The Supreme Court disregarded the issue of precedent — stare decisis, a Latin term meaning “let the decision stand” — when, in 2022, its Dobbs v. Jackson Women’s Health Organization decision overturned Roe v. Wade (1973), effectively unraveling the legal right to abortion for nearly the last 50 years. The Court left it to the states to decide whether to legalize reproductive rights.
In a concurring opinion, “Justice” Clarence Thomas wrote that the Supreme Court “should reconsider” other previous rulings granting the rights to contraception access, same-sex relationships, and same-sex marriage (aka. marriage equality).
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Since Dobbs, many state legislatures have banned reproductive healthcare for pregnant people and those who wish to become pregnant, as well as the safe and effective drugs used in medication abortions — mifepristone and misoprostol — and also IVF (in vitro fertilization).
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This has resulted in several cases of women bleeding to death after having a miscarriage because doctors fear that if they treat them, they may be breaking the laws of their states.
The denial of bodily autonomy continues
The U.S. Supreme Court issued another destructive ruling on June 18 in United States v. Skrmetti, upholding Tennessee’s prohibition on gender-affirming healthcare for transgender youth.
This 6-3 decision came down on partisan lines, with the Court’s Republican appointees opposing trans rights and the Democratic appointees supporting trans rights.
Chief Justice John Roberts wrote the opinion for the majority, with Justices Amy Coney Barrett, Samuel Alito, and Clarence Thomas writing concurring majority opinions. Justices Sonia Sotomayor and Elena Kagan wrote dissenting opinions.
The plaintiffs arguing for trans rights claimed that the Tennessee law was unconstitutional under the Equal Protection Clause of the U.S. Constitution’s 14th Amendment, which promises equal treatment under the law regardless of sex and other characteristics.
The Court’s ruling, however, asserted that Tennessee’s ban on gender-affirming care does not discriminate on the basis of sex or trans status. The ruling will now allow the 25 states that currently have such bans to continue to enforce them.
With this draconian betrayal of trans youth, families will now have to make insufferable choices — in some cases, whether to flee their state or separate their families while taking on huge financial liabilities or taking major legal risks to provide young people the ability to access medically necessary care.
Previously in Alabama, a majority of judges on the U.S. 11th Circuit Court of Appeals declined to reconsider Alabama’s ban on gender-affirming care, which ruled that parents do not have a right to allow gender-affirming care for young people. Previously, a three-judge panel sided with the Alabama legislature’s ban on gender-affirming care.
Alabama’s 2022 law makes it a felony, punishable by up to 10 years in prison, for doctors to prescribe puberty blockers or hormones to a transgender person under the age of 19. The law also prohibits genital surgeries, even though physicians have not performed these on minors in the state.
Backlash and scapegoating of trans people
President Joe Biden, shortly after taking office, signed an executive order allowing trans troops to serve openly in the U.S. military, effectively repealing the ban that Trump put in place during his first presidential term.
However, in May, the Supreme Court ruled that the Trump administration has the right to enforce Trump’s January 20 executive order prohibiting transgender people from serving in the U.S. military. The order went into effect on February 26.
Donald Trump, amid his self-proclaimed “retribution” campaign, has specifically targeted members of the trans community in his efforts to completely erase their existence from the human community. (No doubt he would attempt to wipe out gender diversity within non-human species too, if he could.)
Trump also signed a mean-spirited and petty presidential executive order in his attempt to rewrite history by expunging trans activism and trans lives. The order demanded that trans people be deleted from New York’s Stonewall Inn National Monument website developed by the National Park Service. The acronym that once read LGBTQ+ has been reduced to LGB, standing for lesbian, gay, and bisexual.
Did the people who voted for Trump to rise to the Oval Office a second time really want him to spend his hours behind the Resolute Desk scrubbing trans people from U.S. history?
During his short second regime, another of Trump’s executive orders bans trans athletes from school and professional sports, from using the public facilities of their choice, and from choosing to have gender-affirming procedures to maintain their bodily autonomy because, to Trump, “there are only two genders: male and female.” All else, to Trump, contradicts the natural world.
He even signed an executive order to this effect declaring that there are only two genders. With this came a series of specific policy changes. Titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” the order describes biological sex as being determined by the size of one’s reproductive cells: small for men and large for women.
Government documents, including passports, visas, and employee records, can only show “male” or “female.” The government will no longer pay for trans-related health care, such as for government employees, military personnel, or federal prisoners.
In addition, all trans women incarcerated in federal prisons he ordered thrown into male prison facilities, despite multiple court rulings blocking the president’s policy.
In another of Trump’s orders, the federal government will no longer even recognize the existence of trans people and will prevent federal funds from being spent on any programs that do so.
The order says, “Federal funds shall not be used to promote gender ideology” and it directs the Bureau of Prisons to revise its policies to ensure that federal inmates do not receive “any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”
Recently, Secretary of State Marco Rubio has banned rainbow flags from being flown at U.S. embassies.
The Trump administration, as was the case in other authoritarian regimes throughout history, has attempted to limit the bodily autonomy of women, trans, intersex, and lesbian, gay, and bisexual people for the purpose of controlling their minds and limiting their social power.
A “defined norm” and “lack of prior claim”
In her pioneer book, Homophobia: A Weapon of Sexism, Suzanne Pharr describes a series of elements she finds common to the multiple forms of oppression. Such elements include what she refers to as a “defined norm” and a “lack of prior claim,” among many others.
Pharr explains a “defined norm” as “a standard of rightness and often of righteousness wherein all others are judged in relation to it. This norm must be backed up with institutional power, economic power, and both institutional and individual violence.”
Another way “the defined norm manages to maintain its power and control…” is by what Pharr refers to as the element or system of “lack of prior claim.”
This, according to Pharr, “means that if you weren’t there when the original document (the Constitution, for example) was written, or when the organization was first created, then you have no right to inclusion….Those who seek their rights, who seek inclusion, who seek to control their own lives instead of having their lives controlled are the people who fall outside the norm…. They are the Other.”
In the original and unamended version of the U.S. Constitution, for example, since only European-heritage male landowners had the right to vote, all others — including women and people of color (those outside the defined norm and who lacked prior claim) — had to fight long and difficult battles against strong forces to gain access to the voting booth, often under the threat of implied and actual violence against them.
Some who continue to oppose marriage equality for same-sex couples claim that this legal right undermines the sanctity of marriage, and possibly leads to the destruction of society, often using religious sanctions as their justification.
Those in power in the United States have excluded women’s reproductive freedoms, and trans, intersex, lesbian, gay, and bisexual peoples’ bodily autonomy from the category of “defined norms.”
In addition, by viewing specifically trans, intersex, lesbian, gay, and bisexual people as the other, the founding national and institutional policy documents have likewise excluded their civil and human rights from a prior claim. As a result, a spate of state legislatures have either passed or have considered passing laws prohibiting trans (and by implication, intersex) people from entering public facilities that conform to their gender identities but may differ from the sex assigned to them on their birth certificates.
And yes, the denial of bodily autonomy of the Other conforms to a patriarchal heteronormative Christian white nationalist playbook:
Historian Amanda Tyler defines Christian nationalism as,
…a political ideology and cultural framework that seeks to merge American and Christian identities, distorting both the Christian faith and America’s constitutional democracy. Christian nationalism relies on the mythological founding of the United States as a “Christian nation,” singled out for God’s providence in order to fulfill God’s purposes on earth. Christian nationalism demands a privileged place for Christianity in public life, buttressed by the active support of government at all levels.
Anthea Butler distinguishes, more specifically, what is white Christian nationalism:
Simply put, it is the belief that America’s founding is based on Christian principles, white protestant Christianity is the operational religion of the land, and that Christianity should be the foundation of how the nation develops its laws, principles and policies.
So, don’t be fooled! The recent Supreme Court case of United States v. Skrmetti, has less to do with supposedly protecting trans youth and more to do with reaffirming a patriarchal heteronormative Christian white nationalist dominant norm.
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