When the Supreme Court heard oral arguments last week in United States v. Skrmetti, what began as a case about youth transition quickly revealed a deeper question: what constitutes a healthy body? If a doctor and a patient disagree about what health and wholeness looks like, how can their claims about the human person be assessed?
The questions the justices posed revealed a notable split between two models of medicine in our time. In one model, which seems to be gaining more purchase today, the doctor is a purveyor of goods and services, providing medical aids to facilitate the patient’s self-expression. In the other, more traditional framework, the doctor is a practitioner of the art and science of medicine, working to maintain and restore the healthy functioning of the human body.
The law sets various limits on what kind of care a prospective patient can receive from a doctor, even if a particular doctor is willing and eager to sell. In Skrmetti, the Court was asked to assess a Tennessee law that bans puberty blockers, cross-sex hormones, and surgery when prescribed to minors for the purposes of transition.
Supporters of youth transition—namely, the Biden Administration and the American Civil Liberties Union (ACLU)—sued to overturn the law, arguing that it was a form of sex discrimination. Technically, the law doesn’t apply differently to boys versus girls—neither sex is allowed to pursue medical transition as minors. That is, while Tennessee allows doctors to prescribe puberty blockers temporarily to a child of either sex experiencing “precocious puberty” (before the age of 8 or 9), the law does not allow a doctor to prescribe blockers to boys or girls who want to avoid going through the puberty of their natal sex. But, the lawyers argued, aided by questions from the Court’s more liberal justices, that sex discrimination creeps in a different way.
During oral arguments, those lawyers and justices frequently conflated both conditions as “unwanted puberty,” arguing that they should be treated in the same way. But the key question, from my perspective, is this: does the unwantedness of puberty render what would otherwise be a sign of health into a symptom of disease? Do a patient’s desires trump the physician’s duty to seek the healthy functioning of the human body?
What Counts as a “Medical Purpose”?
Justice Sonia Sotomayor posed the most clarifying hypothetical exploring this question during oral argument. When considering the argument that the law discriminated by sex, she asked J. Matthew Rice, Tennessee’s Solicitor General, “If a sex-neutral-looking child walks into a doctor and says, I don’t want to grow breasts, doesn’t the doctor have to know whether it’s a girl or a boy before they prescribe the drug?”
Sotomayor’s reasoning was simple: if the doctor determined a treatment plan solely based on the child’s sex, the law was discriminating by sex. There was a known treatment for unwanted breasts, but the doctor was unreasonably withholding it from half the patients, depending entirely on their sex. Justice Kenji Jackson seemed to agree. She joined in, arguing that the child, whatever their sex, was pursuing the same medical purpose. “I don’t want to grow breasts,” Jackson said, drawing out the hypothetical. It’s “the same medical purpose. I’m trying to stop the development of breasts.”
SG Rice pushed back, saying that neither boy nor a girl could receive hormone treatment simply because the child didn’t want to develop breasts. A child “could not get [that treatment] if there was no medical purpose,” Rice explained. “There has to be a medical purpose for these drugs.”
Justice Jackson followed up Sotomayor’s question with a new hypothetical. If “a biological boy comes in and asks for a hormone treatment to deepen his voice in order to affirm his masculinity because it hasn’t come and he’d like to deepen his voice, can he get it?” Definitely not, Rice said. There’s no medical purpose to the treatment. Jackson professed confusion, “I don’t understand what you mean. The purpose is to bring on a deepening of their voice.” But, as Rice correctly pointed out, the fact that a patient desires their body to be different does not mean there’s an underlying medical problem in need of correction. “You cannot use testosterone for purely cosmetic reasons,” Rice explained. “It’s a Schedule III drug.” Again and again, the two justices pointed to a child’s desire or dissatisfaction as a sufficient medical purpose to prompt medical intervention, without reference to diagnosis or underlying pathology.
This distinction is key to both the sex-discrimination claim and the deeper questions of medicine. Can “developing breasts” or “a treble voice” be considered a medical problem—the same medical problem for natal boys and girls—simply because a child does not want them? If so, the child—not the doctor—supplies the diagnosis, and medicine has little to say about the origin of either the breasts or the disgust the child experiences when contemplating signs of womanhood.
On this view, the role of medicine is to harmonize the actually-existing body with the desired body. There is no consideration given to medicine’s role in the integration of the body as a functioning, ordered system. Because it is not working as desired, it is not working, period. There is no question about whether the wrong things are being asked of the body.
Advocating for the Body
There are other ways children’s bodies end up medicalized because we’ve asked the wrong things of the body. Little boys on the travel baseball team get Tommy John surgery in their teens, because their parents and their coaches asked for something that their bodies could not perform. A healthy body is rendered diseased by not being respected on its own terms. Young girls in competitive gymnastics or elite ballet are encouraged to cut calories until their menstrual cycles fade away. The development of breasts looks like something going wrong, not the body speaking naturally against a culture of sport that has little place for fertile women.
A doctor, practicing their art well, sometimes advocates for the patient by speaking up for his or her body. It begins with curiosity. What set this person and his or her body at odds? Is there a deficiency in the body that can be mended to restore its integrity? Or has the patient asked something of the body that it cannot give? Is it the patient’s expectation (and that of his or her parents) that must give way?
A doctor’s vocation is to intermediate between the speaking patient and the mute body, to investigate where the integrity of person has broken down such that the patient conceives of the body as an obstacle to the self. Discomfort is only the beginning of the conversation.
SG Rice was correct to say that no child’s medical chart simply says “does not want breasts.” If a natal boy and a natal girl both come in because they are troubled by growing breasts, the root causes are different, and it should not be surprising if the potential treatments are as well. A boy who comes in with gynecomastia might be reacting strongly to the swings of puberty, in which case the condition should abate on its own within six months to two years. He might have a tumor on his pituitary gland that requires urgent intervention. Or he might need to quit taking steroids he bought online and have a serious talk with his parents about disordered body image.
The doctor would be committing malpractice if she simply responded to the boy’s discomfort with his discordant body by prescribing hormones. This is no less true for girls. But throughout oral argument in Skirmetti, the liberal justices seemed to presume that it was common and reasonable for both “cis” and trans children to receive potent medical interventions to better resemble the child’s own personal gender ideal. This is patient autonomy run amok.
The Collaborative Art of Medicine
For me, these questions hit close to home. Indeed, I’ve been the child under discussion, depending on how broadly you define “gender non-conforming” and “acts of gender-affirming care.”
Like some portion of women, I remove some hair from my face. It’s an act that some gender activists say is no different from transition—it’s all expressive self-modification to better fit one’s gender image. That doesn’t match my experience, or that of many other women. Framing the response to bodily differences as merely self-expression also makes it harder for women to receive necessary medical care.
Having a little facial fuzz never felt like a threat to my identity as a woman, but rather to my professional path, given other people’s narrow images of what a woman should look like. A friendly boss once advised me to straighten my hair for similar reasons—not because having curly hair was gender non-conforming, but because it made me less pretty, according to a certain narrow definition of “pretty.” The advice was well meant, but I’ve ignored it.
Still, if I’d gone to a doctor as a teen and asked for help with my unwanted facial hair, it would have been a big mistake for my pediatrician to simply respond to my desire and refer me for laser treatment. Thankfully, my doctor was more attentive to the larger medical context. When she noticed my facial hair and heard my reports of infrequent periods, she sent me out for an ultrasound that confirmed her suspicions of polycystic ovary syndrome (PCOS). Although she did a good job uncovering the cause, she did a poor job addressing it. She offered no treatment at the time, besides a suggestion I could take the Pill to achieve the appearance of a “normal” cycle, whatever my abnormal cycle was doing. It would be at least ten more years before a doctor went beyond addressing appearance and helped me treat the root cause of my repeated miscarriages—a known risk for women with PCOS.
Medicine is a collaborative art. The doctor depends on the patient to give an account of his or her discomfort—only the patient can say “It hurts here” and “It hurts like this.” Doctors misserve their patients when they don’t have a lively interest in their patient’s lived experience. But they shortchange the patient if they allow the patient’s account of him or herself to stand unexamined and unleavened by the doctor’s expertise. The aim is to offer a treatment that springs from a deep understanding of the workings of a healthy, integrated body.
The Tennessee law doesn’t discriminate by sex. Rather, it offers differential treatment in response to different diagnoses. When a patient presents with discomfort, their experience is the opening salvo in a conversation. The doctor’s role is neither to dictate nor to defer. A doctor helps their patient understand themselves in relation to the range of healthy human bodies, not just a narrow ideal. The model of medicine that Sotomayor and Jackson proposed would shortchange children of any sex.
