ADRIAN MA, HOST:
For many lawyers, arguing a case before the Supreme Court would be a dream come true. But for attorney Chase Strangio, he says it was kind of his nightmare.
CHASE STRANGIO: I had to overcome a lot of self-doubt, and I think probably a lot of doubt that other people had in me to put myself in that position.
MA: Chase Strangio is a lawyer with the American Civil Liberties Union and the subject of a new documentary called "Heightened Scrutiny." It follows Strangio as he prepares to argue perhaps the biggest case of his career. In U.S. v. Skrmetti, his clients challenged a Tennessee law banning gender-affirming care for minors. Last month, the Supreme Court ruled 6-3 to uphold the ban as constitutional. Although the justices ruled against him, Strangio made history in the process. He was the first openly trans person to argue before the court, and that spotlight brought threats and online hate. When I spoke to Strangio on Friday, I asked what it was like opening up in such a personal film.
STRANGIO: It was definitely difficult to have a camera around, and it was something that I really struggled with throughout the filming process. And in many circumstances, I decided that we couldn't have a traditional camera there and people close to me could film me on their iPhone. So a lot of the more vulnerable moments are actually iPhone footage from people close to me in my life because the idea of having a crew around me just felt completely incompatible with my emotional needs in those moments. But for the last 10 years, especially as trans lives and trans bodies have become part of the public's scrutiny, at the same time that so many people acknowledge that they don't have, at least knowingly, trans people close to them in their lives, I think there is a real importance for those of us who are able to try to make our full humanity part of what people see.
MA: I want to talk about some of the things that you bring up in your documentary. A lot of what's discussed in it is not the legal system or the laws, but it's about journalism and its coverage of transgender rights. You say in the film that media coverage is, in a sense, creating the law. What did you mean by that?
STRANGIO: Well, what I meant by that in the context of the film is that what I have been tracking over the last decade of my career is the way in which we can see the narratives put forth in the media about trans people finding their way into legislative debate and then codified laws and then court decisions. And so when you have what I think of as outsized scrutiny on trans people, on our health care, in the media, it creates a sense of a problem to be solved legislatively. And when we see tens of thousands of words scrutinizing health care for a tiny, tiny subset of the population, and even within that tiny subset of the population, the percentage of people who access this care is extraordinarily small.
Maybe 900 people in the whole United States receive puberty blockers, for example, to treat gender dysphoria. And yet because there's so much media coverage, you start to get the sense that this is some sort of conspiracy, some sort of problem. And then you start to see legislative proposals that respond to that problem. And those legislative proposals don't cite to medical guidelines. They don't cite to the experience of expert doctors. What they cite to is the media.
MA: The film ends on kind of a cliffhanger, awaiting the Supreme Court's decision. But of course, we know now that the court did not rule the way that you were hoping. So where does the fight for transgender rights across the country go from here?
STRANGIO: Yeah. So the court ultimately sides with Tennessee, allows them to continue to enforce their law and decides that this is not a law that discriminates based on sex. It does not discriminate against people for being transgender and, instead, discriminates on bases that we can just defer to the legislature on. And, of course, we disagree with that. As Justice Sotomayor says in dissent, in order to reach that conclusion, they had to distort logic and precedent to get to that result. And, of course, I agree with that.
And also I would say two things. One is that it is a narrow opinion, doctrinally. It is disappointing, of course, but it doesn't answer some of the other bigger questions. So we fight on to, for example, argue whether discrimination against trans people as a group gets this heightened scrutiny, separate and apart from discrimination based on sex, and also leaves open some questions about the application of the courts' decisions, protecting trans people in other contexts. So there are lots of avenues to continue to fight in the lower courts. And I think perhaps more importantly, that win or lose in court, these are fights that are dependent upon employing multiple strategies.
And if you look at major, you know, seminal civil rights cases, whether it's Brown v. Board of Education, Roe v. Wade, that was ultimately obviously overturned, they were not self-actualizing in the sense that we did not end racial segregation in schools in 1954. It is a persistent problem in this country. We have all sorts of ways in which de facto discrimination lingers after courts strike down, you know, de jure or explicit discrimination in law. And so I think the fight is what it always needs to be, which is building power for communities, building alliances, cross-movement, so that we can continue to effectuate the type of change we need in the world.
MA: Well, I think that sort of gets at one of the questions that I was interested in getting your perspective on, which is the timing of the case. You know, some people have argued that maybe now, even if they are supportive of trans rights generally, now might not have been the best time to bring this case before this Supreme Court with a conservative majority. What do you say to that?
STRANGIO: I think I say two things. One is that if you ask the question in a vacuum, where the court is - you can decide what the court considers and you can control every aspect of litigation, then sure, maybe you might say, let's keep trans rights away from this court. But that was not the reality that we were facing. There were many, many cases attacking trans rights in federal court brought by our opponents, arguing that protecting trans people is a violation of cis people's rights. So many cases were going to the Supreme Court.
And, you know, from the perspective of advocates, in 2023, when we sought review of this case from the Supreme Court, the reality on the ground was that families were uprooting their lives, people were losing their health care. It seemed to be, from our perspective, one of the most dire circumstances facing our communities. And so there wasn't really a choice in terms of doing nothing. Doing nothing would mean people continue to suffer, and we would still get the Supreme Court weighing in on transgender rights.
And then the other thing I would offer is every single civil rights movement has been told that they are moving too fast and doing things at the wrong time. Every time you ask for something that helps your community survive when your community is being demonized, you are told you're doing it wrong. And that doesn't mean we don't have to act strategically. It doesn't mean we don't have a lot of reckonings every single day and robust conversations about how to best move forward. But the reality is that no matter what we choose or choose not to do, there are people who say we are doing it wrong, and we have to fight for our communities with the tools that we have.
MA: You know, the political environment and, to a certain extent, public opinion seems increasingly hostile to transgender rights right now. How do you keep going in the face of all that?
STRANGIO: You know, I keep going because I believe in my heart that we will ultimately prevail. I keep going because I am very proud of and I love being trans. I love being part of the LGBT community. And though I am only 42 years old, and maybe that's old to some people, I've seen a lot of setbacks and progress, even in my lifetime, and I've seen how we can push through things that seemed impossible at the time. I know how public opinion turns against a community. I've watched it happen. I've watched it happen with gay people, with immigrants, with trans people, with people of color. And the reality is that a lot of times it's through manufactured fear, and through that manufactured fear, there is also the possibility that over time, you can erode that fear and build connection. It's not going to be tomorrow. It may not even be in 10 years, but we can move through that fear. And if we give up, we never will.
MA: That's ACLU lawyer Chase Strangio. Chase, thank you so much for joining us.
STRANGIO: Thanks so much for having me.
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