The U.S. Supreme Court is considering a monumental case surrounding whether state bans on sex-change treatments for kids are inherently sexist.
The case itself, LW vs. Skrmetti, focuses on Tennessee’s law SB1, which, just like Wyoming’s law on child sex-change treatments, bans kids from accessing puberty blockers, cross-sex hormones and surgeries for the purpose of transitioning to a different gender.
Wyoming has argued in favor of Tennessee’s law in a brief filed in this case.
The high court heard oral argument in the case Wednesday.
The United States and the American Civil Liberties Union (ACLU) both argued on behalf of transgender kids and their parents that Tennessee’s ban draws a sex-based distinction that should make it harder for the state to defend as constitutional under the 14th Amendment’s mandate of equal protection.
Tennessee Solicitor General Matthew Rice, conversely, told the high court that rather than discriminating between boys and girls, the law bans certain medical procedures, for very real medical reasons.
If the high court rules that the law is subject to a higher standard of review than the light-handed “rational basis” review the Sixth Circuit Court of Appeals ascribed to it, then the law could be deemed unconstitutional and be blocked.
Wyoming’s matching law and others across the nation would likely be deemed unconstitutional as well under such a determination.
“The whole thing is imbued with sex,” Justice Sonia Sotomayor said during the oral argument, when addressing Rice. “You might have reasons for thinking it’s an appropriate regulation, and those reasons should be tested and respect given to them — but it’s a dodge to say this is not based on sex.”
Rice disagreed, saying U.S. Solicitor General Elizabeth Prelogar and ACLU attorney Chase Strangio can only claim the law is sexist by conflating medical procedures that are in reality very different: preventing precocious puberty in a girl has different effects on the body than delaying normal puberty in a boy who identifies as a girl.
Health care regulation is generally left to the states, and this is a hotly disputed, ever-evolving arena of medical science, Rice noted.
When Sotomayor worried aloud that Rice’s logic could lead to a ban on sex-change treatments for adults, Rice said that too is best left to the legislatures.
“Democracy is the best check on potentially misguided laws,” said Rice.
Sotomayor cast that attitude as tyranny of the majority.
“When you’re 1% of the population or less, it’s very hard to see how the democratic process is going to protect you,” she said. “Blacks were a much larger percentage of the population and it didn’t protect them. It didn’t protect women for whole centuries.”
But This Is Fluid
The justices weighed not only the question of whether the law is sexist, but whether it would have been a more efficient argument for the pro-sex-change litigators in this case to argue that the law discriminates against transgender people, rather than against boys and girls on the basis of their sex.
Justice Elena Kagan posed the question, and Justice Samuel Alito expanded on it. He hinted that what the ACLU and federal government are actually asking the court to do is to make a “quasi-suspect classification,” or a special protection, for transgender people.
And Alito challenged that as potentially nonsensical, since transgender people don’t always identify the same, and gender fluid people may change given the day of the week.
“Is transgender status immutable?” Alito asked Strangio.
Strangio said the focus shouldn’t be on whether a female consistently identifies as a male, but on how transgender people — not necessarily binary — have an identity that is different from their birth sex.
Alito and Strangio had another standoff, over whether giving kids these treatments prevents suicides. The justice drew the attorney's attention to recent transgender study the Cass report, which concluded that it doesn't.
Strangio conceded that, but said the treatments prevent "suicidality" or suicidal ideation and underlying conditions.
Watch Out For Congress
Justice Brett Kavanaugh asked, and Rice confirmed, that Tennessee isn’t arguing that states wanting to legalize child sex-changes should be prohibited from doing so.
Tennessee’s argument is merely that its law is not sexist, and it should be able to defend it under a friendly standard in court.
Prelogar rebutted, saying to watch out for reasoning like that because any leniency the high court gives to Tennessee’s law may apply very shortly to a nationwide ban made by Congress.
Indeed, President-elect Donald Trump has vowed to urge Congress for a ban on child sex-change surgeries. It’s unclear what the president would like to do with puberty blockers and cross-sex hormone treatments for gender dysphoric kids.
Loving Case
Justice Ketanji Brown-Jackson repeatedly pulled the argument back to Loving v. Virginia, a 1967 landmark civil rights decision finding that laws banning interracial marriage violate the Equal Protection and Due Process clauses of the 14th Amendment.
She said if Virginia had a law just banning all races from marrying people from other races, the law would still be racist, despite being so even-handed.
Brown-Jackson indicated Tennessee’s law, which equally blocks boys and girls from cross-sex treatments, has the same flaw.
She may have been referencing an earlier question by Kavanaugh about whether Tennessee’s law could really be sexist if applied neutrally to both boys and girls.
Rice said her argument is not on point. A girl taking testosterone may experience a thinning of her uterus lining, infertility and increased risk of heart attack, whereas a boy taking testosterone will not experience those effects. That makes Tennessee’s law about medical treatments and regulation, not sex, he reiterated.
Clair McFarland can be reached at clair@cowboystatedaily.com.
