Tennesee’s regulation of “transgender” medical treatments for children is about protecting them from immature decisions, not about sexism against boys or girls, the state’s top lawyer told the Supreme Court Wednesday.
“The only way they get to a sex-based [focus] is by equating fundamentally different treatments [for boys and girls],” Tennessee Solicitor General J. Matthew Rice told the nine justices on December 4.
The regulated puberty-blocking drugs “have different effects on the [male or female] body, and once you … recognize medical reality, then there is no argument that our law differentiates between treatments for males and females,” Rice said.
Rice’s medical reality vs. sexism argument wins the day if it persuades either or both of the two main swing voters on the court, Justice Brett Kavanaugh or Justice Neil Gorsuch.
Kavanaugh repeatedly suggests that elected legislators be allowed to set rules for the uncertain, novel, and high-stakes transgender treatments. “The Constitution’s neutral on the question,” said Kavanaugh. “Why isn’t it best to leave it to the democratic process?”
Gorsuch remained silent, giving no hints of his views.
In 2020, Gorsuch wrote a landmark decision granting legal protection to employees who appear as members of the opposite sex in their workplace. The Bostock v. Clayton County decision was based on the claim that a person’s choice of male or female appearance is a civil right that trumps employers’ different expectations for the appearance of their male and female employees.
Rice’s argument is critical because the nine judges are under intense pressure to reject any transgender-related laws that treat the two sexes differently.
The pressure comes from the court’s long history of barring sexism in the law, education, or the workplace, and also from progressive judges who are eager to create legal rights for people who claim to be transgender.
The transgender ideology argues that governments must enforce individuals’ demand to be treated as members of the opposite sex once they claim transgender status. So the ideology says courts and police should punish citizens, employers, and coworkers who refuse to use opposite-sex pronouns when dealing with a person who claims the scientifically unverifiable status of transgender.
Progressive Justice Elana Kagan criticized the Tennessee law for saying that it is improperly intended to discriminate against transgenderism by urging kids to “appreciate their sex and not become disdainful of their sex.”
The law promotes the sexist claim that boys and girls must “look and live like boys and girls,” she said, adding:
I think that adds on an additional layer of sex classification here, in so far as it shows that part of what the state was attempting to do is ensure that adolescents conform their bodies to the state’s physical expectations of how males and females should appear. It’s not at all surprising to think of that as a [unconstitutional] sex classification.
“It’s a dodge to say that this is not based on sex,” she added.
Rice responded:
That [appreciate their sex language] is simply the recognition that given the high desistance rate among minors and given the tragic regret of de-transitioners [those who quit transgender treatments], that there is an interest in making sure that minors have enough time to appreciate [the consequences] before undergoing life-altering changes. So I think that that has to be viewed in the context of the legislative findings with which both emphasize the de-transitioners and the high rate of desistance.
With respect to becoming “[not] disdainful of their sex.” The [pro-transgender] challengers have never explained why it would be problematic [for legislators] to prevent [transgender medical] interventions that could affirmatively cause minors to become disdainful of their sex and thus [be subject to] psychiatric conditions. And in fact, there are multiple studies … where minors’ actual mental health and suicidality got worse after taking these interventions.
This [treatment] is causing affirmative harm to minors who are undergoing the interventions, and that’s why the [legislators] were saying we don’t want these interventions that will cause minors to become disdainful of their sex.
Similarly, Justice Ketanji Brown Jackson repeatedly portrayed the Tennesee laws as a rerun of racial discrimination by Virginia and other states:
[Virginia argued] the scientific evidence [about interracial marriage] is substantially in doubt, and consequently, the court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages. And so for me … we’re just [saying] “Well, there are lots of good reasons for this policy, and who are we as the court to say otherwise?” I’m worried that we’re undermining the foundations of some of our bedrock equal protection [anti-discrmination] cases.
President Joe Biden’s lawyers have joined with transgender groups to oppose the Tennesee law. His Solicitor General, Elizabeth Prelogar, repeatedly touted the same claim that safety curbs on transgender treatments are unconstitutional sexism:
“I share your concerns,” Prelogar told Brown:
If Tennessee can have an end-run around heightened [judicial] scrutiny by asserting at the outset that biology justifies the sex-based differential in the law, that would undermine decades of this court’s precedent [about sexual discrimination].
Earlier, Prelogar argued that the Tennesee law treats boys and girls differently:
[The Tennesse law] regulates by drawing sex-based lines, and declares that those lines are designed to encourage minors to appreciate their sex. The law restricts medical care only when provided to induce physical effects inconsistent with birth sex. Someone assigned female at birth can’t receive medication to live as a male, but someone assigned male can.
Preologar’s use of novel terms — “birth sex” and “assigned female at birth” — reflect the progressive hope that transgenderism allows people to escape the restrictions set by their female-or-male biologies.
That hope requires the judges to go beyond enforcing the equality of the two sexes.
So progressive judges now want to help pro-transgender politicians gradually blur the cultural and legal dominance of the two equal, different, and complementary male or female sexes.
However, the transgender goal collides with the progressive judges’ long-standing effort to level the status of the two distinct male and female sexes. For example, the court has long insisted that equality means women should have their own public bathrooms for convenience, safety, and sexual privacy. In contrast, transgenderism now insists that men can freely intrude upon women’s bathrooms by declaring themselves to be transgender women.
Several of the judges hinted at the legal conflicts between the rival goals of sexual equality and transgenderism.
“Is transgender status immutable?” Justice Samuel Alito asked the second pro-transgender lawyer, Chase Strangio.
The question is important because justice cannot easily grant the progressives’ goal of special protections — dubbed “quasi-suspect classification” — to a class of individuals who can change their transgender status from day to day, or change their definition of transgender from hour to hour.
Strangio insisted that the ever-changing, undefined, and self-declared “transgender” status deserves special legal protections from popular laws set by elected politicians.
“Transgender people are characterized by having a gender identity that differs from their birth sex,” he said:
That is distinguishing and discrete … I think that the record shows that the discordance between a person’s birth sex and gender identity has a strong biological basis and would satisfy an immutability test [needed to win the legal protections of “quasi-suspect classification”]. And I also think under this Court’s precedents for determining whether something is suspect or quasi-suspect classification, a distinguishing characteristic is sufficient.
Alito then asked, “Does transgender status apply to individuals who are gender fluid?”
“It may include people who have different understandings of their gender identity, but I think it is still the distinguishing characteristic of a birth sex and a gender identity that are incongruent,” Strangio claimed.
Judges also asked Strangio and Prelogar if the court’s award of “quasi-suspect classification” to transgenderism would allow males to play in female sports. Both Strangio and Prelogar dodged the question.
The court hearing ended midday, leaving the judges to draft, debate, and decide by issue, likely by June.
Pro-transgender activists were pessimistic about the likely outcome.
The case is United States v. Skrmetti, No. 23-477 in the Supreme Court of the United States.
