The Least Sympathetic Plaintiffs in America Just Won

The Supreme Court on October 21 refused to let the administration enforce its ban on gender-affirming care for transgender inmates in federal prisons. The order was unsigned, gave no reasons, and was only a few lines long. Justices Thomas and Alito would have ruled differently. The policy stays blocked while the case goes on below.

I want to talk about who won, because they’re not usually the ones who don’t win anything.

Nobody’s Idea of a Sympathetic Client

The people on the winning side of this case are in federal prison. Whatever you imagine about them is probably not generous, and some of it is probably accurate. They are not the carefully chosen plaintiffs you put in front of a camera. No one is making a documentary about them.

That is exactly why the ruling matters. A right that protects only people you would invite to dinner isn’t a right. It is a courtesy, and courtesies get withdrawn. The test of whether a protection is real is whether it still holds when it attaches to someone you would rather not think about at all.

Why These Particular Cases Keep Going This Way

I have watched this administration win a great deal in court over the last two years. On prison medical care, it keeps losing, and not because judges have gone soft.

Prison medicine is one of the few corners of this fight where the law was settled long before any of us were an issue. The state takes away your ability to get your own care, so the state owes you care. Courts have been applying that rule for decades, to diabetics and cancer patients and people with heart conditions. When a policy ends an existing course of treatment by category — not patient by patient, after examination, but all at once, by order — judges have a well-worn framework and reach for it.

Most of the other fights ask courts to referee a question the country has not settled. This one asks them to apply a rule they already have.

What the Other Side Is Saying, Fairly

The government’s argument is not frivolous, and pretending otherwise helps nobody. It says prison officials, not federal judges, should decide what medical care a prison provides, that running a prison involves judgments about safety and resources a court is poorly placed to second-guess, and that an injunction against a nationwide policy is an enormous thing for one district judge to do.

And the denial settles nothing on the merits. The emergency docket decides who lives under which rule while a case proceeds, not who is ultimately right. The administration may well win this case in the end.

What It Was Actually About

The policy would have ended hormone therapy for people already receiving it, along with the social accommodations that go with it. Not denied it to new patients. It would have ended it mid-course for people already on it.

Anyone who has been on hormones knows what stopping abruptly does, and it is not a matter of comfort or preference. It is a medical event. You cannot do that to a person as an administrative gesture and call it neutral.

The Part I Keep Coming Back To

Sixty-nine years of this has taught me that the arguments made in public and the arguments that decide things are rarely the same arguments. In public, it’s about ideology and who deserves what. In the filings, it is about the Eighth Amendment, and standing, and whether a district judge exceeded his authority.

The quiet, technical version is the one that holds. Four lines, no reasoning, and the policy doesn’t take effect. People in most of the country would rather not think about keeping their medicine this week, because a rule written for everybody still applied to them.

That is what a right looks like when it is working.