality Among Transgender Adults in the UK (JAMA, 2023)
o Key Finding: Transgender individuals faced a 34–75% increased overall mortality risk compared to cisgender individuals.
5. Somatic Morbidity and Cause of Death in Denmark (1978–2010)
o Key Finding: Among individuals who underwent SRS, somatic morbidity increased from 19.1% pre-surgery to 23.2% post-surgery, with a mortality rate of 9.6%. The average age at death was 53.5 years.
Challenging the Narrative
If these studies are valid, the assertion that medical transition “saves lives” is, at best, unsubstantiated. The data suggest a different reality: those who transition often face elevated suicide risks, persistent mental health challenges, and reduced life expectancy.
The notion that transition unequivocally prevents suicide and "saves lives" is not supported by evidence from these peer-reviewed studies.
A Question of Ethics
While adults may choose to undergo gender transition, applying these interventions to children raises serious ethical concerns. Treatments often include off-label use of puberty blockers, cross-sex hormones, and irreversible surgeries, all for a condition diagnosed as a mental health disorder (gender dysphoria) in the DSM-5.
History provides a cautionary tale with the now-discredited practice of frontal lobotomies—another invasive intervention once considered a solution to mental health conditions.
Conclusion
The complexity of gender dysphoria and the risks associated with transition demand a careful, evidence-based approach. To claim that transition unequivocally “saves lives,” particularly in children, ignores substantial evidence to the contrary and undermines the need for robust, ethical medical practices.
The problem with the use of suicidality as an endpoint in assessing the efficacy of the affirmative model is that it relies on the stated intention of the patient. It appears that most of these patients come to clinics having learnt from the internet that the best way to convince their parents and the doctor to consent to give them the puberty blockers is to threaten suicide or to at least say they harbour suicidal thoughts.
Once they have succeed in getting the treatment they obviously will then say initially that those thoughts have gone.
It is only with long term follow up that we get the true picture.
And it appears from Dr Keane’s excellent summary that in fact long term follow up shows no reduction but in fact an increase in suicidality.