The Supreme Court recently heard arguments in US v. Skrmetti, a case challenging Tennessee’s ban on gender-affirming care for transgender youth. Solicitor General Elizabeth Prelogar argued against Tennessee’s law, but she made a significant concession, suggesting that not all state bans on such care for youth are unconstitutional. She pointed to West Virginia’s ban, which allows doctors to provide medical care if a teenager is at risk of self-harm or suicide. This exception, she argued, means the law can survive legal scrutiny because it aligns with the state’s interest in keeping children healthy and safe.
By presenting this example, Prelogar aimed to find a middle ground, offering justices who believe in states’ authority to regulate gender-affirming care an alternative to a sweeping ban. However, this concession reaffirms a longstanding legal narrative: Transgender people are granted legal and medical dignity only if they have suffered immensely.
In previous work, I have explored how the courts’ focus on trans suffering has shaped legal outcomes. This pattern continues in the current case. The impulse to equate trans rights with evidence of suffering reflects a history of pathologizing transgender identities to justify their legal recognition. For decades, courts have relied on portrayals of transgender people as unstable and disordered, turning hearings into public examinations of their anguish. Expert witnesses in the 1980s and 1990s testified using sensational language to illustrate trans litigants’ anguish, emphasizing their “sickness” through vivid descriptions of self-harm. One doctor testified in a 1966 case that the transsexual was “among the most miserable people I have ever met.” These characterizations influenced how judges viewed trans people and ruled on their cases.
Judges have been open about this view in their written opinions. For example, a judge in 1997, assessing a transgender litigant seeking medical care, opined that “someone eager to undergo this mutilation is plainly suffering from a profound psychiatric disorder.” Another opinion in 1988 described all four of the litigant’s previous attempts at self-castration and which instruments were used, while another in 2001 linked the litigant’s gender identity disorder to histories of depression, alcoholism, and suicidal impulses to highlight their torment.
This fixation on suffering became so entrenched that trans litigants began embracing it as a strategy, portraying themselves as “disordered patients” longing for hormones and surgery to “solve” their transness and become as close to cisgender as possible. This tactic has often succeeded in securing favorable outcomes for trans people individually but remains an obstacle to broader trans equality.
Under this framework, there is no room for the happy trans person. It codifies suffering as a prerequisite for rights, incentivizing trans people to suffer. Under laws like West Virginia’s, trans teenagers must be on the brink of crisis—teetering on self-harm or suicide—before doctors are allowed to help them. Anything less, and the law deems their need for care unworthy. This creates an incentive for trans teens to be, or at least present as, suicidal to receive treatment.
Misery, quite literally, becomes legally mandatory if you are trans and want civil rights.
This narrative isn’t just cruel; it’s false. The trans community is not a monolith of despair. Trans people of all ages, especially those supported by their loved ones, live vibrant, joyous lives. If a trans person can only succeed legally by arguing for their own marginalization, and if feeling happy and proud of their identity disadvantages them in court, then trans people will never truly have legal equality.
So, why are we stuck here? This framework persists because admitting otherwise would destabilize the assumption that being cisgender is natural and being transgender is disordered. If someone can be satisfied, even happy, with their life or their body and still seek to transition, then being transgender is not inherently linked to suffering. Moreover, it would mean that being transgender is just one of many ways people experience and express themselves, and it can even be good and healthy. Accepting this would shatter the premise that the gender binary is fixed, that cisgender experiences are the baseline for health and normalcy, and that gender variance is an aberration that needs to be corrected—a set of ideas that many people in our country are still resisting. Advocates recognize that the “miserable trans person” narrative is easier to exploit than to defeat.
Solicitor General Prelogar’s concession is understandable. In the political firestorm of transgender rights, it seems unfathomable that this conservative court would ever vote to protect trans rights, so presenting a compromise is clever. Yet, in doing so, she has reminded us that transgender rights are conditioned on putting transgender people through as much suffering as possible so that the court can feel comfortable relieving it.
Someday, trans rights advocates will need to reckon with this framing. True trans equality will require dismantling the notion that gender variance is a disorder to be cured or pitied and instead affirming that transgender people deserve dignity and access to care regardless of their level of distress. Until we shift this narrative, the law will continue to treat trans people as a sickness to be treated rather than individuals worthy of inherent respect and justice.
Julian Applebaum is a Truman Scholar and LGBTQ+ rights advocate pursuing a legal career focused on advancing transgender rights. He holds a BA from Macalester College and an MPhil from the University of Oxford’s Centre of Socio-Legal Studies, where his research explored the legal challenges faced by queer nightlife in London. Julian has worked with the ACLU, both in Minnesota and Washington, D.C., and has authored legislation to protect transgender students in public schools. He is a published researcher in transgender legal studies and aspires to use litigation and policy to address the growing legal and political challenges faced by the trans community.
Read more:
