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The US supreme court heard one of the most consequential LGBTQ+ rights cases in its history on Wednesday, with arguments that laid bare the conservative supermajority’s broad threats to civil rights, bodily autonomy and decades of legal precedent.

In US v Skrmetti, the court is weighing Tennessee’s ban on gender-affirming healthcare for transgender youth, one of 24 state laws across the US prohibiting treatments that are part of the standards of care endorsed by every major medical association in the country.

The case originated with three trans youth and their parents who sued Tennessee, arguing the care – puberty blockers and hormone therapy – was medically necessary and “life-saving”. The Biden administration joined the case, asserting Tennessee’s law was unconstitutional.

The case hinges on the legal question of whether Tennessee’s healthcare ban constitutes a form of sex discrimination that merits “heightened scrutiny”, which would mean the case be returned to lower courts for a more rigorous review. But the oral arguments made clear that a ruling against the trans plaintiffs could have far-reaching implications for trans rights and anti-discrimination protections more broadly.’

The US and the ACLU argued that the law is discriminatory and bans treatments based on sex classifications; under Tennessee’s ban, cisgender boys with delayed puberty can be prescribed testosterone, but transgender boys are barred from accessing the same treatments for gender-affirming care. Tennessee argued that the law is an “across the board rule” to “protect minors” from “risky” medical interventions.

Elizabeth Prelogar, the US solicitor general, noted that the court would “turn its back on 50 years of precedent” if it sided with Tennessee’s arguments that the law does not constitute sex discrimination warranting closer scrutiny.

Justice Ketanji Brown Jackson, a liberal, repeatedly compared Tennessee’s ban with the prohibition on interracial marriage, overturned by the landmark Loving v Virginia decision in 1967: “Some of these questions … sound very familiar to me, [such as] the arguments made back in the day, the 50s and 60s, with respect to racial classifications.” Jackson later added: “I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases.”

“I share your concerns,” responded the ACLU’s Chase Strangio, the first out trans lawyer to appear before the court. “If Tennessee can have an end-run around heightened scrutiny … that would undermine decades of this court’s precedent.”

Kate Redburn, co-director of Columbia Law School’s Center for Gender and Sexuality Law, explained after the arguments that there was the potential for an outcome that “would authorize a much broader range of sex discrimination, which has been previously found unconstitutional.

“There could be situations where the government could distinguish between people by sex, and courts would not intervene,” they continued, saying a ruling in favor of Tennessee could make it easier for states to pass policies that discriminate on the basis of pregnancy or other reproductive choices, for example: “Regulations that we now would say are based on stereotypes – especially stereotypes about what women’s proper role is – depending on how expansive this opinion is, those stereotypes could be authorized.”

Justice Sonia Sotomayor, another liberal, also noted that a decision declaring that the ban on care is not discriminatory could open the door to bans on gender-affirming healthcare for all trans people, not just youth: “You’re licensing states to deprive grown adults of the choice of which sex to adopt.”

Matthew Rice, Tennessee’s solicitor general, responded that the “democratic process” was the “best check on potentially misguided laws”. Sotomayor interjected: “When you’re 1% of the population, or less, it’s very hard to see how the democratic process is going to protect you. Blacks were a much larger part of the population and it didn’t protect them. It didn’t protect women for whole centuries.”

“That was a chilling moment,” said Sydney Duncan, senior counsel at Advocates for Trans Equality, who sat in the courtroom. “Is the next step to ban adult healthcare? The state didn’t have a great answer there.” She noted that Tennessee’s law is rooted in “bad science” and misinformation. Doctors cited as expert witnesses for the state have repeatedly been discounted and rebuked by US judges for their lack of credentials and anti-trans bias, the Guardian recently reported.

Justice Brett Kavanaugh, a conservative, asked Prelogar about bans on trans people in athletics: “If you prevail here … would transgender athletes have a constitutional right to play in women’s and girls’ sports?” Prelogar responded that the sports issue – which has become a focus of Republicans’ culture war – was related to a different legal question. Kavanaugh’s questions raised some concerns from advocates that the outcome could have broader impacts for LGBTQ+ rights beyond youth healthcare.

“The justices likely see this case as a potential harbinger of future litigation and constitutional questions about trans people’s equal protection,” Redburn said.

Rice also claimed that trans plaintiffs were seeking a “right to engage in nonconforming behavior”. Redburn said the remark was noteworthy and raised broader concerns about people’s rights to self-expression:

“You can see the motivation is not, as the state has suggested, to protect the health of children, which is something that states have a right to regulate, but instead is based on not only particular animus towards transgender individuals, but also a broader social vision that upholds a certain gender hierarchy.”

The conservative justices appeared reluctant to intervene and block Tennessee’s ban, which means the outcome next year could deliver a dramatic blow to trans rights at a time of escalating attacks on LGBTQ+ equality across the US.

“It’s so important that we understand this case as deeply connected to … laws on race and sex discrimination more broadly,” said Kimberly Inez McGuire, executive director of United for Reproductive and Gender Equity (Urge), an advocacy group. “These questions of what is privacy, what is autonomy, can we control our bodies and our families – these are all intertwined.”

The questions from Jackson and Sotomayor, she said, made clear that “the struggle for the recognition of trans people’s humanity cannot be separated from questions of race and gender equality that have long been cornerstones of this nation’s jurisprudence”, McGuire said.

She noted that anti-abortion and anti-trans activism were closely linked and that this case would probably be followed by efforts to ban adult gender-affirming care, birth control, IVF and other healthcare: “We have seen the right use marginalized people as the tip of the spear for a much larger attack … This voracious desire to be involved in our most personal, private decisions has no end.”

Imara Jones, a podcaster and CEO of the news organization TransLash, who sat in the room, noted that the healthcare under threat was long established: “If you eliminate gender-affirming care, you’re going to be shortening people’s lives and diminishing the quality of their lives. It’s a very real impact. This is not a constitutional or esoteric consideration for trans people. It’s as personal as it gets.”

Bamby Salcedo, a longtime activist and president of the TransLatin@ Coalition, said she and other advocates were bracing for a harmful ruling, but added: “For many of us as a community, hope is the last thing that will die. Regardless of the outcome, we as people are resilient … and we are going to continue to exist despite the oppression we may experience because of this decision. We are going to continue to fight like hell for all of us to be protected.”

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kvietka · 1 day ago

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so what's next in American Judicial Antics? 5th circuit issuing a nationwide injunction requiring everyone to vote for trump? SCOTUS ruling that corporations have a constitutional right to poison the water?

Here's the cases SCOTUS agreed to hear (so far) and will issue rulings on by next June:

Williams v. Washington, No. 23-191

Issue(s): Whether exhaustion of state administrative remedies is required to bring claims under 42 U.S.C. § 1983 in state court.

Glossip v. Oklahoma, No. 22-7466

Issue(s): (1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it; and (4) whether the Oklahoma Court of Criminal Appeals' holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

Garland v. VanDerStok, No. 23-852

Issue(s): (1) Whether “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive” under 27 C.F.R. § 478.11 is a “firearm” regulated by the Gun Control Act of 1968; and (2) whether “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver” under 27 C.F.R. § 478.12(c) is a “frame or receiver” regulated by the act.

Lackey v. Stinnie, No. 23-621

Issue(s): (1) Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the merits under 42 U.S.C. § 1988; and (2) whether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under Section 1988.

Bufkin v. McDonough, No. 23-713

Issue(s): Whether the U.S. Court of Appeals for Veterans Claims must ensure that the benefit-of-the-doubt rule in 38 U.S.C. § 5107(b) was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1), which directs the court to “take due account” of the Department of Veterans Affairs’ application of that rule.

Royal Canin U.S.A. v. Wullschleger, No. 23-677

Issue(s): (1) Whether a post-removal amendment of a complaint to omit federal questions defeats federal-question subject matter jurisdiction pursuant to 28 U.S.C. § 1331; and (2) whether such a post-removal amendment of a complaint precludes a district court from exercising supplemental jurisdiction over the plaintiff’s remaining state-law claims pursuant to 28 U.S.C. § 1367.

Medical Marijuana v. Horn, No. 23-365

Issue(s): Whether economic harms resulting from personal injuries are injuries to “business or property by reason of” the defendant’s acts for purposes of a civil treble-damages action under the Racketeer Influenced and Corrupt Organizations Act.

Bouarfa v. Mayorkas, No. 23-583

Issue(s): Whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of nondiscretionary criteria.

City and County of San Francisco v. Environmental Protection Agency, No. 23-753

Issue(s): Whether the Clean Water Act allows the Environmental Protection Agency (or an authorized state) to impose generic prohibitions in National Pollutant Discharge Elimination System permits that subject permit-holders to enforcement for violating water quality standards without identifying specific limits to which their discharges must conform.

Delligatti v. U.S., No. 23-825

Issue(s): Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

Advocate Christ Medical Center v. Becerra, No. 23-715

Issue(s): Whether the phrase “entitled ... to benefits,” used twice in the same sentence of the Medicare Act, means the same thing for Medicare part A and Supplemental Social Security benefits, such that it includes all who meet basic program eligibility criteria, whether or not benefits are actually received.

Facebook v. Amalgamated Bank, No. 23-980

Issue(s): Whether risk disclosures are false or misleading when they do not disclose that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm.

E.M.D. Sales v. Carrera, No. 23-217

Issue(s): Whether the burden of proof that employers must satisfy to demonstrate the applicability of a Fair Labor Standards Act exemption is a mere preponderance of the evidence or clear and convincing evidence.

Kousisis v. U.S., No. 23-909

Issue(s): (1) Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme; (2) whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services; and (3) whether all contract rights are “property.”

NVIDIA Corp. v. E. Ohman J:or Fonder AB, No. 23-970

Issue(s): (1) Whether plaintiffs seeking to allege scienter under the Private Securities Litigation Reform Act based on allegations about internal company documents must plead with particularity the contents of those documents; and (2) whether plaintiffs can satisfy the Act's falsity requirement by relying on an expert opinion to substitute for particularized allegations of fact.

Wisconsin Bell v. U.S., ex rel. Todd Heath, No. 23-1127

Issue(s): Whether reimbursement requests submitted to the Federal Communications Commission's E-rate program are “claims” under the False Claims Act.

Feliciano v. Department of Transportation, No. 23-861

Issue(s): Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.

Republic of Hungary v. Simon, No. 23-867

Issue(s): (1) Whether historical commingling of assets suffices to establish that proceeds of seized property have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act; (2) whether a plaintiff must make out a valid claim that an exception to the FSIA applies at the pleading stage, rather than merely raising a plausible inference; and (3) whether a sovereign defendant bears the burden of producing evidence to affirmatively disprove that the proceeds of property taken in violation of international law have a commercial nexus with the United States under the expropriation exception to the FSIA.

Seven County Infrastructure Coalition v. Eagle County, Colorado, No. 23-975

Issue(s): Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.

Dewberry Group v. Dewberry Engineers, No. 23-900

Issue(s): Whether an award of the “defendant’s profits” under the Lanham Act can include an order for the defendant to disgorge the distinct profits of legally separate non-party corporate affiliates.

Stanley v. City of Sanford, Florida, No. 23-997

Issue(s): Whether, under the Americans with Disabilities Act, a former employee — who was qualified to perform her job and who earned post-employment benefits while employed — loses her right to sue over discrimination with respect to those benefits solely because she no longer holds her job.

U.S. v. Miller, No. 23-824

Issue(s): Whether a bankruptcy trustee may avoid a debtor’s tax payment to the United States under 11 U.S.C. § 544(b) when no actual creditor could have obtained relief under the applicable state fraudulent-transfer law outside of bankruptcy.

U.S. v. Skrmetti, No. 23-477

Issue(s): Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment.

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kvietka · 1 day ago

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In her 1996 novel, Fieldwork in Ukrainian Sex, Oksana Zabuzhko wrote that for Ukrainians, “Fear was passed on in the genes.” Zabuzhko, one of the most important living Ukrainian writers, was referring to the childhood fear of saying the wrong thing to the wrong person in the Soviet era. Anyone who approached you could be spying for the KGB, and if you let a careless word slip, the bad men would come “and put Daddy in prison.” But that line captures what Zabuzhko’s novel is about: the inherited fear of oblivion born between the hungry jaws of empire, or what she calls the “eternal Ukrainian curse of nonexistence.”

Fieldwork in Ukrainian Sex was a sensation when it was published in Ukraine, but it took 15 years for it to be translated to English. Even then, it didn’t find a U.S. readership until the full-scale Russian invasion in 2022. The book’s path is emblematic of the tough road to English translation, much less readership, for novels written in Ukrainian. Until this year, not a single novel translated from Ukrainian had been published by a major U.S. publisher.

Tanja Maljartschuk’s Forgottenness, the first to break that barrier, is a book about Ukrainian identity and the struggle against nonexistence. Originally published in 2016, when it won the BBC’s Ukrainian Book of the Year Award, it tells the story of a contemporary Ukrainian writer who becomes obsessed with Viacheslav Lypynskyi, an important Polish figure in the early 20th-century Ukrainian independence movement. Lypynskyi studied Ukrainian at university in the early 1900s, when teaching the language was scandalous; both Russians and Poles considered it “a dialect of either Russian or Polish, or both concurrently.” Printing Ukrainian works was also prohibited, “punishable by imprisonment or exile.”

Throughout history, Ukrainians have faced this paradox: a denial of their existence (Ukrainian isn’t a language) combined with brutal repression (and you are forbidden to speak it). As Maljartschuk writes, the struggle makes many “lose their minds.”

Forgottenness is full of characters shrugging, often in dramatic situations. While American critics often lament shrugs (along with nods and smiles) as lazy dialogue tags, for the Ukrainian writer, the shrug is an important gesture. Soviet-born U.S. writer Gary Shteyngart once wrote, somewhat tongue-in-cheek, that Ukraine’s coat of arms could be a man shrugging. This attitude can easily be mistaken for nihilism, but it is far more complex than that. On its most basic level, it comes from a learned acceptance that many situations are beyond one’s control. For generations of Ukrainians, this acceptance has been necessary to maintain sanity.

Ukrainians have found different ways of shrugging. In Forgottenness, the unnamed narrator remembers how her father, like many Ukrainian men of his generation, became immersed in kung fu in the 1980s, needing to feel like he could protect himself. Her grandfather, after feigning insanity to avoid military service, worked as a forced laborer, melting down church bells that were transported across the Soviet Union to be made into weapons; for years, he responded to most things with a joke, fueling himself on laughter.

She remembers how her grandmother was left at an orphanage by a father who would soon die in the Holodomor, Joseph Stalin’s terror famine of 1932-33, during which millions of Ukrainians starved to death. In an attempt to understand and connect with her family, the narrator asks her mother how this genealogy of suffering affected her. “Mom shrugged. ‘What was there to be affected by? That’s how things were, and that’s all there is to it.’”

The narrator has the opposite reaction. Her fascination with Lypynskyi, who almost lost his mind, falling into infirmity under the weight of defending the idea of a Ukrainian nation, comes partly from identifying with him. For the narrator, her inability to shrug leads to an existential crisis. She becomes terrified of the outside world. For months, she stops going outside. She begins to mop her floor relentlessly. She stands on her head to see things from a different perspective. She obsessively reads old newspapers in search of references to Lypynskyi. She is desperate to understand history. In a recurring image of the novel, she imagines time as a blue whale eating plankton by the millions. There is no mystery as to whom the plankton represent.

The historical parts of Forgottenness can be challenging, both to follow and to witness, for the simple reason that Ukrainian history is challenging. Lypynskyi lived through the early 20th century, a time when hope for a Ukrainian nation flickered before being brutally smothered.

As the narrator puts it, in the three years after the Russian Revolution, “Kyiv, like a loose woman, changed hands over ten times … and each new seizure ended in bloody purges.” Borders change, names change, empires come, empires go, and everyone dies. One reason that Maljartschuk’s is the first Ukrainian-language novel to break into U.S. commercial publishing is that so many Ukrainian writers from the 20th century were permanently silenced.

As Ukrainian writer Anastasia Levkova recently wrote, under Stalin, 500 of the foremost Ukrainian writers were executed. But she is quick to point out that Stalin was not solely responsible for silencing Ukrainian literature: For example, Vasyl Stus, one of the most famous Ukrainian poets of the 20th century, died in a Soviet forced labor camp decades after Stalin’s death. It is not just Stalin, nor is it just current Russian President Vladimir Putin—it is the Russian Empire that denies Ukrainian history, Ukrainian language, and Ukrainian existence.

Ukraine, one character in Forgottenness laments, “has so many million bodies but so few actual people.” The Russian Empire won’t even allow remembrance of the bodies. When the narrator goes to visit Lypynskyi’s grave, she cannot find it, because the cemetery’s headstones were bulldozed and used to line the floors of pigsties during collectivization. How is she to come to terms with her past when the empire has erased it?

As she’s fighting panic attacks, the narrator watches pigeons across the street building nests and laying eggs on neglected balconies. “Once in a while, the building’s owners would toss the eggs off the balconies onto the asphalt below. The pigeons would then sit on the roof and dispassionately observe the destruction of their offspring.” The pigeons shrug not because they don’t care, but because—what choice do they have?

The narrator’s inability to be like the pigeons almost kills her. But she can still think, write, and face her crisis head-on. In what might seem like an anti-climax, but is actually a triumph, she seeks out a therapist. As she puts it, in her part of the world, “the human head has one purpose—to eat.” Her mother condemns her for being a drama queen. But the narrator finds another woman, a professional, who listens and who cares. She begins to trust her. She starts talking her way out. Through language and solidarity with a fellow Ukrainian, she finds her way back to the world.

Maljartschuk, a Vienna-based Ukrainian novelist, wrote Forgottenness between the Maidan Revolution in 2014 and the full-scale Russian invasion of 2022, a period when Ukrainian art, newly liberated from colonial shackles, was blossoming. Its Ukrainian title, Zabuttya, means both “forgetfulness” and “oblivion,” and although this is not a novel about the war, no event has brought the threat of oblivion into more urgent focus than Russia’s invasion.

According to Forgottenness’ promotional materials, Norton’s inspiration for publishing the book was a March 2022 article in the New York Times about the urgency of bringing Ukrainian literature to the West after Russia’s invasion. Because of the sudden prominence of Ukraine in the American consciousness, there is the temptation for Americans to read Ukrainian literature today anthropologically, approaching it as a window into the country instead of an imaginary story about Ukrainian characters.

To be clear, this is not a criticism of the publisher: I am very grateful that Norton published Forgottenness, and I hope that more U.S. publishers will follow its lead. But how does it affect the reader’s experience to approach the book with images of rubble in mind? How does an American reader get around the trap of reading Ukrainian fiction like it’s nonfiction—of reading it for information rather than emotion—when current events are the reason for its translation into English? The narrator’s panic attacks are brought on not by missiles but by the chaos in her mind and the fear in her genes. Is it not disrespectful to read the book as a guide to understanding Ukraine in 2024?

Fortunately, Forgottenness shares a way to read itself and also to read Ukraine’s latest fight for survival. Maljartschuk personifies the statewide struggle against oblivion in the individual struggle to accept the things you can’t change while refusing to accept the things you can. The struggle, I believe, applies to both the narrator and Ukraine, past and present. The story speaks to what came immediately before the book was published: the Maidan Revolution, in which Ukrainians from every class and background risked their lives to drive out the pro-Russian puppet government, holding Independence Square in Kyiv for three months in the face of a harsh winter, police snipers, government-hired thugs, kidnappings, and torture. But Forgottenness can also speak to what will come after.

The narrator says of her grandfather feigning madness to get out of fighting: “Between a slavish existence and a heroic death, he chose the former, and only thanks to this choice did I become possible.” In her words, she is “the offspring of meekness in the face of power and fear in the face of death.”

But there is no trace of meekness in today’s Ukraine. A generation of Ukrainian writers and artists are now on the front lines of battle or in the rear guard, tirelessly fundraising for equipment for soldiers.

“Everything I’ve done in my life has only come to be by overcoming great fear,” Maljartschuk said in an interview following the 2022 invasion. Fear, as Zabuzhko wrote, lives in the genes. But fear need not paralyze. “Ukrainians are no longer victims,” Maljartschuk added, “but fighters.”

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