“Suing Alabama was the single biggest strategic mistake transgender advocacy groups made in their zeal to defend sex ‘change’ procedures for kids,” Leor Sapir wrote on Twitter/X last week. “I've never seen a decision backfire so spectacularly.” Sapir was referring to this amicus brief from the Alabama attorney general to the Supreme Court of the United States regarding the Skrmetti case, which is scheduled for a hearing in December.
While the case is about Tennessee’s ban on pediatric transition, “Alabama has exposed a medical, legal, and political scandal that will be studied for decades to come,” reads the brief. In a series of disclosures made through discovery in the 11th Circuit federal court, Alabama has exposed the scientific pretenses of pediatric ‘gender medicine’ as a politically-driven sham.
“The federal government, ‘social justice lawyers’ from prominent activist organizations, and self-appointed experts at the World Professional Association for Transgender Health (WPATH) conspired to abolish age limits for sterilizing chemical treatments and surgeries,” the brief explains. “Central to their strategy was the WPATH Standards of Care 8 (SOC-8) — a purportedly evidence-based set of recommendations that would be used by their lawyers to convince courts to enshrine in law the previously unimaginable.”
Dominoes are still falling. More than 20 state attorney generals have announced a fraud investigation into the American Academy of Pediatrics over the organization’s risible claim that puberty blockers are “reversible.” Such claims were always going to implode under pressure. “If trans activists had not sued red states for protecting minors from gender medicine, I think it’s unlikely the AGs would now be investigating the AAP,” writes Unyielding Bicyclist at the Bad Facts Substack. “After all, the AAP’s recommendations about puberty blockers would be null and void in their states thanks to the bans.”
In their eagerness to overturn Alabama’s law, some of the most prominent litigators against pediatric transition bans took part in a judge shopping scandal and now stand accused of attempted fraud on the court. Alabama has also called out shenanigans by the US Department of Justice, which “seemed to strategically choose to seek certiorari [Supreme Court review] in a case with only a preliminary record and no discovery” in Tennessee “and then tried to shut down discovery in Alabama on the basis that it had merely filed a cert petition” with the Supreme Court.
The Alabama brief details for the Court how WPATH suppressed the publication of evidence reviews it had commissioned from Johns Hopkins University and allowed political pressure, as well as conflicts of interest, to shape SOC-8 instead. Referring to the Cass Review, Alabama explains the circular citation-method of WPATH, which “authored the initial guideline, which other groups used as the basis for their recommendations, which WPATH then cited as ‘evidence’ for the next edition of its guideline.”
“WPATH’s critique of the Cass Review is simply not serious,” Alabama says. Whereas “the difference between a ‘strong’ and ‘weak’ recommendation is extremely important, particularly when it comes to life-altering interventions like cross-sex hormones,” WPATH deliberately obscured the low quality of the evidence underlying their recommendations.
Internal emails revealed in discovery say that “evidence-based review reveals little or no evidence and puts us in an untenable position in terms of affecting policy or winning lawsuits.” Pediatric sex ‘change’ was always a political project. It was never a matter of medical necessity, so covering up that reality became the primary purpose of litigation by its proponents.
Alabama points to the meddling of Rachel Levine, transgender assistant secretary at the US Department of Health and Human Services. “Levine demanded that WPATH remove from the guideline all age limits for chemical treatments, chest surgeries, and even surgeries to remove children’s genitals” so as to avoid political consequences.
After the AAP provided the final leverage that forced WPATH to remove the age limits, internal WPATH emails show that the organization’s leadership scrambled to spin the changes as the result of a scientific consultation rather than political consideration.
“Thanks to the Biden Administration and AAP, SOC-8 does not contain age minimums for any transitioning hormonal or surgical intervention except for one: phalloplasty,” the creation of a faux penis out of skin harvested from arm, thigh, stomach, or back. This procedure has the highest complication rates of all ‘gender-affirming’ surgical quackery, so it was imperative to limit its application to adults, and therefore limit the potential damage awards.
WPATH was still willing to countenance absolute insanity as ‘medical necessity.’ In the most disturbing portion of the brief, Alabama explains that WPATH developed their recommendations for “eunuch identities” from the online Eunuch Archive, “a site that features child sexual exploitation fantasies centered around stopping little boys from going through puberty.”
Alabama quotes Reduxx journalist Genevieve Gluck, who was the first to report on the contents of the Eunuch archive. “The fictional pornography includes themes such as Nazi doctors castrating children, baby boys being fed milk with estrogen in order to be violently sex trafficked as adolescents, and pedophilic fantasies of children who have been castrated to halt their puberty, ‘freezing’ them in a childlike state,” Gluck wrote.
“Despite all this, the medical interest groups supporting Petitioner still claim that the WPATH guideline ‘follow[ed] the same types of processes … as other guidelines promulgated by amici and other medical organizations,’” the Alabama brief says, adding wryly: “Let’s hope not.”
“The Constitution does not mandate that States bow to the dictates of radical interest groups like WPATH,” Alabama concludes. Most observers agree that the Court majority will likely agree with this argument. However, the justices will probably be less concerned with the history of WPATH’s fraud, or the right of state legislatures to pass laws against harmful medical quackery, than the legal question of whether the ‘trans child’ qualifies as an oppressed minority.
In American jurisprudence, the term ‘quasi-suspect class’ refers to a group which suffers from official mistreatment, but without being recognized as a race, religion, or national origin (the so-called ‘suspect classes’). For example, the Court has considered women a quasi-suspect class when it has overturned various forms of sex discrimination in law. The ‘intermediate’ constitutional test of such laws is not as strict as that for racial discrimination, but stronger than a simple test of whether the government has a legitimate interest in passing such legislation (‘rational basis review’). The plaintiffs in Skrmetti want to make ‘trans kids’ a quasi-suspect class.
Whereas the Alabama brief does not touch on this topic, another amicus curiae brief from Women’s Declaration International does. “Even if ‘transgender’ were a coherent category of people, it is not an immutable trait,” as proven by the mere existence of detransitioners, the brief points out.
“The word ‘transgender’ is a linguistic sleight of hand that cannot be protected legally as a quasi-suspect class under equal protection analysis because it has no coherent meaning, is not an immutable trait, and does not describe a politically powerless group of people.” On the contrary, the plaintiffs in Skrmetti enjoy political support from the Democratic Party, the state legislatures it controls, and its presidential nominee.
WDI asks the Supreme Court to reconsider “the linguistic destabilization” of its 2020 decision in Bostock v Clayton County, which has created “profound confusion throughout society as well as in law about what basic words like ‘women,’ ‘girls,’ ‘men,’ ‘boys,’ ‘sex,’ and ‘gender’ mean.”
“This Court should acknowledge that the category of people who call themselves ‘transgender’ have become one of the most powerful lobby groups in the country,” so powerful that they can run roughshod over the rights of actual suspect and quasi-suspect classes in every realm of life. Emblematic of this phenomenon, though not an issue in Skrmetti, is the presence of trans-identified males in female sports. Women and girls are a quasi-suspect class with protections, but those protections are ignored whenever males profess to have feelings of gender.
Partisanship does not explain the opposition to this phenomenon, either. “Of the roughly 6500 U.S. signatories to the Declaration, around 30 percent are Democrats and 34 percent are Independents (many having left the Democratic Party, no doubt due to opposition to the Party’s support for ‘gender identity’),” the brief says. “Seven percent are Republicans and the rest are either unaffiliated or prefer not to say.”
While the WDI brief has a different focus from the Alabama brief, it does return to the specific issue of scientific rigor, or lack thereof, in the invention of the ‘trans child,’ listing Finland, Sweden, and the UK among the nations that have turned away from the ‘affirming’ model of ‘transgender care’ in children. “Why is the U.S. going in a different direction from these other countries? One reason, put forth by political scientist Leor Sapir, is that the other countries are following the principles of evidence-based medicine, while the U.S. is not.” The activists pushing for ‘trans kids’ are simply not living in the real world.
Unyielding Bicyclist notes that the Supreme Court is being asked to resolve a question that lower courts have answered in divergent ways. “Two federal appeals courts — the 4th Circuit and the 9th Circuit — have held that “transgender status” is a “quasi-suspect classification,” she writes. “I predict it will overrule those courts.” If they do, then the activists who sued Alabama and Tennessee will indeed have made their “single biggest strategic mistake” by doing so.
For the ‘gender identity’ agenda always had this basic problem at its core: remove any single demand — puberty blockers, or men in women’s sports, or prisons, or spaces — and the rest of these blinkered ideological demands immediately weaken. For example, the ACLU has cited puberty blockade and pediatric transition as a reason to allow males in female high school sports in Hecox v Little, their case against Idaho’s law protecting female sports categories. If the Supreme Court rules that ‘trans kids’ are not a quasi-suspect class, the rationale behind this part of the ACLU’s litigation will be dead on arrival.
For this reason, if the Court rules as expected, they will likely have secondary effects on the entire legal project of ‘gender identity.’ Biglaw does not like to lose, so if this area of law becomes a loser, there will be less interest in taking on such cases. So while Skrmetti is not the end of this, it may very well prove the beginning of the end for ‘gender identity’ as a monolithic project, with future litigation focused instead on ever-narrower questions of discrimination against ‘transgender’ Americans.
After all, the Bostock decision was just about letting a man wear a dress to work. Most Americans simply shrug at this, but the activists behind Skrmetti are asking much more of America, and of the Court. Instead of a sweeping victory for ‘trans rights,’ the case could be a turning point in the long, hard road back to sanity. The activists demanded too much. May they rue the day they did.
Are any of the amici curiae attacking the myth of the "trans kid" head on by presenting evidence that most gender-confused youth desist during adolescence providing they avoid capture by gender identity ideology?
Pediatric gender medicine is harmful because the long-term risks are unknown, the low quality of the evidence that it is beneficial, the abolition of meaningful gatekeeping and the systemic breach of the ethical requirements to do no harm and obtain informed consent.
In addition, an unknown number of same-sex attracted kids are having their sexual orientation sacrificed at the altar of gender identity. It's a case of the TQ element of LGBTQ overriding the interests of LGB kids.