Supreme Court Arguments Devolve Into Weird Panic Over Trans Kids’ Fertility

During Wednesday's oral arguments for U.S. v. Skrmetti,  Brett Kavanaugh and an attorney for Tennessee talked about trans children’s future reproduction. Weird weird weird!

By Kylie Cheung  |  December 4, 2024 | 3:40pm
Photo: Shutterstock Politics
Supreme Court Arguments Devolve Into Weird Panic Over Trans Kids’ Fertility

There’s a reason Tim Walz’s now-famous “weird” line of attack against conservatives once resonated, and it’s that conservatives and so many of their core fights are deeply fucking weird! That was very much on display Wednesday morning at the Supreme Court when the Justices heard oral arguments for U.S. v. Skrmetti, a case involving trans children’s access to life-saving gender-affirming health care that challenges Tennessee’s current ban.

Some background: In March 2023, Tennessee Gov. Bill Lee (R) signed SB 1, which prohibits health care workers from providing gender-affirming health care to transgender youth, including puberty blockers and hormone replacement therapies. However, minors who aren’t trans are still allowed to receive these treatments for varying reasons. SB 1, which forced trans youth to end their care by March 31 of this year, also allows minors or their parents to sue trans health care providers if they’ve suffered “harm” following treatment. In response to SB 1, trans children and their families sued the state of Tennessee. They’re represented by attorneys for the Biden administration, Lambda Legal, and the ACLU — specifically, the ACLU’s Chase Strangio, who became the first known transgender person to argue before the Supreme Court on Wednesday.

In June 2023, a federal judge issued a decision that would have blocked SB 1, but Tennessee immediately filed a successful appeal at the U.S. Court of Appeals for the Sixth Circuit. The plaintiffs appealed to the Supreme Court, which announced in June that they would hear the case. And now, here we are!

While Strangio and Solicitor General Elizabeth Prelogar argued SB 1 amounts to sex-based discrimination, at different points, conservatives tried to hurl the court down a junk science rabbit hole over how gender-affirming care could supposedly impact trans kids’ future fertility. First, Kavanaugh raised to Prelogar that gender-affirming care came with risks of fertility loss, which Prelogar pointed out is untrue: Puberty blockers don’t affect fertility, and even if that were the case, a wide range of medical treatments that do affect fertility aren’t banned.

“Critically, puberty blockers have no effect in and of themselves on fertility, so I don’t think that concern can justify the ban on puberty blockers, which is just pressing pause on someone’s puberty to give them more time to understand their identity… There are other treatments for adolescents that likewise affect puberty including… [for] intersex individuals who often have surgeries as infants that might permanently affect their fertility.” Prelogar also raised that even if impacts on future fertility were a concern for gender-affirming health services, that still doesn’t warrant a ban: “If you are concerned about fertility there are measures the state could undertake like requiring warnings, more informed counseling, trying to ensure there’s informed consent in this area” instead of sweepingly banning medical treatments that can be a lifeline for trans kids.

Later, Tennessee’s solicitor general, Matthew Rice, raised this same, baseless, fearmongering claim when he made his case on behalf of the state. Justice Ketanji Brown Jackson aptly pointed out that the case actually has nothing to do with speculation about fertility, but the discriminatory nature of policing some children but not others’ access to certain medical treatments. 

I’m genuinely impressed at Prelogar and Jackson’s ability to maintain composure amid such astoundingly creepy conversations. Thinking about anyone’s fertility, let alone the fertility and future reproduction of children, is both invasive and perverted. And yet, the arguments from Kavanaugh and Rice closely reflect the gross talking points I’ve increasingly been exposed to while following terminally online right-wingers and transphobes like Elon Musk, as well as anti-abortion extremists, for years. 

Prelogar notes that puberty blockers have no effects on fertility, that people often even remain fertile after taking hormones, and that there are many other medical treatments, especially for intersex people, that permanently affect fertility. Rates of regret are very low, she adds.

— Garnet Henderson (@garnethenderson.com) December 4, 2024 at 10:48 AM

Musk, specifically, is famously obsessed with the birth rate — an obsession that’s manifested in supporting anti-abortion politicians and trying to impregnate every woman within a three-mile radius of him. In recent years, Musk has become one of the most visible anti-trans talking heads on the internet, even writing off his own trans daughter as “dead” to him for transitioning. In 2023, his ex-partner, Grimes, tried to explain Musk’s transphobia, explaining that he’s simply, benevolently concerned about the birth rate and survival of the human race. Ew.

Meanwhile, just as conservatives speculate about whether trans kids could still birth biological children, they’re also increasingly arguing that child rape victims should be denied abortion and forced to give birth. Anti-abortion Dr. Ingrid Skop testified before Congress in 2021 that child rape victims as young as nine or 10 could safely give birth (false), and in May of this year, Texas appointed her to the state’s maternal mortality committee. In 2023, an Ohio anti-abortion leader testified before the state legislature in support of the state’s abortion ban, referring to a 10-year-old child rape victim as a “woman,” and insisting that “a woman’s body is designed to carry life.” One Texas-based anti-abortion leader proudly argued to the Washington Post in 2022 that 13-year-old rape victims make for “phenomenal” parents. 

There is so, so much about the Skrmetti case that’s deeply upsetting — the dehumanization of trans kids, the risk this poses to gender-affirming care for trans people of all ages, or how Tennessee is invoking the Dobbs v. Jackson Women’s Health ruling as justification for SB 1. But on top of being infuriating, let’s not lose sight of how singularly fucking weird it is to be this fixated on trans children’s genitals and their “future fertility.”

 
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