It was clear from oral arguments that the ACLU was going to lose U.S. v. Skrmetti, a challenge to Tennessee’s ban on gender transition treatments for minors. But really, it was clear long before that.

The plaintiffs were facing six conservative justices who needed to be convinced that such treatments are so compelling - as the litany goes, “lifesaving, evidence-based and medically necessary” - that states could have no good reason to ban them.

By the time the case reached the Supreme Court, that argument was hard to make, because more and more questions were raised about evidence supporting these treatments. Discovery from a lawsuit against a similar ban in Alabama suggested political influence, publication bias and groupthink had impacted the work of WPATH, the World Professional Association for Transgender Health, which publishes the most influential guidelines on the topic. And because other medical associations appeared to be taking cues from WPATH, this undermined the argument that these interventions were backed by a strong medical consensus.

The result was a major setback for the trans rights movement - not just a loss in this case, but a precedent that will make it harder to win elsewhere.

Given how predictable this was, I have wondered why the ACLU brought a case where the risks were so great and the odds of winning so negligible.

One could argue that with states across the country passing bans on gender-affirming care for minors - 27 at last count - it had to try, even if it was likely to fail. But organizations such as the ACLU have always had to be strategic, picking fights they think they can win, or at least lose gracefully. Presumably, the ACLU can count to six - so why did it go for broke?

As I was asking myself this question, Nicholas Confessore of the New York Times was answering it with a deeply reported feature on the history of the Skrmetti case. He notes how the case departed from the incrementalist strategy that helped the LGBTQ+ movement win victories such as marriage equality. His article suggests that others in the movement were apprehensive about staking so much on a case they saw as “a tragic gamble built on flawed politics and uncertain science.”

Confessore writes: “Over the last decade, they told me, the movement was consumed by theories of sex and gender that most voters didn’t grasp or support, radicalizing its politics just as the culture wars reignited.”

Reading that, I thought back to my columns on Lia Thomas, a trans collegiate swimmer who won an NCAA championship. I started with no opinion about whether Thomas should be allowed to swim, but rather a mild interest in the question of whether trans female athletes retained athletic advantages after transitioning.

When I told people what I was working on, I was frequently met with unsolicited monologues about how unfair it was to let a biological male into women’s sports — not from conservatives, who saw it as merely one more example of progressive overreach, but from liberals, particularly women.

If you read media reports about Thomas, it was easy to get the idea that most reasonable people favored letting her swim, even if some noisy bigots opposed it. My own experience, as well as polls on the issue, suggested the truth was closer to the opposite.

Yet at the peak of the “Great Awokening,” that private truth was almost invisible in mainstream institutions, thanks to fierce progressive backlash that awaited anyone who suggested that maybe biological males shouldn’t be competing in women’s sports. At worst, well, Harvard professor Carole Hooven was forced out of the university after telling Fox News that there are two biological sexes, male and female.

Early on, I talked to a biology researcher who thanked me for tackling the topic before implying that I would soon be looking for another job. A trans rights activist I interviewed, by contrast, responded to my email with a link to his press kit and sat with me in the bleachers to watch Thomas swim. The asymmetry between one side afraid to speak, and the other loud and proud, was striking.

If people hadn’t been so terrified to say what they thought, questions would have been raised years ago, and Thomas might never have won that championship. WPATH might have faced harder questions about its work earlier on if it hadn’t been so easy to denounce its opponents as bigots. But the manufactured consensus was highly unstable, and when the silence was broken, it rapidly fell apart.

After the Supreme Court legalized it nationwide in 2015, same sex marriage kept getting more popular; by 2021, a majority of Republicans supported it. A long, open debate and an incremental approach to litigation had built broad cultural support for marriage equality. With trans rights, the pattern is the opposite: a series of rapid victories and an even more rapid decline in public support for issues such as gender-affirming care for minors and trans participation in sports.