On Pogroms, Trans Youth, and the Supreme Court
Editor’s note: Nina-Bytes is a regular blogging series that features short analysis and commentary on articles from around the web. Want more? Click here to subscribe to NIDC today.
Building the Bonfire
I’ve made no secret of the fact that I believe the fascist American right’s ongoing war on gender affirming care for trans and nonbinary youth is obviously a trojan horse for politically empowered transphobes and nazis to prosecute an eliminationist anti-trans pogrom in the United States of America. Furthermore, I no longer consider that position to be a question of opinion, given that anti-trans GOP politicians have already worked to deny funding for trans healthcare, we’ve caught Republicans and transphobes admitting their plan is to ban trans gender affirming care for even adult Americans, and the President of the United States himself issued an executive order on his very first day in office declaring, effectively, that trans people do not exist. As any scholar of fascist pogroms and genocidal political programs will tell you, when the folks in charge of a violent police state hostile to your existence declare that you don’t exist, it’s because they’re actively fixing to make that so.
The problem for the larger fascist right in America however, is that it’s awfully hard to argue that a tiny fraction of the population represents an existential crisis that justifies stripping their civil rights and denying life-saving medical care, purely because fundamentalists and nazis don’t think trans people should exist. Furthermore, after losing their long legal battle to drive gay and lesbian people out of public life, the current laws on the books do not allow for nearly the level of hostility, discrimination, and open homicidal malevolence the Republican Party wants to direct towards trans and nonbinary people. Anti-trans activists and politicians needed a way to demonize trans people and capitalize on latent American transphobia to recruit bipartisan support for their would-be pogrom while sidestepping the delicate issues of personal bodily autonomy, and constitutionally-protected rights.
The fascist anti-trans coalition has responded to these challenges by manufacturing a false moral panic around “protecting the children” from so-called “gender ideology,” which is a conspiratorial phrase that essentially means being trans or “knowing LGBTQ+ people exist.” Then, they used this panic to justify deploying the same junk science, openly political rhetoric, and entrenched bigotry that the right once used to deny equal rights to gay people not so long ago. By targeting trans and nonbinary youth care, an organized alliance of “enlightened” centrists, theocratic fascists, and transphobes successfully pushed the narrative that trans people pose a threat to children, and that gender-affirming care is part of a scheme to profit from coercing kids into dangerous, irreversible medical procedures. At the same time, they framed the rights of trans Americans as being in direct conflict with the rights of “concerned American parents” who would rather have a dead child, than a trans one.
Burning the Witches
In the face of at best tepid pushback from the liberal establishment, and open Democratic Party collaboration with the anti-trans pogrom at worst, the political portion of this project has been wildly successful; although it’s certainly not the only reason he won, you’d be a fool to deny that Donald Trump rode a wave of pervasive, organized transphobia to a second term in the White House last fall. Culturally, medicalized anti-trans propaganda hiding behind pseudoscience and pop psychology arguments are standard fare in mainstream news outlets like the Washington Post and the New York Times; another clear victory for bigots who want to end the existence of trans people. Legally-speaking however, things have been more difficult for the anti-trans fascist right. The issue is that trans and nonbinary people are still people, and it’s against the law to discriminate against people for their identity, even if you think they’re godless heathens who threaten the moral fabric of our society.
Of course, one clever way around that might be to claim you’re not actually discriminating against trans people at all, but rather that you’re simply banning “controversial” youth medical care practices for a condition that literally only affects trans and nonbinary people, specifically “gender dysphoria, gender identity disorder, and gender incongruence.” This was the line of argument that lawyers for the State of Tennessee put before a 6-3, fascist-controlled Supreme Court in a case called “United States v Skrmetti” this week, and in a ruling that will unquestionably result, at a minimum, in more dead trans kids in Tennessee, the court agreed with that theory along purely ideological lines. For a quick breakdown, let’s check out this June 18th, 2025 article by Carter Sherman, writing for The Guardian.
US supreme court upholds Tennessee ban on youth gender-affirming care
“The case, United States v Skrmetti, was filed last year by three families of trans children and a provider of gender-affirming care. In oral arguments, the plaintiffs – as well as the US government, then helmed by Joe Biden – argued that Tennessee’s law constituted sex-based discrimination and thus violated the equal protection clause of the 14th amendment. Under Tennessee’s law, someone assigned female at birth could not be prescribed testosterone, but someone assigned male at birth could receive those drugs.
Tennessee, meanwhile, has argued that the ban is necessary to protect children from what it termed “experimental” medical treatment. During arguments, the conservative justices seemed sympathetic to that concern, although every major medical and mental health organization in the US has found that gender-affirming care can be evidence-based and medically necessary. These groups also oppose political bans on such care.
All six of the supreme court’s conservative justices joined in at least part of the decision to uphold the law, although several also wrote their own concurring opinions. In his majority decision, Chief Justice John Roberts emphasized that the ruling primarily rested on the justices’ finding that the law did not violate the equal protection clause, rather than on an ideological opposition to trans rights.”
Despite it’s insular logic, and deceptively-focused appearance, this ruling is without a doubt a horrifying landmark on our national road to legalized discrimination, patriarchal control of women’s bodies, and a real as fuck trans genocide. On its very face, the 6-3 fascist high Skrmetti decision is a catastrophic attack on trans youth in America that absolutely will reap a toll in dead American children and that’s presuming only a narrow application of the precedent that Chief Justice John Roberts has just set; given the pugnacious legalist style of the broader American fascist movement, I would not expect their attempts to apply the “logic” on display here to end with trans youth, or trans people in general. This story involves two major issues: the court’s fascist majority advancing incoherent, legally indefensible arguments to uphold Tennessee’s blatantly targeted ban on gender-affirming care for trans youth (also known as S.B. 1), and the ease with which those arguments can be weaponized to advance the fascist right’s anti-trans pogrom in America.
To put it bluntly, Roberts’ ruling for the majority is a twisted, disingenuous, incoherent rat’s nest of selective amnesia and mental gymnastics. Even for the six corrupt nazis who control SCOTUS, this is a shockingly bald-faced attempt to pile up bullshit in order to enshrine bans on trans youth care that the theocrat fascists on the court wanted for political and ideological reasons all along. As Ian Millhiser, writing for Vox notes:
“But, as a matter of judicial craftsmanship, Roberts’s opinion is disappointing even by the standards of the Roberts Court. It draws incoherent distinctions. It relies on old and widely criticized precedents to undermine legal principles that are well established by more recent cases. At times in his opinion, Roberts seems to misread statutory language that he just quoted a paragraph or two earlier.
It appears, in other words, that the six justices in the majority started with the outcome that they wanted — bans on transgender health care for minors must be upheld — and then contorted their legal reasoning to fit that result.”
In part because of the case before them, and in part because formally legalizing discrimination against trans people merely for being transgender is still a bridge too far for most (but not all) of the Robert’s court, the conservative majority sidestepped both the questions of whether or not anti-trans discrimination qualities as sex discrimination, and whether or not transgender people represent a class in our society that qualifies for a higher level of scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Punting on both of these questions then allowed the GOP justices to pursue a line of argument in support of Tennessee’s youth gender affirming care ban under the much lower standard of whether or not there was a “rational basis” for the law, which sounds to me an awful lot like the legal version of “many people are saying“, but I am not a lawyer.
Under that much lower standard, the fascist Republicans on the court were able to use the very same pseudoscientific, medicalized moral panic propaganda that fueled the mainstreaming of the anti-trans pogrom to rationalize Tennessee’s arguments as something other than a discriminatory attack on trans youth, as pointed out by Chris Geidner, writing on LawDork:
“With those findings, the court, accordingly, only considered whether there was a “rational basis” for the law — the highly deferential, lowest level of scrutiny for reviewing the constitutionality of laws that only requires “plausible reasons” for legislative or other governmental action.
Alito was back with the majority on this point because, in his view, the question of whether the law classifies based on transgender status doesn’t ultimately matter because, he wrote, “transgender status does not qualify under our precedents as a suspect or ‘quasi-suspect’ class.“
As to rational basis, then, Roberts wrote for all six Republican appointees, “SB1 clearly meets this standard,“ holding that the state “concluded that there is an ongoing debate among medical experts regarding the risks and benefits associated with administering puberty blockers and hormones to treat gender dysphoria, gender identity disorder, and gender incongruence.“
Under rational basis review, that is enough. “SB1’s ban on such treatments responds directly to that uncertainty,“ Roberts concluded. Importantly, although Roberts wrote that the age limitation of the law was “relevant” to the case on Wednesday, far-right lawmakers and advocates are almost certain to argue that the reasoning of the decision, including regarding “medical use,” could apply to any gender-affirming medical care restrictions, regardless of age.”
This is all basically crass prejudice and transphobic fuckery, delivered by the Roberts 6-3 fascist dominated court with the thinnest veneer of legality and a poison smile towards trans people, and in particular trans youth, in America. The devil is however in the details as always, and it’s ultimately the disingenuous, circular logic employed by the court majority that represents perhaps the greatest danger to equal protection law in the modern history of this country. How exactly do you argue a ban on gender affirming care for trans kids whose drafters specifically state the purpose of the law is to “encourage minors to appreciate their sex,” neither targets transgender people specifically, nor qualifies for sex-based classification? Well if you’re John Roberts, you repurpose some of the worst obsolete rulings in legal history to argue that trans people are not the droids you’re looking for. From Erin Reed, writing on her website Erin in the Morning:
“In issuing such a ruling, the Court asserts that discrimination based on “gender dysphoria” is somehow distinct from discrimination on the basis of transgender status or sex—creating a loophole wide enough to drive a truck through. In her dissent, Justice Sotomayor calls out the contradiction directly, noting the majority’s logic would permit states to target transgender people while avoiding constitutional scrutiny simply by reframing the language of their laws.”
“One of the more strained justifications in the majority opinion mirrors arguments once used to deny rights to same-sex and interracial couples: that the law does not discriminate against transgender people, but instead bars both cisgender and transgender people from receiving medication to treat gender dysphoria. It’s a tortured rationale—functionally absurd given that transgender people will need the medical treatment for gender dysphoria, not cisgender people.”
As Millhiser pointed out in his Vox piece, the Roberts Court argument is basically akin to saying that “Jim Crow laws do not discriminate on the basis of race, but instead discriminate based on the color of a person’s skin,” and therein lies the additional danger. If the state can ignore medical science and bodily autonomy to discriminate against folks diagnosed with gender dysphoria, without ever having to even answer the question of whether or not that constitutes discrimination against trans and nonbinary people, Justice Roberts’ argument in Skrmetti that the situation might be different for adult trans people holds precisely zero water; why would the answer to “is a ban on gender affirming care to treat dysphoria in adults discriminatory against trans people” be different if the “rational basis” standard the laws are subjected to prevents the question from even being asked?
Furthermore, if fascists can target what should be a protected class of marginalized people by simply claiming the law is targeting “the sin, not the sinner” as it were, what’s to stop them from broadly applying this logic to laws that target gay and lesbian people, migrants, women, African Americans, or simply people who don’t conform to the Heritage Foundation’s definition of “real Americans?” As long as the nazis can drum up a fake moral panic about a right, freedom, or service commonly used or needed by a class of people they want to target, they should be golden. Roberts didn’t just make a ruling that reminds us of Jim Crow laws, he effectively restored the legal logic that enabled Jim Crow into precedent, and I’m pretty sure none of us have even begun to imagine all the awful shit politically-empowered American fascists, including the ones running the US government right now, will dream up in response to this ruling.
Expanding the Pogroms
When the Supreme Court of the United States ratifies discrimination under the pretense of objectivity, it doesn’t just enable future oppression, it foundationally codifies it. What we’re witnessing is the gradual legalization of trans erasure, justified by bad-faith, openly eliminationist arguments cloaked in concern for children, and driven by theocratic and fascist ideologies fundamentally hostile to bodily autonomy, civil rights, and human dignity. The Tennessee youth trans care ban, now backed by the highest court in the land, has effectively greenlit lawmaker’s ability to strip healthcare from any marginalized group, so long as they frame it in seemingly-neutral, medicalized terms. I’m not using hyperbole at all when I say this decision represents a complete collapse of the moral and legal underpinnings of American civil rights law; a collapse in which motivated constitutional reasoning, willful amnesia in the face of case law, and abstract legal parsing are valued over lived reality, medical science, and basic human rights. The precedent this sets will be used, rapidly and expansively, by other fascist Republican-controlled states with similar ambitions.
The dire consequences of the Skrmetti ruling will not be theoretical. They will surface in the form of emboldened hate groups, school districts that feel licensed to ban LGBTQ+ speech and existence, and parents who feel empowered to persecute or abandon their own children; all under the crass banner of legality. The future anti-trans legislation the court’s fascist majority has enabled here will manifest in more despair, more isolation, and more dead trans kids. As noted in the Guardian article above, the Trevor Project conducted a study that found anti-transgender laws significantly increased past-year suicide attempts among transgender and nonbinary youth by as much as 72 percent, to say nothing of the indisputable data showing that gender affirming care saves trans lives.
The ongoing anti-trans pogrom in America is not about protecting children, and the very existence of a political debate about the human rights of trans people is a deeply disturbing sign for our increasingly fascist society. We are witnessing a slow, methodical campaign to eliminate a class of people from public life; a fanatical quest to make being trans unlivable in the United States. This is the fascist anti-trans pogrom operating in real time, and as history has shown us time and time again, when fascism comes for one targeted group, it is only a matter of time before it sets its sights on other demonized targets. The arguments the Roberts Court enshrined into law yesterday will have a catastrophic fallout for the rights of far more than just trans people. All of which leaves us with a couple of important question – is this the America you want to live in; and if not, what are we going to do about it?
– Nina Illingworth
Anarcho-syndicalist writer, critic and analyst.
You can find my work at ninaillingworth.com, and on Mastodon.
Subscribe to NIDC to for email updates whenever a new post is published.
Support my work on Ko-Fi by clicking here.
