• The Supreme Court will hear a landmark case over trans rights today. In U.S. v. Skrmetti, the justices will weigh the constitutionality of a 2023 Tennessee law that bans gender-affirming care for trans minors. A group of families, a doctor, the Biden Administration, and civil rights groups are challenging the law. Sruti Swaminathan, a staff attorney for the ACLU’s LGBTQ and HIV project, talks about what’s at stake in the case.
• And in headlines: South Korean President Yoon Suk Seoul reversed his earlier decision to declare martial law, Ukrainian President Volodymyr Zelenskyy suggested he’s open to negotiating a peace deal with Russia, and Iowa officials sued the Biden administration to get the citizenship status of more than 2,000 registered voters.

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TRANSCRIPT

Jane Coaston: It’s Wednesday, December 4th. I’m Jane Coaston. And this is What a Day. The show that didn’t steal 2500 pies from a Michelin starred chef in northern England. And you can’t prove it if we did. [music break] On today’s show, South Korea’s president called for martial law and then took it back? And Trump’s lawyers look to Hunter Biden’s pardon as a defense to drop his hush money case. Let’s get into it. Today, the Supreme Court is taking up a landmark case for trans rights. The justices will hear arguments in U.S. versus Skrmetti. The case deals with the constitutionality of a 2023 Tennessee law that bans gender affirming care for trans minors in the state. The law bars treatments like hormone therapy, puberty blockers, and gender transition surgery, despite the fact that surgery is almost never performed on minors. Tennessee isn’t alone. About half of states have similar laws banning gender affirming care for people under the age of 18. Most of them are facing lawsuits, too. And major medical groups like the American Academy of Pediatrics, the Endocrine Society and the American Medical Association all support gender affirming care. The AMA says it’s medically necessary health care and that denying it to patients can have really dire physical and mental health consequences. A group of families, a doctor, the Biden administration, and civil rights groups like the ACLU are challenging Tennessee’s law. ACLU lawyer Chase Strangio is among the lawyers arguing against Tennessee’s law before the justices today. He’s also the first openly trans person to ever argue before the court. He told Democracy Now that the law is textbook sex discrimination. 

[clip of Chase Strangio] So if you take, for example, a transgender adolescent boy, he cannot receive testosterone to live consistent with his male identity because he was assigned female at birth. Had he been assigned male at birth, he could receive that same medication for that same purpose. That is sex discrimination and Tennessee has to justify it. 

Jane Coaston: But given the court’s conservative supermajority and its recent history of throwing out decades old, very established legal precedents like the right to an abortion or affirmative action, there’s lots of reasons to worry about their decision and what it could mean for other civil rights protections. So for more on the case and its potential consequences, I spoke with another ACLU lawyer. Sruti Swaminathan is a staff attorney for the LGBTQ and HIV Project. They’re a part of the team that helped prep the case and will be in the courtroom for oral arguments. Sruti, welcome to What a Day. 

Sruti Swaminathan: Thank you for having me. 

Jane Coaston: So can you give me a little bit of backstory on the case before the court today? What will the justices be weighing? 

Sruti Swaminathan: Sure. So I can give you the whole story. You know, we filed this case in April of 2023, um just level setting, you know, with respect to health care. More than half the states have enacted bans on the provision of gender affirming medical care for these young people. And as a result, about like 39% of trans youth living in this country cannot access care in the state that they lived in. And this is care that’s approved by all the major medical groups in the U.S., that’s recommended by their doctors that their parents want them to receive and that most importantly, they want. And, you know, when we filed this lawsuit, the United States joined us in the lawsuit in support of our plaintiffs in our case. Which is, you know, extremely important because it’s not something that we can perhaps expect in the next four years. So for the government to step in and show their support for these young people was pretty huge. And so the only question before the Supreme Court is whether S.B. one, Tennessee’s law, violates the equal protection guarantee of the 14th Amendment. 

Jane Coaston: So just to get down to brass tacks, what medical care is actually at stake for trans kids in this case? 

Sruti Swaminathan: Right. So I think it’s really important to discuss what’s at issue here and what’s not. And so the only treatments that we’re talking about are puberty delaying medications, they are often called puberty blockers and hormone therapy, which is estrogen and testosterone. Our case does not focus on surgical care. And I think that’s a big distinction because in the media, there’s all of this focus on–

Jane Coaston: Right. 

Sruti Swaminathan: –young people accessing surgeries. Not happening, not a part of our case. 

Jane Coaston: So let’s say that this conservative court, which granted I mean, Bostock happened, we remember that. But conservative court, let’s say it sides with the states. Could that translate to broader risks for the kind of care trans adults could be able to get in the future? 

Sruti Swaminathan: I think it absolutely has implications for other forms of care. And so, for example, you know, Tennessee’s law, S.B. One, it says that no medical treatment inconsistent with your sex if you are a minor. And it goes even further to say that Tennessee has a compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty. So when the Sixth Circuit in this case, which is the court that reversed our good decision that we had at the district court um when the Sixth Circuit said this is not about sex, it’s just a regulation of medicine. It’s really difficult to stand behind. So if Congress passed a ban on medical care for trans people of all ages and the ban said no medical care, if it is inconsistent with sex assigned at birth. Under the Sixth Circuit’s logic, that would also be reasonable. You know, this is a principle that could extend to other forms of restrictions on health care for adults as well. And that’s what’s so dangerous about the Sixth Circuit’s ruling. And that’s why we brought this case to the Supreme Court. 

Jane Coaston: It’s interesting also because there are tons of forms of gender affirming care that cis people have that make them feel more the way that they want to feel. And yet we don’t talk about that as much. But this–

Sruti Swaminathan: Yeah. 

Jane Coaston: –case also falls into a larger legislative push in Republican controlled states to restrict life for trans people. With bathroom bans, sports bans, things like that. 

Sruti Swaminathan: Yeah. 

Jane Coaston: So even if the court does side with the kids and their families, what does the legal landscape of anti-trans legislation still look like? We’re in this weird patchwork where states like California or cities like D.C. can be safe spaces for trans people, whereas states like Oklahoma and Mississippi, where lots of trans people do live, are not safe. 

Sruti Swaminathan: Yeah, I think that’s the question I get most often. Like what could this ruling mean broadly and narrowly? And so let’s take a loss first, right? If we lose, the impact of that ruling is really going to depend on the scope and reasoning of the majority decision. So if the decision holds that discrimination based on gender identity is not a form of sex discrimination under the Constitution, and that discrimination against trans people specifically only receives the lowest level of scrutiny, that’s going to have the most sweeping impact. Right. On other issues as well. Sports, bathrooms, identity documents. If instead the court rules, as Tennessee’s arguing here, that this law simply treats different medical conditions differently, that’s going to have the most limited impact, but it’s still going to keep the existing bans on the board across the nation. If, on the other hand, we prevail, then it’s likely going to mean that all of the existing bans on minors accessing gender affirming care will also fall, and if the court agrees with us that the heightened scrutiny should apply here because discrimination against trans people constitutes sex discrimination under the equal protection clause, that’s going to have the most sweeping impact and it’s going to bolster our existing challenges in all of those other spaces that you’re talking about in terms of trans people’s access to public life, access to restrooms, and sports and other activities, as well as the identity documents that I was talking about. So it really depends on on how the court rules here and to how far they’re you know going to extend their ruling. But it could have very positive implications for our other cases, hopefully.

Jane Coaston: Your colleague who will be arguing the case, Chase Strangio, has been saying that the legal crackdowns on trans care in recent years is directly tied to the Supreme Court’s decision in Dobbs to return the decision about abortion legality to the states. How are these cases connected? 

Sruti Swaminathan: I think they’re connected because both implicate a form of control by the government on our bodies. Both are imposing restrictions on medically necessary lifesaving care. And I think the way that the two sort of movements, you know, the the reproductive freedom movement and the LGBTQ movement have always been in parallel is very, very telling of of the state sort of superimposing their idea of of what’s harmful and helpful to an individual in place of the individual’s own decision making. SB One uses sex as a sort of metric to define which treatments are prohibited and which ones are permissible. So it’s really not, you know, the same type of analysis in terms of a legal landscape, but it’s it’s the same sort of rhetoric used to control people and control their bodies. And that’s, you know, it’s just so dangerous. 

Jane Coaston: So depending on how the justices rule, how could their decision in this case affect a broader swath of civil rights protections for other members of the LGBTQ community, women and the medical providers who treat them? 

Sruti Swaminathan: Yeah, it’s just it’s so, you know, scary, the world we’re living in where individuals are not feeling safe in their own bodies. So, you know, this is about limiting bodily autonomy. This is about a uniquely burdensome regulation of medicine that’s driven by animus for a specific group of people. This is about going from no regulation to categorical bans on an entire body of health care. This is about government intrusion into one of the most personal aspects of one’s life. And frankly, this is about the dangers of institutionalizing discrimination against one of the most vulnerable groups of people in this country. And I think the reason that this is happening is because trans people, we we challenge the notion that any of us can be confined to a box by our government for purposes of control. And frankly, this is about our ability to survive. So the question that begs from this is what will they take away next? We have, you know, restrooms being policed. We have our health care. We have our ability to talk about ourselves in school and the curriculum that we’re learning being impacted by, you know, the desire to remove gender and race and other topics out of sort of the school system. And I think all of these sort of things compounding make it a really difficult place for a young person to just be a young person instead of worrying about studying for their test, they’re worried about whether they can access the health care that allows them to defog their brain and be present in their lives. And so there are just wide reaching implications for for the entire community. And, you know, this isn’t just about like marriage equality anymore. This is this is about all of us, you know, facing the threat of having fundamental rights taken away from us. 

Jane Coaston: Sruti, thank you so much for joining me. 

Sruti Swaminathan: Thank you so much for having me. And thank you to everyone who is supporting us today in our case at the Supreme Court. 

Jane Coaston: That was my conversation with Sruti Swaminathan, ACLU staff attorney for the LGBTQ project. We’ll get to more of the news in a moment, but if you like the show, make sure to subscribe. Leave a five star review on Apple Podcasts. Watch us on YouTube and share with your friends. More to come after some ads. [music break]

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Jane Coaston: And now the news. 

[sung] Headlines. 

[clip of translated South Korean President Yoon Suk Yeol] I hereby declare an emergency martial law. 

Jane Coaston: South Korean President Yoon Suk Yeol shocked world leaders on Tuesday when he declared martial law in an unexpected televised address. 

[clip of translated South Korean President Yoon Suk Yeol] In order to defend the Free Republic of Korea from the threat of North Korean communist forces and to eradicate the shameless pro north anti-state forces that are depriving our people of their freedom and happiness. 

Jane Coaston: Yoon accused the nation’s parliament of, quote, “trying to overthrow free democracy,” without any evidence. He mostly just brought up how they always pushed back on his own political agenda. But lawmakers were quick to veto Yoon’s martial law declaration, highlighting the long standing tension between the president’s conservative government and the country’s democratic parliament. And then, less than six hours later, Yoon reversed the order. Martial law would have given Yoon the power to ban all political activities, including citizen led protests, as well as giving him complete control of the news media. You know, like a dictator. The last time South Korea declared martial law was over 40 years ago before the country became a democracy. Ukrainian President Volodymyr Zelenskyy suggested over the past week that he’s open to negotiating a peace deal with Russia, but it would come with strings attached, aka letting Russia keep its occupied territories in exchange for Ukraine’s NATO membership. Zelenskyy told Sky News through an interpreter, it’s an option, even though no offer to join the alliance has been extended. 

[clip of translated Ukrainian President Volodymyr Zelenskyy] The fact is that it is a solution to stop the hot stage of the war because we can just give the NATO membership to the part of Ukraine that is under our control. 

Jane Coaston: Zelenskyy said Ukraine needs NATO protection now. He said its country can get its other territories back, quote, “diplomatically later on.” NATO’s Secretary General Mark Rutte tried to dodge the topic of Ukraine’s membership during a press conference Tuesday. 

[clip of Mark Rutte] I would now argue that Ukraine doesn’t need more ideas on what a peace process could look like. 

Jane Coaston: Instead, Rutte told reporters, it’s more important to strengthen Ukraine’s military with additional aid and missile defense. Ukraine first raised the idea of joining NATO in 2008. Membership was also a big part of the victory plan Zelenskyy discussed with allies in October. The election has been decided for Trump, but Iowa Republicans are still trying to claim voter fraud. On Tuesday, Iowa officials sued the Biden administration to get the citizenship status of more than 2000 registered voters from the Department of Homeland Security. Iowa Secretary of State Paul Pate claimed in a statement that he needs the data to, quote, “ensure that no Iowans vote was canceled by an illegal non-citizen vote.” Pate has been asking for this information for months. Here he is in October. 

[clip of Paul Pate] That’s why we’ve asked the county auditors through the poll workers to challenge those votes, to allow them to confirm their citizenship status so that we can count their vote as well. 

Jane Coaston: As a reminder, there are no widespread instances of non-citizens voting. The Des Moines Register reported that over 500 people on Pate’s list proved they’re citizens and cast their ballot. The Register said that most of the others didn’t vote in the 2024 election. President elect Donald Trump may be a convicted felon, but he’s trying to get out of it. And he’s using President Joe Biden’s pardon of his son Hunter earlier this week to do it. Trump’s lawyers on Monday asked New York Justice Juan Merchan to throw out the 34 convictions in his hush money case. In the paperwork, Trump’s lawyers claimed that like Hunter Biden, Trump was targeted for political reasons. They also argued that keeping the case going would disrupt Trump’s work as president. Justice Merchan indefinitely postponed Trump’s sentencing after the election. He hasn’t set a timetable for his decision, but he could either dismiss the case or sentence Trump with up to four years in prison. And that’s the news. [music break] One more thing, I want to tell you about a story I’ve been thinking about a lot. It’s from France and it’s pretty difficult to talk about and hard to hear because it deals with sexual assault and misogyny. I wanted to warn you about that, but I think it’s important to talk about, especially now. In Mazon, France,  Gisèle Pelicot was married to a man named Dominique for decades. They had three adult children, and Gisèle believed that they had a perfect marriage. Then in 2020, she received news that stunned her, her family, and honestly, the entire country. For over nine years, her husband had been drugging her, raping her, and inviting other men to come over to do the same, filming the assaults and saving them on his computer. The only reason this horrific crime came to light at all is that Dominique was arrested for taking upskirt photos of women. And in the investigation, police examined his computer and found a folder literally titled Abuses. In total, she was assaulted by at least 72 men, 50 of whom stood trial this fall alongside her now ex-husband. In the United States, 33% of sexual assaults are committed by a current or former partner or spouse. If you’re a person on the Internet, maybe you have noticed a rise in casual or in some cases very, very serious misogyny on social media platforms or heck, even in your emails. It seems like all over the Internet people are talking about how the real problem of the world is women. Women going to college or not going to college or not getting married or maybe they are getting married, but not in the right way, or they aren’t having kids or having too many kids or dancing or not dancing or not being hot or being too hot or voting or not voting. There are people seriously talking seriously about repealing the 19th Amendment or arguing that women shouldn’t have jobs or that maybe the Taliban has it right and actually women shouldn’t have their voices heard at all. Some of that is probably performative online bullshit and probably some of it isn’t. That worries me. But then I remember Gisèle Pelicot because Gisèle decided that she didn’t want to remain anonymous and she demanded a public trial for her husband and all of the men who assaulted her. She even demanded that the tapes her husband made of the assaults be played in court. While the perpetrators have hidden their faces and tried to explain away their actions. She has stood strong. She told the court, I’ve decided not to be ashamed. I’ve done nothing wrong. And added, I’m not expressing hatred or hate, but I am determined that things change in this society. Women across France have come to the court in Avignon to express support for Gisèle, putting up posters and giving her a round of applause every day as she enters and leaves. [sound of clapping] Misogyny has a cost, a real one. We see that in cases like Gisèle’s and in sexual assault cases here at home that are so incredibly common. Treating women as problems to be solved and not as people being people has consequences. And I hope I desperately hope that we can remember that. [music break]

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Jane Coaston: That’s all for today. If you like the show, make sure you subscribe. Leave a review. Respectfully steal some pies and tell your friends to listen. And if you’re into reading and not just about what you’d do with 2500 pies. Because that is, to be clear, a lot of pies, like me. What a Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Jane Coaston. And seriously, what are you going to do with 2500 pies? [music break] What a Day is a production of Crooked Media. It’s recorded and mixed by Desmond Taylor. Our associate producer is Raven Yamamoto. Our producer is Michell Eloy. We had production help today from Tyler Hill, Johanna Case, Joseph Dutra, Greg Walters and Julia Claire. Our senior producer is Erica Morrison and our executive producer is Adriene Hill. Our theme music is by Colin Gilliard and Kashaka. 

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