The Supreme Court Goes Full TERF [TEASER]

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Transcript

Michael: Peter.

Peter: Michael.

Michael: What do you know about the Supreme Court's Trans Rights decision?

Peter: All I know about the Supreme Court is that someone should do a podcast about how much it sucks.

[If Books Could Kill theme]

Michael: So, as you may have heard, the Supreme Court recently put forth, put down a decision on Trans Rights Skrmetti v. America. What is it? 

Peter: Yeah, it's Skrmetti v. America. Goddamn.

Michael: Skrmetti v.-- [crosstalk] 

Peter:  You know nothing about the Supreme Court, buddy. 

Michael: Trans people v. America. 

Peter: It's United States of East Skrmetti.

Michael: And we thought that we would talk about it a little bit because Peter has thoughts and feelings about the Supreme Court. [Peter laughs] We're basically doing a 5-4 episode. I am the Rhiannon and Michael.

Peter: It's already confusing to people that I host two podcasts with two Michaels, and this is only making things worse. 

Michael: [laughs] And we're going to keep covering Supreme Court decisions also on this show.

Peter: And I'm also going to do a Skrmetti episode for 5-4. We're about to record it as soon as Rhiannon gets back home from Egypt. So, it is going to be confusing for subscribers to both.

Michael: Peter is also worried about spoiling the 5-4 episode [laughs] by saying the same thing, but I don't think that's a concept that exists in podcasts.

Peter: This is like if I pitched you on some health bull shit. 

Michael: Yeah, I don't care. People want to hear the same thing. That's podcasting. You want to hear the same thing over and over again. This is why I listen to podcasts. [Peter laughs] Also, I was going to be reading and skeeting about this nonstop anyway, so it's like I might as well channel that into something vaguely productive.

Peter: At the end of the day, we have to turn whatever your weekly obsession is into an episode.

Michael: I know, I know. [laughs] 

Peter: Not just because the episode would be good exactly. But because you need more than one outlet. You need the episode to really round out your meltdown.

Michael: It also stops me from skeeting because I'm like, “Oh, I don't want Peter to see this and spoil it.” Although I think you muted me years ago, so it doesn't really matter. [laughs]

Peter: [crosstalk] make a joke about whether I should mute you. 

[laughter] 

Michael: Okay, so we are going to talk about the Skrmetti decision eventually. But first of all, I just want to talk about the series of events that leads to the legal case. The whole thing starts in 2018 when the Vanderbilt University Medical Center in Nashville opens a transgender youth center and starts seeing patients. As with all these clinics, this starts getting targeted by right wingers. There are a couple little posts in random places about like, “Ah, this clinic is like doing things to kids, whatever.” Nothing really catches fire until September 20th of 2022 when the clinic is targeted by a Twitter thread by Matt Walsh, who's like a right-wing psychotic influencer. We are going to peruse the Twitter thread, Peter. 

Peter: Cool. I'm excited. This is great. 

Michael: We love going on X. 

Peter: This is from September 2022, Matt says. “Breaking.”

Michael: Breaking. 

Peter: “My team and I have been investigating the transgender clinic at Vanderbilt here in Nashville. Vanderbilt drugs chemically castrates and performs double mastectomies on minors. But it gets worse. Here is what we found, let's start at the beginning.” 

Michael: He's like, buckle up chuckle fucks. Here's a threat. 

Peter: “Me and my team, three 21-year-olds.” 

Michael: [laughs] Also investigating is like, we've been googling things that the medical center puts out so that we can take them out of context. 

Peter: He says, “Vanderbilt opened its Trans Clinic in 2018. During a lecture the same year, Dr. Shayne Taylor explained how she convinced Nashville to get into the gender transition game. She emphasized that it's a big moneymaker, especially because the surgeries require a lot of follow ups.” 

Michael: They did this at the urging of Big Pharma. They are doing this for pure profitability. We are going to watch this clip now. 

Peter: Okay. 

[video starts]

Dr. Shayne Taylor: Some of our BUMC financial folks in October of 2016, starting a couple years ago, put down some costs of how much money we think each patient would bring in. And this is only including top surgery. This isn't including any bottom surgery. And it's a lot of money. These surgeries make a lot of money. So, female to male chest reconstruction can bring in $40,000. A patient just on routine hormone treatment, who I'm only seeing a few times a year, can bring in several thousand dollars. That requires a lot of visits and labs. It actually makes money for the hospital. Now these I got from the Internet, but it's from the Philadelphia Center for Transgender Surgery, which does a lot of surgery for patients. I give you an idea of how much these bottom surgeries are making. 

I think this has to be an underestimate. This is for a vaginoplasty. They're quoting roughly around $20,000 for a vaginoplasty, but that doesn't include your hospital stay, that doesn't include your postop visits and the female to male bottom surgeries. These are huge money makers. Again, I think this has to be an underestimate. If they're quoting around $20,000 for a phalloplasty. There's been different things that I've read that said it could be up to $100,000. 

[video ends]

Peter: Am I supposed to be, like, offended by this? [laughs] I guess I understand that if you were just listening to doctors talk about how profitable certain procedures are in any context, it'll always feel like a little bit cold or whatever, but I don't know. Matt Walsh doesn't want to socialize healthcare, so until he does, yeah, this is just people talking about the business of healthcare. 

Michael: I would love a system where doctors didn't have to think of this, but the fact that somebody is talking about this is not necessarily disqualifying. Also, she doesn't mention children here.

Peter: Right. 

Michael: Bottom surgeries are essentially not performed on children. 

Peter: Right, right. 

Michael: So, the fact that she's talking about bottom surgeries here makes it very clear that she's talking about adults. I was not able to find this YouTube video. I don't know where they found it. It probably was put onto to the Internet by Vanderbilt itself. I think probably what was going on is the hospital administrators were probably a little skeptical of trans medicine at first. And the way that you get a clinic set up in the American healthcare system is to say, “Hey, did you know this is profitable?” That's what I'm reading into the context. I don't know that because I don't have the full context. 

Peter: Yeah, it's not like, “Oh, my God.”

Michael: Yeah, wow, they're making money. 

Peter: What a revelation? 

Michael: People are paying money for healthcare in America. 

Peter: Right.

Michael: Do you want to read the next one? 

Peter: Vanderbilt was apparently concerned that not all of its staff would be on board. Dr. Ellen Clayton warned that conscientious objections are problematic. Anyone who decides not to be involved in transition surgeries due to religious beliefs will face, “consequences.”

Michael: And there's a clip of another person at a podium giving like a PowerPoint presentation. This one is again an out of context 1 minute and 13 second clip from an academic. 

Peter: What's the consequences thing? 

Michael: I mean, do you want to watch it together, Peter? 

Peter: Yeah, sure. 

Michael: Yeah, sure. Why not? Okay. 

[video starts] 

Dr. Ellen Clayton: If you are going to assert conscientious objection, you have to realize that that is problematic. You are doing something to another person and you are not paying for the cause for your belief. I mean, I think that's a real issue. So, yes, Vanderbilt, if someone has a conscious objection to participating in this sort of surgery, it probably has to accommodate you to the extent that you can find another person who can do your job who doesn't have an objection. Other things of that nature. But I just want you to take home that saying that you're not going to do something because if you're conscientious because of your religious beliefs is not without consequences, and it should not be without consequences. And I just want to put that out there. We are given enormous-- If you don't want to do this kind of work, don't work at Vanderbilt. 

[video ends] 

Peter: Yeah. Okay. So, she's just basically saying objections to this are rooted in bigotry without saying that. I actually feel like the fact that she dances around it makes it sound worse, rather than just being like, I believe that anyone who objects to this is doing so due to bigotry which is correct.

Michael: So, this is a clip from a woman called Ellen Clayton, who is a pediatrician at the Vanderbilt University Medical Center, but she's also a law professor and ethicist. So, the thing to know about this woman is she's not a transgender medical provider. In more than 300 publications, she's only published one thing about LGBTQ people, and it's about privacy stuff. And her specialty recently seems to be AI and LLMs, and before that it was about genetic testing and privacy concerns. So, this is not somebody who does transgender medicine on kids and is like, “Get the fuck out of my OR if you have a problem with it.” 

Peter: Right, right, right. 

Michael: It's not clear that this has any relevance. Another thing you may not notice is that she does not mention the word transgender in this clip because Matt Walsh does not provide basic fucking context to his clips. Or like, “Hey, if you'd like to see the whole thing, here it is.” But behind her on the slide is an article called “The Celestial Fire of Conscience - Refusing to Deliver Medical Care,” which I was able to find. This was published in 2005, and it's an article about abortion. There was this whole movement in the early 2000s where conservatives were claiming conscientious objector status. If you're a pharmacist, you're like, “I object to this. I don't want to give out plan B pills.” And then some blue states passed laws saying, “No, you have to actually do your job. If you work at a pharmacy, you can't do this shit.” And then red states were like, “No, no, we're going to protect conscientious objector status.” 

Peter: Right. 

Michael: And this went back and forth in the early 2000s, but Matt Walsh does not give us a year when this clip is taken from. 

Peter: So, there's some percentage chance that she's actually not even talking about trans healthcare here. 

Michael: I think it's a relatively high percentage that she's actually talking about abortion in this clip because-- [crosstalk]

Peter: Interesting. 

Michael: Because this whole thing of, I declare conscientious objector status, that was a trope on the right around abortion and also stem cells and all this stuff, like George W. Bush era. 

Peter: It's also slightly odd in the trans healthcare context because a lot of the relevant clinics are established for trans healthcare. 

Michael: Exactly. It doesn't make the same sense because it's not like you're a pharmacist where you're like, “Forced” to give out plan B pills. It's like you would affirmatively apply to work in a transgender youth clinic. 

Peter: Right. 

Michael: So, again, we have no context for this clip. I have no clear evidence that, like, 100% chance that she's talking about abortion here, but there is nothing in this clip that indicates she is talking about transgender medicine. And Matt Walsh does not give us any context for this, and it's at least plausible that she would be talking about abortion in this clip. 

Peter: Well, Ellen, if you're out there and you're a lesbian, we know you're listening. [Michael laughs] If you're straight, you have a child who listens. I know it. The rightwing ecosystem operates in large part out of just locating clips like this. Right? 

Michael: Yeah, yeah. 

Peter: My sincere guess is that you could never identify a policy or practice of doing this at the clinic.

Michael: I also think it's very typical of the patterns of conspiracy movements that we talked about in the lab leak episode. Again, the core claim of this entire movement is that large numbers of children are being rushed into medications and surgeries without assessment. 

Peter: Yeah. 

Michael: The first clip here is just like, “Clinics make money.” The second clip is “If you question it, you'll get fired.” 

Peter: Right. It's just a conglomeration of things that sound bad in a vacuum.

Michael: And we're not going to keep going. But then, his next tweet is something about how-- [crosstalk] 

Peter: Well, I feel like we should, because the next one is hilarious. 

Michael: Okay. 

[laughter] 

Michael: Okay. Do you want to read it? Do you want to read it? 

Peter: Yeah. He says, “In case the objectors hadn't gotten the memo, Vanderbilt unveiled a program called Trans Buddies. The buddies are trans activists from the community who attend appointments with trans patients, monitoring the doctors to guard against unsafe behaviors such as misgendering.” it's literally, just someone who is trans will attend appointments with you and, help guide you through it or whatever. 

Michael: Help you. I mean, also, doctors are oftentimes really transphobic. And so, having someone there who can be like, “Hey, can you please show respect to this person?” I don't think that's totally unreasonable. And again, this is also not about children.

Peter: Well, the next tweet says “Vanderbilt makes their Trans Buddies available to children too. They make a lot of “services” available to children, including chemical castration. Though at some point in the last month, they removed explicit admission of this fact from their site.” Here is the archived screenshot. And the screenshot is just that gender-affirming hormone therapy [Michael laughs] is one of the treatments offered.”

Michael: There's nothing secret about the fact that this clinic is offering hormones and puberty blockers to kids. 

Peter: Right? 

Michael: You can call and make an appointment. It's like a normal part of the healthcare system. But again, conspiracy movements run on this, like, “Ooh, the information is being suppressed. They don't want you to know kind of thing.” 

Peter: I would also point out that this is not chemical castration. 

Michael: No, of course not. Jesus Christ. I mean, we're skipping over because I'm so used to this shit. [Peter laughs] It's like, “Yeah, they're mutilating kids, castrated kids.” I'm like, “Yeah, yeah, whatever.” [laughs] This is just like how this movement talks. 

Peter: So, holistically, he starts off basically saying this clinic is doing all this stuff to minors. And then he just puts a bunch of clips together of things that a median right winger might find distasteful. Someone talking about money, someone saying that they think religious objections are problematic or bigoted, the Trans Buddies program. [laughs] And it's presented as if he's like, building a case for what he originally described. But what he originally described is a clinic that, “Drugs chemically castrates and performs double mastectomies on minors.”

Michael: Looking at this is like, completely deranged. This is immediately picked up by the governor. So, on September 28, the governor of Tennessee, Bill Lee, calls for an investigation into the clinic and the House GOP. The state House is controlled by Republicans. They issue a letter demanding answers from the clinic on October 7th. So, this is just like two weeks after the original tweet thread by Matt Walsh. The clinic itself issues a letter responding to the accusations. In the letter, they note, as this always fucking happens, Peter. They note they only perform around five top surgeries per year. This is a relatively rare thing. All of the people who got top surgeries were over 16. All of them had parental consent. 

This happens over and over again with this, that there's these whistleblowers coming forward, and then clinics release extremely basic data, and they're seeing a number of patients in the single or double digits. They don't say so in their letter, but according to later legal filings, it appears the clinic only ever treated 106 patients. 

Peter: Okay. 

Michael: Because the AG of Tennessee, Skrmetti, the famous Skrmetti of this Supreme Court decision, demanded that they turn over all of their patient records. So, again, the whole narrative is that large numbers of kids are receiving irreversible medical procedures without assessment. They can't even establish there are large numbers getting this care at all.

Peter: What's frustrating about this is that the right wing doesn't care about these numbers because their concern is not that children are being rushed into it. Their concern is that they don't believe trans people are real.

Michael: Which they're very on the record about. Yes. 

Peter: Yeah, yeah. And so, they're trying to crack down on it and draw attention to it. And the fact that this is a very tiny minority of people doesn't dissuade them at all. 

Michael: Yes. 

Peter: Where the disconnect is with, like, media coverage and the willingness of more moderate politicians to bite on this.

Michael: Yeah, yeah, yeah. 

Peter: Like, even if you think that it's outrageous that trans girls can compete in sports with cis girls in high school, it's happening so little that, like, it should occupy basically none of your mind space. I just don't understand how anyone operating in good faith in the political center could possibly spend their mental energy on this.

Michael: I think this is really the distinction between the far-right version and the centrist version, because to the far-right, every trans person is just lying, deranged, fetishist, weirdo. According to the centrists, some trans people are real, but some trans people are lying. And the problem with this field is that it's not separating the real trans people from the fake ones. 

Peter: I think the New York Times concern is the social contagion argument, the idea that the left is so out of control that young kids are essentially being brainwashed into believing that they should transition. 

Michael: And is only the correct course for a very tiny number of kids who say that they're transgender. This is a big part of that narrative. Yeah. 

Peter: And it must be extremely tiny, right. Because they are willing, at the end of the day to endorse laws that ban it for all kids.

Michael: For everybody. 

Peter: And I think that it just aligns very nicely with the New York Times view of the world, which is, “Yes, reactionaries are extreme in various regards. They're unserious and in fact, they're not to be taken seriously.” But the real problem with American politics is that the left is out of control. And without the left being out of control, the right wouldn't really matter because a moderate consensus would emerge. It's the left that's preventing the moderate consensus.

Michael: Yeah.

Peter:  The right is a clown show off in the distance even when they are in power. 

Michael: Yeah. We were originally going to do a COVID mistakes bonus episode or just like, what were the actual mistakes? 

Peter: Yeah, originally everyone Michael was like, “What if we did a fourth consecutive COVID episode?” [Michael laughs] And I was like, “Michael, I'm not going to say no, but please.”

Michael: [laughs] I also was just so-- I started reading for it. I was like, “I'm done. I cannot keep doing this.” But one of the articles I came across was a New York Times-- allegedly serious New York Times article about the mistakes during the pandemic. And the number one mistake was it was like, “Vaccines, yes, they work. But activists exaggerated the impacts originally.”

Peter: It's the number one mistake. 

Michael: It saved 20 million lives. But also at first, people were like, “Oh, yeah, it'll save, even more.” It's like, “Why is this the important thing to stress as like a mistake?” Millions of people on the right were saying the vaccine didn't work. That's the mistake. People who slightly exaggerated don't fucking matter. 

Peter: The idea that the number one mistake during the pandemic was insufficient vaccine skepticism [Michael laughs] is fucking hilarious. 

Michael: But it's a perfect distillation of that ideology. Isn't it actually your fault for exaggerating very slightly the benefits of vaccines? That's why we have those antivaxxers. 

Peter: Right? 

Michael: So, anyway, we get the letter from the House GOP, the clinic responds and is like, we only have five patients. But also, out of an abundance of caution, they close down the gender clinic. 

Peter: Okay. 

Michael: But of course, that doesn't matter. 

Peter: Yeah, yeah, yeah, yeah. 

Michael: So, three weeks later, Matt Walsh hosts the rally to end child mutilation in downtown Nashville, and a bunch of Republican lawmakers show up and give talks. But then in January of 2023, they come back for the legislative session and Tennessee Republicans who have already passed a ban on drag shows, they already passed a law in 2021 banning hormones for prepubescent kids, which doesn't make sense because they're not really doing that for prepubescent kids but whatever. They pass a law protecting teachers who refuse to use the correct pronouns for kids. They're just on anti-LGBT crusade. And as part of that, in March of 2023, they pass the law in question that ends up at the supreme court, which is SB1, State Bill 1. The law is very straightforwardly discriminatory. 

So, in the summary, it says “It is the purpose of this chapter to prohibit medical procedures from being administered to or performed on minors when the purpose of the medical procedure is to enable the minor to identify with or live as a purported identity inconsistent with the minor sex or to treat purported discomfort or distress from a discordance between the minor sex and asserted identity.” 

Peter: So, this is what's interesting about the law is that it doesn't actually prohibit any medical procedures per se.

Michael: It's only the purpose of the medical procedure. 

Peter: It only prohibits medical procedures that are intended to help with medical transition. It's just sort of bizarre. I mean, the law itself is basically openly transphobic. It says that there's a section in the beginning of a lot of laws that's basically like, “Here's why we're doing this.” It's the findings in this case. And part of what they say is that they want to encourage kids to appreciate their sex, their biological sex. 

Michael: I like that part too, yeah. 

Peter: It's straightforwardly like, we're doing this to ensure that biological sex and gender identities are legally aligned. That it's one thing. 

Michael: Yeah, yeah. 

Peter: It's very obviously transphobic. I don't even think that the authors of it would disagree with that. 

Michael: No, it's really obvious. 

Peter: It's very weird that we're going to segue into the Supreme Court arguing that this is not discriminatory.

Michael: Because the majority of people who get puberty blockers every year are cisgender kids. It's for precocious puberty. Kids who go through puberty early, can have physiological effects. And so, we give it to, I think it's like three to five thousand kids a year. Cisgender kids are getting puberty blockers. And so, it renders completely moot all of these alleged concerns about, like, “Ooh, the bone density. Ooh, we don't know, the long-term effects.” All the Big Pharma stuff. All of the arguments that they make against puberty blockers theoretically would also apply to cisgender kids getting puberty blockers. But when it comes to legislation, they're like, “Oh, no. Puberty blockers only affect your bone density if you're doing it because you're trans.” 

The thing that really jumped out to me about this little section of the law where it's like “We find at the beginning, just like laying out the factual basis is that the law itself quotes Matt Walsh.” So, it says “The legislature finds that healthcare providers in the state have sought to perform such surgeries on minors because the surgeries, “Make a lot of money”, are huge moneymakers not necessarily because the surgeries are in a minor's best interest.” Straight line from a fucking Matt Walsh tweet to actual text of legislation.

Peter: I think you'd be surprised just reading your median piece of state legislation, how stupid they tend to be. The average state legislator is dumber, I believe, than the average baby. 

Michael: Then we get into the legal process, which I do not understand. [Peter laughs] The law passes in March of 2023. There are now 26 states that ban gender-affirming care, which is really fucking bleak. And then there's an injunction in July of 2023. But then it's granted and then overturned and please take over, Peter. I have no idea what-- it's stayed and then unstayed or something. I have no idea what's going on. 

Peter: Yeah, you got it. I want to keep going. 

Michael: No.

[laughter] 

Michael: I was like, I can stop researching now because Peter will interrupt me and take over from here. 

Peter: The main thing to know is that there's a lower court that halts the implementation of the law and basically says, “The medical evidence is on the other side.” 

Michael: Right. 

Peter: “The weight of the evidence here is that this is not very harmful. There are equal protection concerns here. We're halting the law.” The case rises up to the Supreme Court, and then the Supreme Court's all over it, folks. They fuck it up. You get a majority opinion written by John Roberts. There's like three concurrences, two dissents. Nightmare reading situation for podcasters. 

Michael: I know. It was 119 pages. I was going to read all of it, but then I was like, “Ah, I don't know about this.” 

Peter: There are Supreme Court pages, though. So, it's tiny. 

Michael: Yeah, they're weird. The margins are weird. 

Peter: That's a way that we gatekeep, [Michael laughs] you know, the basic challenge here was just like, this is an equal protection violation. It's discriminating on the basis of sex, on the basis of transgender status. And then the hoops that the court jumps through to say that it's not are-- just preposterous. 

Michael: Yeah, walk me through this, because I didn't read this part of the decision because I don't understand. 

Peter: So, it's well established that you can't discriminate based on sex except in very narrow circumstances. And laws that discriminate based on sex are subject to high levels of scrutiny. And so, a big part of this analysis is, well, does this discriminate based on sex, technically? And Robert says that the law only, “Prohibits health care providers from administering puberty blockers and hormones to minors for certain medical uses.” So, like we were saying earlier, what he's saying is, like, “Well, this is discrimination based on age and the medical use, but not sex.”

Michael: Oh.

Peter: There is so many obvious things wrong with this. But the point that Sotomayor makes in her dissent is just, like, there are circumstances where the same treatment, the same medical procedure or treatment is either legal or illegal, and the determinative factor is the sex of the recipient.

So, if that's not discrimination based on sex, then what are we talking about here? Also, it's awkward that, he's like, “Well, it's not discrimination based on sex. Its discrimination based on medical use.” But the medical use that he's talking about is the use of treatment that is, “Inconsistent with sex” that's in the law. 

Michael: Okay. 

Peter: And then when confronting that language, he says, “Well, that's just a mere reference to sex. That doesn't mean its discrimination based on sex.” This is basically incoherent. 

Michael: They said that its discrimination based on sex, but that part doesn't count. 

Peter: Yeah. He just waves it away. 

Michael: Yeah. 

Peter: I'm trying not to dive too deep into the analysis because there's a lot of constitutional bullshit here. 

Michael: I love it.

Peter: You don’t. 

Michael: That's why I listen to 5-4. 

Peter: Yeah. And you can listen if you want to hear it.

[laughter]

Michael: Fuckoff.

Peter: The other part of his analysis that I'll point out that I thought is particularly bad. So, he says, “Minors of any sex may be administered puberty blockers or hormones for other purposes.” So, he's basically saying this doesn't discriminate based on sex. Both boys and girls can access this treatment for as long as it's for other purposes.”

Michael: Oh Yeah. That's like during the gay rights movement. 

Peter: Exactly. 

Michael: They said, like, “You do have the right to marriage. You can marry a woman anytime you want.” 

Peter: Exactly. 

Michael: That's not what that means. I want to marry someone I love. 

Peter: It's the same exact thing. This is also very famously, this was what the lower court in Loving v. Virginia held. Loving v. Virginia was the case from the 60s that legalized interracial marriage across the country. Originally, the law banning interracial marriage had been upheld by the Virginia court using the exact logic. They were like, it's not discriminatory. Everyone, of every race is free to marry someone of the same race. [Michael laughs] Not discriminatory. 

Michael: That's great. You can marry any white person you want. What are you complaining about? 

Peter: Flawless logic. [Michael laughs] And then there's a second part of this decision that's basically. He's like, “All right,” so it's not discrimination based on sex, but maybe it is discrimination based on transgender status. 

Michael: Very obviously.

Peter: The court has never confronted the question of whether transgender status is subject to a higher level of scrutiny. It never actually reaches that question because he decides that it's not discrimination based on transgender status.

Michael: How is that possible? 

Peter: Basically, the same reasoning. He says, SB1 does not exclude any individual from medical treatments on the basis of transgender status. Rather it removes one set of diagnoses, gender dysphoria, gender identity disorder, and gender incongruence from the range of treatable conditions. So, basically, just being like, “Well, it's not discrimination against transgender status. It's discrimination against medical treatments that only transgender people need.” 

Michael: Oh, my God. Because what is the distinction between a transgender person and someone who's been diagnosed with gender dysphoria? Because to get any medical treatment, you have to be diagnosed with gender dysphoria. 

Peter: Yeah. 

Michael: So, there's no difference between those two groups in a medical setting. 

Peter: I mean, it's just ridiculous. And, you can imagine this in other contexts. Where it's like, “Well, oh, it's not discrimination. It's not discrimination against white people. It's discrimination against people who have light skin.” 

Michael: Right. Or people who cannot clap along when they're at a concert. [Peter laughs] It's also funny because the law could not be more explicit of this is banned when you are transgender. The same thing. 

Peter: That's the thing, is you just need to zoom out with this stuff. And it's like, “The whole point of this law is to target transition care for transgender youth.” You could imagine a Supreme Court case where the argument is, “It's not discrimination against transgender status because transgender status is fake, in fact, is probably their authentic position.” 

Michael: Yeah, yeah, yeah. 

Peter: But he tries to avoid that. And in doing so, creates this completely absurd argument. And then you get follow up from the other conservatives, some of which, like Amy Coney Barrett filed a concurrence where she basically is like, “Well, that's absurd. This is obviously discrimination based on transgender status.” 

Michael: And she's like. And I like it. We should do that.

Peter: Yeah. But her argument is that should not be subject to a higher level of scrutiny because there's no history of legal discrimination against transgender people. 

Michael: Okay. 

Peter: The ACLU brought up laws against crossdressing going back centuries. And, of course, those laws predate the concept of transgender in the broad social vocabulary. Not to mention what the dissent brings up is just like, “Well, when does history start? Because there's hundreds of these laws now.” The transgender people are being banned from the military. So, I don't get it. Like that stuff doesn't count because it's too recent? 

Michael: Some of the analysis that you guys have come back to over and over again on 5-4, because you say the same thing over and over again, because that's podcasting, [Peter laughs] is this idea that a dumb person looking at this would be like, “Oh, yeah, they hate transgender people, and they're legislating against transgender people.” 

Peter: Yeah, yeah. 

Michael: But a smart law professor would be like, “Oh, actually, it's about the equal protection clause of the second order of the, whatever. It's like, “No,” the stupid person is closer to being right here. 

Peter: Yeah, yeah, yeah. 

Michael: But, of course, the whole point of the Supreme Court is doing this Calvinball thing where they're like, “Okay, what magic words can we use to make this sound sort of reasonable?”

Peter: I mean, yeah, they're some of history's great bullshitters. And this one is just an embarrassment. To say this is not discrimination based on transgender status is so on its face absurd that, like, again, you don't need to peel it back too much. Everyone knows what this law is. The funniest concurrence we discussed earlier, and I feel like it's your domain. It's the Clarence Thomas concurrence.

Michael: Yeah. 

Peter: The whole point of his concurrence is basically a lot of prestigious medical organizations weighed in to say, “Hey, all of the evidence supports this sort of treatment.” And he's like, “We shouldn't be listening to these fucking eggheads.” 

Michael: Yeah. Did you know that they're actually all wrong, these doctors and medical organizations? 

Peter: They are corrupted. We're in the roadkill eating era now. 

Michael: Yeah, yeah, yeah, yeah. 

Peter: So, I don't need the AMA to tell me what's right or wrong, I'll be eating dead birds off of my property. 

Michael: Okay, so the constitutional stuff, I guess we'll leave for the 5-4 episode or like you guys can dive into that more. 

Peter: Thank you. 

Michael: [laughs] Personally, I don't find all that stuff. I mean I do find it interesting, but mostly as rhetorical maneuvers. Because of course you could look at the same set of facts and come to the opposite conclusion. Like this is all the fucking Supreme Court does. 

Peter: Right. 

Michael: I'm much more interested in like the empirical stuff. And so, the main opinion by Roberts doesn't really get into the empirics. It's not for judges to decide whether gender-affirming care works. Then it gets to the Clarence Thomas concurrence and he's like, “Oh, it is for me to decide.” I'm here to decide whether this stuff works. And then his whole concurrence or like the vast majority of it is just like attempting to be a little systematic review. So, for the next little segment of the episode we're going to dive into his concurrence and some of his thoughts about the evidence base for this treatment. So, here is the part where he lays out his overall argument. I'm going to send this to you in case you don't have it memorized. 

Peter: Yeah. Unfortunately, I've read this concurrence like five times now because I'm writing about it and doing the 5-4 episode and this one. And usually, I offload Thomas Concurrence's to 5-4, Michael. And he has to deal with the trauma. 

Michael: It is shocking how much this is just like Facebook uncle shit. 

Peter: Yeah. And what I always think about Thomas, he's a very interesting window into the American right because he is high IQ Facebook grandpa. 

Michael: Yeah, yeah, yeah, yeah. 

Peter: He's like the best they can do. 

Michael: Yeah. 

Peter: And it's still so fucking stupid. 

Michael: His brain is cooked, dude. 

Peter: He says, “There are several problems with appealing and deferring to the authority of the expert class. First, so called experts have no license to countermand the wisdom, fairness or logic of legislative choices.” This by the way, classic Supreme Court move. Whenever you're upholding a law, you're like the state legislator, the wisest creature in our nation. [Michael laughs] And then when you're striking a law down, you ignore that and you're like individual liberty, the most beautiful thing in our nation. What our nation is founded upon. He says, “Second, contrary to the representations of the United States and the private plaintiffs, there is no medical consensus on how best to treat gender dysphoria in children. 

Third, notwithstanding the alleged experts view that young children can provide informed consent to irreversible sex transition treatments, whether such consent is possible is a question of medical ethics that states must decide for themselves. Fourth, there are particularly good reasons to question the expert class here as recent revelations suggest that leading voices in this area have relied on questionable evidence and have allowed ideology to influence their medical guidance.” 

Michael: We wouldn't want ideology anywhere near this. 

Peter: So, yeah, I'm interested to hear your thoughts. I've also gone through this and my overall impression of his concurrence. I think it's important to contextualize this. Many, many leading medical associations submitted briefs in this case saying gender-affirming care safe and effective. And so, he's frustrated by the idea that this makes a consensus. Why does all the prominent major organizations coming out one side of this mean that there's medical consensus even though the Koch funded freak organizations founded in late 2019, disagree?

Michael: Yeah, another thing that stuck out to me is he keeps saying so called experts or self-described experts. It's like if you're like a gender health person who works in a gender health clinic and you're like licensed to do gender health, I don't know if that's a so-called expert or like a self-appointed expert. That's just like you are objectively an expert. 

Peter: Thomas cites research from these like right wing affiliated researchers, right?

Michael: Yeah, exactly. 

Peter: He isn't so skeptical of expertise when it supports his point, but it is telling that you can look through his concurrence and the majority of the substantive citations are to op-eds-[crosstalk]  

Michael: It's wild. I know. 

Peter: -and newspaper articles. He cites Pamela Paul.

Michael: It can do it numerous times, more than once. It's fucking crazy. He cites the New York Times constantly. Also, my favorite citation was it's like- tucked into one of these paragraphs. The way they do citations is bananas. It's like, citation, like they don't even do parentheses. It's insane. One of the things he says like “Oh, puberty blockers don't work. And then the citation is to like frontiers in gender studies or something. Whenever you see frontiers in the title of a journal, it's like, “Yes, go to that link, dude, you're about to read some of those banana shit you've ever seen.

Peter: The source he uses to say that puberty blockers are not effective or at least haven't been shown to be effective is an article where the conflict-of-interest statement is about as long as the abstract. [Michael laughs] And that's because almost everyone involved is affiliated with the society for evidence-based gender medicine, which is like this right-wing group founded just like a few years ago by William Malone, who does not seem to believe that trans people are real. 

Michael: Right. 

Peter: So, it's just like, all right, come on, man. 

Michael: It's basically like, we did take funding from Sauron and Saruman, but we don't think that it affected our findings. It's just like, “Okay.” 

[laughter]

Michael: So, yeah, I mean, the next section of this, he spends some time talking about the constitutional stuff which he only spends like a page or two on and we're going to skip. 

Peter: Yeah. 

Michael: He then gets into this alleged factual description of how youth transition works. He's like, “These are the stages.” And he says calling it gender-affirming care is a sanitized description that obscures the nature of the medical interventions at issue. But, not really, I mean, these are like pills that people are taking or injections in the case of puberty blockers. So, I don't know how sanitized that is. 

Peter: He's just saying, “This is liberal bullshit.”

Michael: Yeah, yeah. 

Peter: We should call it the homo switch. 

Michael: So, he goes over, I mean, he just makes the same like TERF arguments that you see all the time that like, puberty blockers are fine for cisgender kids, but it's totally different when you're trans because it's like it's off label. And then he gets into this whole thing of like, “We don't know whether they're reversible.” The reversibility of puberty blockers is the entire point of puberty blockers. If they weren't reversible, we would not have been giving them to cisgender kids for like three decades now. 

Peter: You wouldn't really know it if you're not familiar with the research. But he's trying to draw a clean line between the mountains of evidence we have about puberty blockers for the treatment of precocious puberty and the relatively small amount of evidence we have for treatment of gender dysphoria. To say, well, we don't know the long-term effects. That's functionally irrelevant because we do know about the long-term effects because a ton of people have used these medicines. There have been a ton of studies just in a slightly different context. 

Michael: Right. 

Peter: And there's no reason to believe that we've seen that the long-term effects would be different when the treatment is for gender dysphoria. 

Michael: And then he runs through hormones. He then gets into surgery where he of course includes this like lurid description of the surgery.

Peter: Classic Thomas.

Michael: What stood up to me is that he says, “Four boys, surgical interventions include removal of the testicles, blah, blah, blah.” And then he gets into this long description, but it's like, boys, these surgeries aren't really being performed on minors. But he of course uses the term boys throughout to imply that young kids are having their genitals removed constantly. 

Peter: Yeah. 

Michael: Then he gets into the ongoing debate over the efficacy of sex transitions and how other countries-- He has a whole section about how like other countries are now pulling back from this care. But of course, if you look at any one of those individual countries, it's like, “Oh, yeah, they're in the same moral panic that we are.” 

Peter: Right, right, right. 

Michael: He then of course cites the cast review, this is the UK review that is like if you pick any fucking page at random, it's so obvious that this is a political document. It says that kids are becoming trans because of porn. But then what really stood out to me was this like weird talking point that you find on the TERF, right. So, I'm going to send you this. 

Peter: Among other things, the Cass Review determined that the evidence the researchers found did not support the conclusion that hormone treatment reduces the elevated risk of death by suicide among children suffering from gender dysphoria. “The evidence does not adequately support the claim that gender-affirming treatment reduces suicide risk.” 

Michael: This is one of the canonical examples of the overreach and mendacity of “trans activists” they call this life saving care. But there's no evidence that it reduces suicide. On one level, it's true. When you look at the actual studies of gender-affirming care, they can't find that the number of completed suicides is lower in the treatment groups than the control groups. So, it's like, “Boom, gotcha.” But the issue with this, I mean, I was going to say, like the problem with this, but this is actually like a blessing and a good thing is that completed suicides by teenagers are extremely rare. So, there are 42 million Americans between 10 and 19, 42 million kids. There are around 2,800 suicides among adolescents every year. So that's 1 in 15,000 teenagers kills themselves every year.

Their rates are much higher among trans kids. But if you wanted to do a study large enough to show, okay, the control group had four suicides and the treatment group had two suicides. To prove that gender-affirming care reduces suicides, you would need like tens of thousands of children in these studies. 

Peter: Right. 

Michael: You can't do that because we don't even have enough kids have received gender-affirming care to do a study that large and that long term. Like it's literally impossible to get a large enough study to have statistical significance for suicides. It's very difficult. And so, what the studies actually find is that gender-affirming care reduces depression, anxiety, self-harm and suicidal ideation. Looking at all of that together, people usually use as a shorthand, this reduces suicides. I think that it is totally reasonable to infer from that, yeah, if it reduces suicidal ideation, self-harm and depression, yeah, probably somewhere down the line it's reducing suicides. But the TERF, like weaponized pedantry brigade seizes on this and is like, “Oh, so you're lying? Oh, so you can't prove that it reduces suicides.” 

Peter: The way I think about this stuff is that it's not designed to make a holistic case for the idea that this care is dangerous or ineffective. The idea is to like massage a little bit of institutional trust out of your brain.

Michael: Yeah, yeah, yeah, yeah. 

Peter: When you exit reading the concurrence, you're like, “Yeah, I don't know, I don’t know about all this.” 

Michael: He then gets into this thing of like, whether or not kids can meaningfully consent to gender-affirming care. He has this citation from the New York Times that says “Many physicians in the United States and elsewhere now prescribe puberty blockers at the first stage of puberty as early as age 8.” But like, that's the point of puberty blockers. [laughs] 

Peter: Right. To block puberty.

Michael: Yeah. And like precocious puberty for cisgender kids is for very young children who start to go through puberty. The point of puberty blockers is to be given to very young kids. 

Peter: Someone using puberty blockers who is going through puberty at the median age. We'd have less data on that, on the use of puberty blockers in those circumstances than we do for people who are going through it earlier. Because that's the entire-- [crosstalk] 

Michael: That's the fucking point.

Peter: Premise. That's why we have puberty blockers, right. 

Michael: It's just this kitchen sink thing where they're just throwing in any excuse to cast doubt on this. Regardless of whether it actually makes sense. 

Peter: I think it's important to understand that if you poured the resources into it in terms of like the right-wing money, the journalism.

Michael: Yeah. 

Peter: You could cast this much doubt on basically any medical procedure.

Michael: Completely. 

Peter: You could do it with chemotherapy.

Michael: Or physical therapy. I mean, if you just like subpoenaed 3,000 emails of the National Physical Therapy association, you would probably have weird cranks, you would have like dumb fights. 

Peter: You could find people for whom it was not just ineffective, but counterproductive.

Michael: Completely. 

Peter: Yeah, it would be very easy. And if the New York Times was writing 20 of these articles a year, within a couple years you would have a body of work that could be cited in the Supreme Court's reporter and look authoritative. 

Michael: You would also have public polling showing that like 30% of the population now thinks physical therapy isn't such a great idea. 

Peter: Right. 

Michael: Like you could easily gin up a moral panic around anything if you subjected it to this much scrutiny. 

Peter: Absolutely. 

Michael: The next section of this concurrence is just a series of really weird conspiratorial claims about WPATH, The World Professional Association for Transgender Health. They have these standards of care that give guidelines for how should you perform care, how long should people be assessed, whatever. It's a massive document. It's a year’s long process to update it. Kind of like the DSM-5, like they update it periodically. The Standards of Care 8 has just come out and right wingers have become obsessed with this organization and the standards of care and have done like the same thing we've seen with the lab leak, where they just file a shitload of lawsuits and FOIA requests and they try to get as many background documents as possible. 

So, there's around 3,000 pages of various emails and internal discussions that have now been released and they just gin up narratives out of them. Like they just go through looking for gotchas. Clarence Thomas just repeats a bunch of the talking points that have come out, like these incriminating things that have come out. And also, as we saw with the lab leak is like nothing is actually all that incriminating here. It's mostly just like academics talking academically and people basically acknowledging the fact that they are under sustained assault from the right. 

Peter: This is one of the most interesting things about this, is that a lot of the things that he claims in this section indicate political bias are really the downstream effects of the politicization by the right. He makes it seem like it's all nefarious and it's like “Well, yeah, these organizations are besieged by your freak allies.”

Michael: Exactly. And they know that every single thing that they do is going to be scrutinized in bad faith. The one that I didn't even bother looking through the fucking evidence for is at one point he says one of WPATH's contributors admitted that the WPATH Standards of Care is not a politically neutral document. 

Peter: Right.

Michael: Yeah. [laughs] Like, this is just an acknowledgement of like, “Yes, this is a political issue right now.” And so, yeah, people are going to acknowledge the fact that they're under political attack. It's like he says this as if it's like they admit it. It's like, yeah, they're not stupid. These are adults. 

Peter: He reads that to mean that they are doing science based on their politics. 

Michael: Right. 

Peter: But what it actually is in like 99% of cases is the other way around. 

Michael: Exactly. Yeah, yeah. 

Peter: Like they have a position on what the science says based on their actual expertise and they want the policy world to reflect that. 

Michael: I do believe that climate change is real and I do believe that like public policy should reflect that. Public policy should reduce the use of fossil fuels. 

Peter: Yeah. 

Michael: If you believe something, you would like things to change, to acknowledge it. I think that's what like most of these people are doing is like, “Well, yeah, all the evidence is that it works. So, we would like it to be legal.” Like, we think it's bad to ban a thing that works. And it's like, “Oh, so you're letting political ideology affect your scientific work?” Not really. Like we think science should inform politics.

Peter: What they really want to believe is that the left does this stuff the same way that they do. 

Michael: Yeah.

Peter: The complete dishonesty with which they approach science is a mirror image of the left when it's not. 

Michael: So, we're just going to go through a couple of these. I'm going to try to speed run through these, but let me send you this one, Peter. This is Clarence Thomas talking about WPATH.

Peter: In one instance, the chair of WPATH guidelines committee testified that it was ethically justifiable for the authors of the WPATH 2022 guidelines to “Advocate for language changes in these guidelines to strengthen their position in court.” 

Michael: So, this is based on a super hostile deposition of Eli Coleman, who is one of the people who's on the board of WPATH doing the evidence review. Apparently, there's an email where somebody is saying like, “Hey, right now the draft of the standards of care say that like there's insufficient evidence for gender-affirming care.” I don't know if it's like super smart to say that because like we're under all this political attack. I don't think that's a great idea. And then they like go back and forth. This guy, Eli Coleman is in this deposition with this lawyer who says, “Did you, as chair of the SOC 8 project, consider it ethical and consistent with good practice for the development of evidence-based guidelines for an actively serving expert witness to advocate for changes in language to strengthen his position in court?” Here I'm going to send you the Eli Coleman's answer. 

Peter: The main thing that I would say is that lots of different people, lots of different opinions and everything was listened to. But that was the beauty of our methodology, that we had such a rigorous process of checks and balances so that no one individual would be able to dictate the outcome. It would be heard, but that would not be able to hold sway in the process. And so, yeah, I think that some individuals might have wanted certain things for whatever reasons, but we always stuck to the science and we stuck to a consensus process in arriving at the final recommendations.

Michael: So again, Clarence Thomas says “The chair of the guidelines committee testified it was ethically justifiable for the authors of the guidelines to advocate for language changes to strengthen their position in court.” That's not what this guy's saying at all. 

Peter: Not even a little bit. 

Michael: He's like, “Yeah, people on the email threads said all kinds of things.” 

Peter: Well actually, I mean, I do think that maybe he's saying it's fine for them to advocate for whatever reasons they want. But that the process is rigorous enough that they're going to like end up in an objective place. 

Michael: And also, I mean, any process where you have dozens of academics weighing in on something, you're going to have different views. And like some of those people might say crank shit or might say shit that is out of pocket or might even say like, “We should twist the science for our own goals.” 

Peter: Yeah, yeah. 

Michael: But he's like, well we're hearing from lots and lots of people and we're putting the science first. And so, the fact that someone said something in an email isn't actually evidence that like we've twisted the science to reach political goals. 

Peter: Right. 

Michael: This is also another funny thing about the concurrence is that like there aren't really any quotes or like debunking’s of the actual guidelines. This is very similar to the lab leak stuff where it's all this weird fucking lore about what they're saying in Slack, but the actual document that they produced is totally true. 

Peter: Right. 

Michael: It's like the actual guidelines themselves are very conservative and present evidence. And if the guidelines were lying about evidence, well, surely you would just have like, “Okay, here the guidelines say this, but this is debunked by this extra evidence.” 

Peter: That's why it reminded me so much of like, conspiratorial bullshit. Because if the output of this supposedly politically corrupted process is inaccurate scientifically, surely you can just point to that.

Michael: Yeah, that would be easy, yeah. 

Peter: But no, you can't. All you can do is pull stray quotes from depositions. 

Michael: So, speaking of which, here's the next accusation. 

Peter: One of the guidelines contributors was more direct. “My hope with these guidelines is that they land in such a way as to have serious effect in law and policy settings.” 

Michael: This one is two people debating what they should call the chapter that gives population estimates of how many trans people there are. What is the population rate? And so, one person says we should call the chapter population estimates. And then the other person is like, “Well, there's already this big fight about scientific uncertainty and we're being accused of having no evidence for our claims.” So, I don't think that calling it estimates is a great idea because that sort of plays into that narrative. So why don't we call it population health research? And then the other person is like, “No, but they are estimates like this.” We are estimating the population to the extent that we can. And so, in the end, they call the chapter population estimates. Like that's all that happened. 

Peter: Okay, hold on. So, am I crazy? These guidelines would serve two primary purposes. One as guidance for people in the medical profession, two, for like, regulators and lawmakers. 

Michael: Yeah, exactly. 

Peter: This just feels like a very obvious part of like, what these would be for. And the idea that they would have an impact in law and policy settings is just like, very natural. Again, this is just like Thomas getting the causation wrong. 

Michael: The other one that he gets into is a footnote about WPATH holding back research. 

Peter: WPATH's deference to political pressure is not the only high-profile example of ideology influencing medical conclusions in this area. Recently, an influential doctor and advocate of adolescent gender treatments declined to publish a long-awaited study of puberty blocking drugs that suggested her initial hypothesis about the drug's efficacy had not worn out.

Michael: So, this is pulled entirely from a New York Times article that just like, ginned this controversy out of nothing. This New York Times author speaks to Johanna Olson Kennedy, who is a gender-affirming care doctor in LA who was doing a study on puberty blockers where they gave kids puberty blockers and they followed them over two years. Despite getting a grant for this work nine years ago, the results of her study have not been published. And when she's asked by the New York Times about this, she says, “I don't want our work to be weaponized. It has to be exactly on point, clear and concise and that takes time. She also mentions that their funding has been cut.” This is before the Trump cuts, this is previous cuts to NIH funding. 

And so, it's sort of like, yeah, we haven't published yet, and I want to make sure that our findings are accurate and completely watertight before we publish them. But this is framed by the article as like, “Oh, it's political pressure. Oh, they'll be weaponized. So, you're holding them back.” But all she's saying is that we want them to be accurate. And also elsewhere in the article, the author of this paper describes the findings. It's like we put kids on puberty blockers and they didn't see significant decreases in depression. So, if this is a giant cover up, it's weird for the author to just describe the findings, like to just admit to what the findings were. 

We talked about this in a previous trans kids episode that, like, it's actually a fairly consistent result that kids on puberty blockers don't see significant decreases in things like suicide or depression, partly because puberty blockers don't actually do anything. If you're experiencing gender dysphoria and then you go on puberty blockers, your body has not changed. And so, there's no real reason why a researcher would hold back findings on this when there's lots of other studies to find this. This isn't actually that controversial of a finding. These results were eventually published and they're in line with other existing literature. They did actually find a reduction in suicidality, but it didn't appear to reach statistical significance. The idea that she's saying “We don't want our work to be weaponized.”

That that is like letting political considerations affect scientific research is like, it's this weird circular thing where it's like, well, this New York Times article is weaponizing her work. You're doing the thing that she's worried about. She's like, “We don't want someone to take like our random shit out of context and say that the entire field is bunk.” And then this article says that the entire field is bunk because of an out of context quote, a single quote. 

Peter: Right, right. 

Michael: Again, there's no real content to this. It's like, “Okay, someone was slightly delayed in publishing their results and freely admitted to what their results are and also then publish them.” What's the actual scandal here? 

Peter: I don't know. There's something exhausting about, like, you're meant to believe that the American Academy of Pediatrics or whatever is living under the storm cloud of politics and you should just be ignoring them entirely. But some dipshit journalist gets front billing and whatever fraction of an email they can throw at you to cast doubt upon trans healthcare, you should put your trust in it.

Michael: So now we get to the Biden administration. This is the accusation of the Biden administration warping the WPATH guidelines for its own ends. So, here is Clarence Thomas. 

Peter: Recent reporting has exposed that WPATH changed its medical guidance to accommodate external political pressure. Unsealed documents revealed that a senior official in the Biden administration pressed WPATH to remove age limits for adolescent surgeries from guidelines for care of transgender minors on theory that specific listings of ages under 18 will result in devastating legislation for trans care. Despite some internal disagreement, WPATH acceded and removed the age minimums in the 8th edition of its Standards of Care.

Michael: So, you looked into this one a little bit, right? 

Peter: Yeah. 

Michael: What was your read on it, yeah. 

Peter: So, what's sort of missing from Thomas' analysis is like what actually played out here,-

Michael: Yeah. 

Peter: -which is that this is about the minimum age at which they recommend certain gender-affirming care. What they were going to do was specify certain lower ages below 18, 14, 15, depending on the treatment.

Michael: They were going to lower the ages from previous recommendations.

Peter: Yeah. The Biden administration, Rachel Levine, the Assistant Secretary of HHS, says, “Hey, I don't think you should do this, basically because it's going to incur the wrath of the right.” They're going to react to this saying, “Oh, my God, you're recommending surgeries for minors or whatever, so you shouldn't do it. You should leave the ages out. And they do.” 

Michael: Yeah. It appears that they ignored her. But then the AAP-- [crosstalk]

Peter: The Academy of Pediatrics. 

Michael: Yeah, the AAP then pressured them and then they removed the age recommendations. 

Peter: So, what happened here holistically is that they acceded to right wing pressure. 

Michael: Exactly. 

Peter: Now, indirectly, of course. Because the actors involved were not right-wing actors. But what actually happened is that they changed what the guidelines say to ensure that the right doesn't get too angry. 

Michael: Exactly. 

Peter: I mean, literally the opposite of what Thomas has happened. But whatever. 

Michael: What's also so weird about this is the lack of context of the actual content of the guidelines. So, it is true that they removed the age minimums for most things, but if you read the actual guidelines, kids should only receive gender-affirming care if the following criteria are met. It says “The adolescent meets the diagnostic criteria of gender incongruence. The experience of gender diversity is marked and sustained over time. The adolescent demonstrates the emotional and cognitive maturity required to provide informed consent. The adolescent's mental health concerns that may interfere with diagnostic clarity, capacity to consent and gender-affirming medical treatments have been addressed. The adolescent has been informed of the reproductive effects, including the potential loss of fertility and the available options to preserve fertility. The adolescent has reached Tanner stage two of puberty for pubertal suppression. The adolescent has had at least 12 months of gender-affirming hormone therapy or longer if required to achieve the desired surgical results.” 

So, there are not age minimum guidelines in here, but what everybody always fucking melts down about is like, “Ah, they're being rushed into surgeries and medications.” But the guidelines themselves are like, no, make sure that the kid does not have severe mental health problems. Make sure that this kid has been on hormones for a year. 

Peter: All the shit that they say they want. 

Michael: That's the thing. It's sort of like, “Well, what do you want?” Like, every medical provider understands the basic premise that like, “Yeah, kids experiment with identity at that age and kids say things that they may want to change later.” Every doctor of adolescents fucking knows this, right? 

Peter: Yeah, yeah. 

Michael: So, it's like, “Okay, we have this conceptual acknowledgement that like, yeah, kids are experimenting with their identities at this stage.” We want to make sure that this is like a persistent identity before we do anything irreversible. Everyone agrees with that conceptually. And then in practice, we have no evidence of kids being rushed into these procedures. You just don't find either in the rhetoric of WPATH or in the actual evidence of the number of kids and the conditions under which kids are receiving this care. You don't find evidence of large numbers of kids being rushed into it. 

Peter: Right. 

Michael: But those basic facts always get lost of like, did you know in an email they said it'll be weaponized? 

Peter: Well, I mean, and let's not lose sight of what's happening here. You have literally dozens of professional organizations chock full of experts saying, “Hey, Supreme Court, we think this is safe and effective, for what that's worth.” And then you have Clarence Thomas, a career lawyer. And not just a career lawyer, but a guy who's been on the Supreme Court for actually almost half of his life. Being like, “No, I don't think so, guys.” 

Michael: He's like, “Didn't you forget to ask someone? I don't consent.” 

Peter: This is anti-intellectualism at its core.

Michael: Yeah. Yeah.

Peter: What Clarence Thomas believes is that trans people are just extra gay. [Michael laughs] That's what he believes.

Michael: But then. Do you want to get into that now, Peter? The bizarre fucking victory lap after this decision?

Peter: Yeah, let's do it. Let's do it.

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