Wyoming and 21 other states are urging the U.S. Supreme Court to leave decisions about regulating child sex changes to states rather than treating access to child sex changes as a person’s constitutional right.
The states filed an argument together Tuesday in the case of L.W. vs. Skrmetti, in which a transgender child challenged Tennessee’s law against child sex-change procedures and medications.
The United States federal government is now battling Tennessee on the child’s behalf in the U.S. Supreme Court.
Tennessee’s law outlaws the same procedures Wyoming also banned this year: puberty blockers, cross-sex hormones and sex-change surgeries for minors.
Wyoming’s Republican Gov. Mark Gordon announced the amicus brief, which he directed state Attorney General Bridget Hill to join, in a Tuesday statement.
“This case is about protecting the health and welfare of our citizens, especially our children,” Gordon said in the statement. “When I signed Chloe’s Law last year recognizing the need for our state to protect the most vulnerable, I did so knowing Wyoming would always defend our state’s inherent rights.
“Attorney General Hill is to be commended for once again protecting Wyoming’s interests.”
The states’ brief urges the high court to treat child-sex change restrictions as an issue of states’ rights.
The federal government, conversely, argues that access to such procedures should be protected under the 14th Amendment to the U.S. Constitution, as an individual right.
The debate harkens to the high court’s 1973 decision in Roe vs. Wade, when it ruled that abortion access is a federal constitutional right. That sparked a half-century of fierce and divisive debate, until the Supreme Court overruled Roe in 2022, with Dobbs vs. Jackson Women’s Health.
Dobbs returned the contentious medical issue to state legislatures, removing a federal right to abortion.
“If the Court holds otherwise and constitutionalizes this issue, then it will commit the cardinal sin of Roe all over again,” says the states’ argument. “Rather than expanding substantive due process (a constitutional right) to intrude on the States’ authority, this time it would expand equal protection. But the result would be the same.”
The high court shouldn’t codify yet another contentious federal health care right after setting aside another, the brief adds.
The other states filing with Wyoming are Kentucky, Arkansas, Indiana, Alaska, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Virginia and West Virginia.
Arkansas, Indiana and Kentucky list their counsel as chief crafters of the brief.
Rational Basis
Wyoming and the other states argue that states should, and traditionally do, have sovereignty to regulate debated health care procedures, especially in the name of protecting kids.
If the court agrees, Tennessee’s law (and by extension Wyoming’s) would be harder to strike down, as courts would review it under a lenient “rational basis” test rather than the most-stringent “strict scrutiny” test reserved for laws that threaten constitutional rights.
Even if the court decides that for this law, a tougher test called “intermediate scrutiny” should apply, then the ban should hold, the brief argues.
State laws can survive that test if they serve important governmental objective and are substantially related to the achievement of those objectives.
Conversely, the United States argues that Tennessee’s law is sexist and therefore violates a person’s right to equal protection, since it treats boys and girls differently. Tennessee’s law would allow a boy to get a testosterone prescription to conform with other males but would not allow a girl to do the same in an attempted sex change.
The states counter, saying deferring to biological differences in law doesn’t make a law sexist.
“States may draw sex-based distinctions without running afoul of those two constitutional guardrails,” the brief says. It adds a quote from an earlier case: “To fail to acknowledge even our most basic biological differences … risks making the guarantee of equal protection superficial, and so disserving it.”
A Representative Did The Opposite
While Wyoming’s governor and attorney general battle for Tennessee, one of the state’s legislative representatives argued against it, joining other Libertarian-leaning and LGBTQ sympathetic conservatives in calling Tennessee’s law unconstitutional.
Rep. Dan Zwonitzer, R-Cheyenne, filed a Sept. 3 brief with numerous other conservative officials, saying the issue isn’t of state’s rights, but of family rights.
Zwonitzer’s joint brief invokes what he called a libertarian-style argument: that empowering states to ban gender treatments for kids would authorize other states to go the other direction, and facilitate them.
“While the State may prefer to override certain choices parents make about the care of their children, the authority it claims would open Pandora’s box,” says the brief. “It takes little imagination to picture a different local government, state legislature, or even Congress enacting policies that run roughshod over the rights of parents in a way that would offend the preferences of Tennessee’s current government.”
States’ child-protection systems may go so far as to penalize parents who won’t give their children sex-change procedures, the brief notes.
The brief also launches a second-hand defense of the treatments themselves, however, pointing to medical professionals who believe its better to provide gender dysphoric children with the treatments than to deprive them.
“The district court found ‘that treatment for gender dysphoria lowers rates of depression, suicide, and additional mental health issues,’” says conservative officials’ brief.
Clair McFarland can be reached at clair@cowboystatedaily.com.
