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Friday, June 20, 2025
What should trans-rights activists have done?
Having used its pages to "just ask questions" and thus launder anti-trans bigotry into empathetic medico-scientific caution, the Times bounces the rubble with a long story about how the Skrmetti litigants "gambled and lost and "set the movement back a generation." Josh Blackman reads the story as revealing something meaningful about movement politics and the shape of the left. Actually, the story represents an opportunity for the Times to support its priors by quoting a bunch of the trans movements allies saying "told you so."
This all comes down to one question: What should trans activists and their lawyers have done in the face of that Tennessee law?
They had four options: 1) Do nothing and live under a discriminatory law in Tennessee (and other states enacting similar laws); 2) Litigate in state court (or at least try state court first) as a way to buy time; 3) Litigate in federal court but do not try SCOTUS--stated differently, lose substantial rights in Tennessee, Kentucky, and Ohio (and Michigan, next time it has a Republican governor and legislator) but allow other people in other places to enjoy those rights and perhaps fight another day;* or 4) Try what they did and live with the consequences. # 1 should not be acceptable; # 2 seems like a waste of time and money, certainly in Tennessee--there is a reason we do not require state-law exhaustion before pursuing § 1983/EpY claims. Blaming the losing litigants also ignores that SCOTUS reached out to take the case. Its docket is discretionary, so it had no obligation to hear it; there was no direct circuit split to resolve, so the Court had none of its ordinary reasons to hear the case. Which I guess reifies # 3 as the least-bad option.
[*] First they came for the trans people in Tennessee, but I did not speak out because I am a trans person who does not live in Tennessee . . .
The Times' "over-reach" framing sounds in "too soon"--the movement tried to move too fast it blew up, and now we're screwed for generations. It pushes option # 1. But as I wrote here:
The Black Civil Rights Movement was the first modern mass civil-rights movement; it operated on a blank federal constitutional and statutory slate and challenged an existing legal scheme (Jim Crow laws in place for about 50 years). Other groups--women, disabled individuals, LGB--followed on that model, challenging long-standing laws that either were part of the historical firmament (women's inequality) or had never been considered (the way the world works against people with disabilities) And there was some degree of "if this historically disadvantaged groups enjoys protection, so should we."
The trans-rights movement misaligns because it operates in mature constitutional system--it is copying prior movements rather than inventing them. Trans people seek to fit themselves into an existing statutory landscape and to be treated as their identified (rather than assigned-at-birth) gender; states have enacted new laws targeting the group after it pushed for recognition or room to operate within the existing regime. For example, hormone therapy exists, but states now prohibit one group from obtaining that therapy for one purpose.
The analogy might be Plessy and Jim Crow--a deliberate test case to challenge relatively new laws (Jim Crow began in earnest in the late 1880s and 1890s). Like 1890s state legislatures targeting Black people with new laws, 2020s state legislatures target trans people with new laws. So if option # 1 is it, does that mean trans people must live in a discriminatory environment for another 30-60 years?
If not, I return to my question: What else should trans people living in a state denying them necessary medical coverage have done?
Posted by Howard Wasserman on June 20, 2025 at 06:24 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink
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