‘Heightened Scrutiny’ Scapegoats The New York Times For the ACLU's Loss In Skrmetti
The documentary is the centerpiece of ACLU litigator Chase Strangio's campaign to blame the Times for the Supreme Court's ruling upholding Tennessee's ban of pediatric gender-transition treatment.
ACLU litigator Chase Strangio made history in December by becoming the first openly transgender attorney to argue a case before the Supreme Court. In U.S. v. Skrmetti, Mr. Strangio argued on behalf of the young plaintiffs that Tennessee’s ban on minors receiving puberty blockers and cross-sex hormones to treat gender dysphoria violated the Equal Protection Clause of the Constitution.
The high court’s conservative supermajority wasn’t sold. The 6-3 decision in the Skrmetti case, issued last month, dealt the ACLU a bruising defeat. It left transgender rights advocates, who have placed promoting and defending minors’ access to gender-transition interventions at the forefront of their crumbling movement, at a demoralizing turning point.
In turn, Mr. Strangio has shifted course, presenting a countervailing argument to the court of public opinion:
He has blamed the Skrmetti loss on The New York Times.
Mr. Strangio blamed the Times at a speaking engagement in Provincetown, Mass. He has blamed the Times in popular queer podcasts, pointing to what he said is the paper’s “role in the current, very successful anti-trans panic.” And even before Skrmetti was decided, Mr. Strangio laid the groundwork for this name-and-shame campaign by heaping blame on the Times in interviews for a buzzy new documentary, Heightened Scrutiny.
The documentary, directed and produced by Sam Feder, debuted at the storied Sundance Film Festival in January and in recent weeks has made the rounds at screenings in select cities. Part legal drama, part character study, part media critique, the film charts Mr. Strangio’s fraught and frenetic path to the nation’s highest court. It presents the ACLU litigator as the reluctant, scruffy and, above all, scrappy hero of a civil-rights movement that, due to forces far beyond his control, is doomed, at least in the short term, to fail.
“The law is a system of violence,” Mr. Strangio says in Heightened Scrutiny. “The role of the lawyer, in my view, is to minimize that violence through advocacy.”
“The law is a system of violence.” —Chase Strangio
This scapegoating and, indeed, scrutinizing of The New York Times—The Atlantic takes a beating as well—is the pulse that keeps Heightened Scrutiny beating throughout its brisk 89-minute run time. This is not a subtle argument as presented by the 42-year-old Mr. Strangio and a chorus of trans-advocate talking heads. The documentary does not engage in a careful, incisive deconstruction of the Times’ reporting to expose the Gray Lady’s supposed invidious intent where transgender children are concerned.
Instead, the film paints in broad strokes, accusing the Times, for example, of favoring framing “trans people or the trans movement as a threat to others.” In what way? We never do learn. Mr. Strangio and the cast of commentators rely on an argumentum ad nauseam strategy: If they simply repeat a sweeping claim about the Times’ culpability enough times, what’s known as the illusory truth effect will take over and the public will simply accept the film’s underlying thesis as fact.
This is an ironic rhetorical strategy to employ when criticizing the work of reporters, who are themselves charged with providing the public with cogent, incisive and, above all, factual information. But Heightened Scrutiny does not hit the intellectual high road. The film is there to cut and run.
Unacknowledged is Mr. Strangio’s clear motivation to minimize his own role in the Department of Justice’s loss before the highest court in the land in Skrmetti. (While the ACLU shepherded the case through the lower courts, the Supreme Court accepted only the Biden DoJ’s complaint in the case, not the ACLU’s. Mr. Strangio was nevertheless granted permission to present oral argument.) And, in the aftermath of the Supreme Court’s decision, it is quite evidently in Mr. Strangio’s best interest to deflect criticism coming from none other than the Times itself.
The day after Skrmetti was decided, The New York Times Magazine published a damning investigation suggesting that Mr. Strangio’s own tactics and rhetoric, in particular his radical and inflexible demands for a society-wide reordering of the conception of sex and gender alike, played a key role in inspiring the backlash that has engulfed the entire transgender project. At the Provincetown talk, held two days after the magazine piece was published, Mr. Strangio never acknowledged the article and its scathing critique of his career; instead, he trained his ire back on the paper, lambasting its transgender coverage as “insidious.”
The Film Flips the Script
The best Heightened Scrutiny can do in its own effort to flip the script on the Times is to back up its case with circumstantial evidence.
“State legislatures cite The New York Times; state attorneys generals cite The New York Times; and judges cite The New York Times,” Mr. Strangio says in the film, referring to bans of pediatric gender medicine and the subsequent lawsuits filed against them by the ACLU and others. “There is a direct link to how our care is discussed in the media, how the laws are passed, how they’re defended in court, and how they’re upheld in court.”
This facile reasoning presumes that the movement to ban pediatric gender medicine has been so dependent on the Times’ reporting that conservatives never would have thought to instigate a mass, state-by-state campaign to ban these treatments, and that they could not have successfully defended these laws in court absent the Times serving as a fertile resource for their political rationalizations and legal citations.
As if Fox News–focused Republicans make it a habit of waiting for permission from the Times before throwing culture-war carrion to their ravenous base. And as if conservatives’ legal filings and opinions in the cases leading up to Skrmetti hinged decisively on Times citations. Trans advocates have made much hay of the fact that, in his concurring opinion in Skrmetti, the ultra-conservative Justice Clarence Thomas cited the paper’s reporting seven times. But in the case’s majority decision, Chief Justice John Roberts made no such reference.
Heightened Scrutiny presumes the audience will simply take for granted that Mr. Strangio and the others in the film who bash the Times and The Atlantic do so substantively. We are to take on faith that the many fine reporters who have published work on this subject for these publications—and who have been brutally and shamefully attacked and intimidated as a consequence—have been part of a cabal determined to undermine a sterling and faultless field of medicine by pulling the wool over the public’s eyes with shoddy, nefarious, and fact-challenged reporting.
Mr. Strangio’s arguments presume that the Times’ marquee reporting on the topic, by journalists such as Emily Bazelon, Pulitzer Prize–winner Megan Twohey and Azeen Ghorayshi, and Jesse Singal’s 2018 Atlantic cover story were not, in fact, nuanced, robustly reported reflections of contemporary reality as as well as vital explorations of a subject that is personally salient to an increasing number of Americans.
Trans Issues Strike Home
Since the early 2010s, transgender identification among adolescents has suddenly grown from a rarity to a rate as high as 3.3 percent. Meanwhile, the World Professional Association for Transgender Health, or WPATH, has increasingly banged the drum that providing minors with gender dysphoria blockers and hormones is “medically necessary.” Last year, WPATH asserted that such treatment is the preferable route for the majority of youth who identify as transgender.
Consequently, for many parents, these issues quite literally strike home. Americans with children experiencing gender dysphoria or who otherwise have a cross-sex identity need help understanding this relatively new and complex medical field and how it might impact the rest of their children’s lives.
And yet, as Times reporters and Mr. Singal have reported in exacting detail, researchers have produced little long-term evidence about the impacts of pediatric gender-transition treatment. And while the treatment protocol was first established, by Dutch researchers, nearly four decades ago, few American prescribing physicians have lengthy experience with providing these medications to minors. When the first U.S. pediatric gender clinic opened in 2007, barely more than 100 gender dysphoric children had been put on blockers worldwide. Gender clinics didn’t truly take off in the United States until about a decade ago.
A raft of systematic literature reviews—the gold standard of scientific evidence—published over the past five years have made painfully clear that the research supporting pediatric gender medicine is weak and inconclusive. These findings have prompted the health authorities in a slew of European nations to reverse course and sharply restrict minors’ access to gender-transition treatment.
None of these concerns, caveats or developments about the science, all of which played an important role in Skrmetti, are addressed in the documentary.
Heightened Scrutiny of One Journalist In Particular
As for attacks on specific Times or Atlantic reporters, Heightened Scrutiny provides rapid-fire images of many of their articles and bylines. But only a single journalist who has worked on this beat in recent years receives an actual name check in the film: former Times opinion columnist (now a writer at large at The Wall Street Journal) and cultural lightening rod Pamela Paul.
Ms. Paul’s work is subjected to the documentary’s only explicit fact check of journalistic output, which concerns the sprawling editorial on detransitioners that she published in the Times in February 2024. In particular, the film zeroes in on a paragraph in which Ms. Paul discussed the controversial, theoretical concept of “rapid-onset gender dysphoria.” ROGD was coined by physician-researcher Dr. Lisa Littman in a 2018 paper that, like Ms. Paul’s writing, has been savaged by trans advocates.
Ms. Paul wrote in the Times:
Most of [psychologist Laura Edwards-Leeper’s] patients now, she said, have no history of childhood gender dysphoria. Others refer to this phenomenon, with some controversy, as rapid onset gender dysphoria, in which adolescents, particularly tween and teenage girls, express gender dysphoria despite never having done so when they were younger. Frequently, they have mental health issues unrelated to gender. While professional associations say there is a lack of quality research on rapid onset gender dysphoria, several researchers have documented the phenomenon, and many health care providers have seen evidence of it in their practices.
Heightened Scrutiny cites journalist Evan Urquhart, who recently completed a prestigious science journalism fellowship at M.I.T. and runs a blog devoted to transgender issues. Mr. Urquhart notes that a particular fragment of Ms. Paul’s editorial— “several researchers have documented the phenomenon” —suggests, he says, that at least three researchers have documented evidence of ROGD. But, Mr. Urquhart notes, the three hyperlinks Ms. Paul provided in the text only point to two such researchers: Dr. Littman and Michael Bailey, a professor of psychology at Northwestern University.
Sabrina Imbler, a former fellow at the Times Opinion section, complements Mr. Urquhart’s analysis by reporting that Times opinion essays are subjected to rigorous fact checking. Accordingly, Imbler expresses incredulity that Ms. Paul’s “several researchers” claim could have passed muster.
Activist Erin Reed, who runs a popular Substack about trans issues, further claims in the documentary that Ms. Paul’s erroneous assertion is “exactly what we’re talking about whenever we say that the centrist, both-sides journalistic media is laundering disinformation.” (Ms. Reed has herself been a font of false claims about pediatric gender medicine.)
Except that the journalist in this equation who did not properly fact check their claim is Mr. Urquhart, not Ms. Paul. I asked Drs. Bailey and Littman for any examples of published papers by other researchers that documented the fundamental criteria of ROGD: minors first diagnosed with gender dysphoria during adolescence who had no history of expressing a cross-sex identification in early childhood, including those with a high rate of other psychiatric conditions.
The two researchers provided me with plenty of citations, including the following that make either explicit reference to rapid-onset gender dysphoria or describe patients who fit the basic ROGD criteria. Between them, the papers have 16 authors—more than enough to count as “several”:
Dr. Bailey told me in an email that many other publications prior to these papers documented an increase, starting in about 2010, in patients fitting the ROGD criteria. “None of them looked for signs of social contagion, to my knowledge,” he said, “which would be the only major aspect of ROGD omitted. These changes called for an explanation, and ROGD is the best explanation.”
Controversial Gender Researchers Launch Long-Term Study of Gender Dysphoric Youth and Their Parents
Evading science, or erroneously citing it
In her opinion essay, Ms. Paul otherwise illuminated the groundswell of concern about pediatric gender medicine that has recently emerged on the left. Heightened Scrutiny behaves as if this wariness on liberals’ part either does not exist, or if if does (recent polling has found that it most certainly does), it was manufactured out of thin air by unscrupulous Times journalists such as Ms. Paul.
Heightened Scrutiny is charged with documenting and deconstructing a legal saga, not necessarily a scientific one, and cannot be expected to serve as a comprehensive compendium on every facet of this byzantine debate in only an hour and a half. Nevertheless, beneath that legal shell lies an important scientific core—a fundamental aspect of pediatric gender medicine that goes almost entirely ignored by the documentary. Unless you count the commentators who hold advanced degrees and are experts in media, there are no scientists in the film. Nor are there any doctors.
What’s more, one of the only explicit references to scientific research in Heightened Scrutiny makes two erroneous claims: that we know the rate of detransitioning for those who medically transitioned as minors; and that the rate is less than 1 percent. In fact, due to a woeful lack of long-term follow-up of such youths, the detransitioning rate is unknown. Kinnon Ross MacKinnon, an assistant professor of social work at York University in Toronto, who is the leading researcher about detransitioning, recently told the Times that overall, the detransitioning rate is probably about 5 percent to 10 percent.
Additionally, Heightened Scrutiny repeatedly asserts that gender-transition treatment saves lives—a claim not supported by research. Mr. Strangio himself acknowledged this fact during a notable exchange with Justice Samuel Alito in oral arguments for Skrmetti. And yet the documentary excludes that crucial quote. It only includes audio of the portion of that exchange when Mr. Strangio insisted that research shows this treatment lowers “the risk of depression, anxiety and suicidality, which are all indicators of potential suicide.”
But this claim has several flaws. For starters, no research study has succeeded in establishing a causal relationship between such medical interventions and mental-health outcomes among minors; the research can only show associations. More broadly, the systematic reviews of pediatric gender medicine have found that the studies supporting the claims of mental health benefits are too weak and unreliable to hang anyone’s hat upon. Mr. Singal, for one, has written scathing critiques of two of the most widely cited recent studies to have claimed these treatments are associated with improved mental health: Tordoff et al, 2022 and Chen et al, 2023.
The Dean of Columbia’s J School applies his considerable imprimatur
In a memorable moment in Heightened Scrutiny, Jelani Cobb, the dean of Columbia’s Journalism School and a staff writer at The New Yorker, chokes up when he conveys how personally he takes the subject of transgender civil rights. He recalls having been bullied as a young person.
“I don’t like bullies,” he says.
The apparent implication, given the broader context of the film, is that The New York Times itself is one of the primary bullies at play in the toxic dynamic surrounding pediatric gender medicine.
This is a stunning claim, even if made only implicitly, to come from the man who leads the nation’s most prestigious journalism school and is charged with shaping the next generation of reporters.
At the screening of Heightened Scrutiny that I attended in New York City last week, Dr. Cobb appeared afterward for a talkback with Gina Chua, who is an executive editor at Semafor, a consulting producer of the documentary, and who appears in the film.
Dr. Cobb did most of the talking. He largely spoke in sweeping generalities and analogies rather than addressing the specifics of the media’s coverage of pediatric gender medicine.
A former professor of history and director of the Institute for African American Studies at the University of Connecticut, Dr. Cobb said he views the subject of transgender rights through a civil-rights-history lens.
While he never mentioned the Times by name, Dr. Cobb said that journalism had led to “regressive changes in society” in the struggle for trans civil rights. News organizations, he said, are “vectors of values” of the newsroom leaders in particular. He then drew a historical parallel that at least appeared to suggest that these newsroom values include transphobia: He recalled that certain newspaper publishers during the civil rights era were “avowed segregationists.”
Dr. Cobb further suggested that newsrooms lack viewpoint diversity among staffers, given they draw their talent from a pool from cultural elites who share similar backgrounds. (He didn’t mention that he runs the nation’s most elite journalistic finishing school.) This, he said, leads editors to remain blind both to the important stories that they haven’t assigned, such as coverage of AIDS in New York in the early 1980s, and to the bias that governs what they do cover and how they cover those subjects.
“I always tell my students,” Dr. Cobb said, “always be more worried about what you don’t know than you are satisfied by what you do.”
Dr. Cobb further criticized what is known as “both sidesism,” in which journalists fumble in their effort to adhere to a supposed maxim to provide balance on a topic by giving air time to an extreme and invalid perspective—a habit Dr. Cobb blamed on newsrooms’ overcorrection in the face of accusations of liberal bias.
“We don’t generally in references to geography make sure that we have brought in the voices of the flat-earth community,” he said.
Questioned about how journalists can fairly cover a subject about which they are particularly passionate, Dr. Cobb said, “I’m a big believer in methodology. And the more passionate that you feel about something, the more methodologically rigorous you have to be, especially if this is the thing that you care about. You don’t want any blind spots.”
“You don’t want any blind spots.” —Jelani Cobb, dean of Columbia’s Journalism School
I, for one, became passionate about pediatric gender medicine after I saw how viciously journalists like Mr. Singal and Ms. Bazelon were attacked for work that I believed was, in fact, methodologically rigorous. It took me a year of constantly reading papers, books and articles—I have a stack of materials I’ve read that is now over a foot high—to establish a solid enough foundation to begin reporting on this subject. So I wanted to know: What sort of methodological rigor had Dr. Cobb himself observed before he lent his considerable credibility to this documentary? How had he checked his own blind spots?
After the talkback, I approached Dr. Cobb in the lobby of the theater. I asked him about how he might have studied the science behind this field to reach a conclusion that prescribing puberty blockers and cross-sex hormones to any particular minor with gender dysphoria represented a fair balance of risks vs. benefits.
I wish I could tell you what he said in reply, but Dr. Cobb refused to speak to me on the record.
I further wish that Dr. Cobb would spend more time and energy researching this topic if he is going to keep applying his imprimatur by promoting Heightened Scrutiny. He has, after all, only ever written a single article about transgender issues: a short piece for The New Yorker about North Carolina’s bathroom ban—in 2016. And yet from his distant perch he sits in judgment of journalists who have spent years in the trenches covering this subject.
Activism, advocacy and hagiography
During the talkback, Dr. Cobb also addressed the question of how journalists differentiate themselves from activists or advocates for a particular cause.
“The idea that we’re not invested in any outcome is untrue,” Dr. Cobb said of reporters. “What differentiates a journalist from an activist is that we give people information with the full expectation and faith that, using their own rationality, they can decide what should be done.”
Indeed. Is this not precisely what the Times has done in its reporting of pediatric gender medicine and transgender rights?
Heightened Scrutiny, for or all the criticism it heaps onto journalism in general and the Times in particular, makes no attempt of its own to provide a balanced perspective on the legal battle over pediatric gender medicine. It is not in the business of providing viewers with comprehensive information from which to draw their own insights and conclusions.
In the film, Ari Drennen, the LGBTQ program director at the embattled left-wing media-watchdog nonprofit Media Matters, says, “So much of the media is driven by clicks, driven by impressions, driven by telling the story that the most people want to see and share.”
This documentary has followed that very playbook. It tells a certain group of people what they want to hear: that it was The New York Times’ fault the Justice Department lost the Skrmetti case.
The film, consequently, is barely a work of journalism.
It is, at least in part, a hagiography of Mr. Strangio, meant to lionize him in the face of defeat.
Most fundamentally, the film is propaganda.
I am an independent journalist, specializing in science and health care coverage. I contribute to The New York Times, The Guardian, NBC News and The New York Sun. I have also written for theWashington Post, The Atlantic and The Nation. Follow me on Twitter: @benryanwriter and Bluesky: @benryanwriter.bsky.social. Visit my website: benryan.net
If Strangio ever bothered to read the comments on the NYT pieces, it would be obvious that rather than people learning about this topic from the NYT, the readers are relieved that the NYT reporting is finally somewhat catching up to what the liberal and progressive readers of the NYT are seeing with their own eyes in their communities. I feel like Strangio thinks this is 2015 where most people have very little real world exposure to people who transitioned and will just believe the narratives they are told. How much longer to they think their narratives can hold given GenXers with teens, gen Z and gen alpha have seen plenty of young people come in and out of trans identities, start and stop treatments, physically or mentally deteriorate after starting, etc. Even the millennials who knew people who started transition 5-8 years ago are probably starting to see more of their peers shift identities and stop hormones (I think this is what happened in McKinnon’s circles that piqued curiosity). I applaud people like McKinnon for abandoning fidelity to old narratives and trying to investigate what is going on and the various ways people are processing and thinking about their experiences of having transitioned for some period of their life.
Is it typical for the losing attorneys in a SCOTUS case to go on a publicity campaign to blame others for their loss? Especially to hyper-focus on one specific news outlet and blame it? It feels like one of those corporate campaigns where a whole team of PR people are brought in to try to save a CEO's or celebrity's image after a major screw-up. It also makes everything about Strangio and the Skrmetti case feel like it wasn't people with good (if misguided) intentions doing what they thought was right to support vulnerable children but a publicity campaign and ego trip where the kids were just accessories for Strangio's and the ACLU's own hero story and fame.