The Supreme Court Should Rule That Reality Exists:
In United States v. Skrmetti, which was argued Wednesday, the Supreme Court’s justices are asked to decide whether the 14th Amendment’s equal protection clause is violated by a Tennessee law that restricts the use of puberty blockers and hormones by minors.
To begin with the obvious, the 14th Amendment says nothing of the sort. The people who wrote and ratified the amendment at the noontide of the Victorian age would have been baffled by the claim that they were creating a constitutional right for children who are confused about their sex to take drugs that make irreversible changes to their bodies. If the Court takes seriously the original public meaning of the equal protection clause, this case is no contest.
Unlike Title VII of the Civil Rights Act of 1964, which was at issue in Bostock, the equal protection clause says nothing about sex discrimination. It has long been read to bar irrational distinctions on the basis of sex, for reasons similar to why it bars racial classifications. But while legal distinctions on the basis of race are irrational in all but a few very narrowly circumscribed situations, the courts have long recognized the commonsense reality that was obvious in 1868 and remains obvious to most Americans today: Sex differences are real. They have important consequences and never more so than in matters of biology, medicine, and reproduction. Humanity could not exist without those differences.
Legislatures draw distinctions between people and situations all the time. The Court usually asks whether these distinctions have a rational basis, a test most forgiving to lawmakers. The Court applies “strict scrutiny,” however, when a racial distinction is drawn, because of the presumptive irrationality of those classifications. In order to evaluate sex classifications, the Court invented “intermediate scrutiny,” a compromise between strict scrutiny and the rational-basis test. The test has no basis in the Constitution, but it aims to accommodate in practice the reality of sex differences, while banning sex discriminations that are not based on such differences.
The specific question before the Court in Skrmetti is whether intermediate scrutiny applies to a distinction between two treatments that use the same medications. The Biden administration and the individual challengers to the Tennessee law argue that it is sex discrimination to restrict gender-transition treatments but not identically restrict every other treatment using the same hormones or puberty blockers. The level-of-scrutiny question is front and center because lawyers naturally wish to have the standard for reviewing a law decided before applying that standard. But here, we think this asks the question backwards.
The equal-protection question always comes down to whether a distinction is rational. Strict scrutiny exists because racial distinctions are presumed to be irrational — because race is an artificial category that has often been abused. By contrast, to say that the intermediate-scrutiny test exists because sex differences are real is to decide this case, regardless of the label the Court applies. If boys becoming men is different from boys trying to become women, then the Tennessee law draws a rational distinction. If giving testosterone to boys has a different effect on their bodies than testosterone has on the bodies of girls, then the Tennessee law draws a rational distinction. The rest is semantics.
The confusion of semantics with reality was the error of Bostock v. Clayton County (2020), which collapsed reality into syllogism: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Justice Ketanji Brown Jackson tried the same maneuver here, arguing that sex discrimination happens just in asking whether the patient receiving testosterone is a boy or a girl, so therefore intermediate scrutiny must apply. Never mind that what it really means is that these are fundamentally different medical treatments, with different purposes, different intended effects, and different risks. --->READ MORE HERE
US supreme court conservatives appear ready to uphold Tennessee ban on gender-affirming care:
Conservative justices appeared ready to uphold Tennessee’s law that prevents transgender youth from accessing some gender-affirming medical treatments, as the supreme court heard oral arguments in a case challenging the policy on Wednesday.
The plaintiffs in US v Skrmetti, which was first brought by three trans youths and their parents last year, argue that the law violates the equal protection clause of the 14th amendment because of sex-based discrimination. The decision in the case, which is expected in June, could have sweeping implications for trans youth across the country. According to the Human Rights Campaign, 26 states have passed bans on gender-affirming care, affecting 39.4% of trans youth in the US.
Throughout the two-and-a-half hours of oral arguments on Wednesday, conservatives repeatedly pointed to the potential harms of gender-affirming treatments while the court’s liberals painted the law, known as SB1, as a clear-cut case of sex discrimination that could cause severe psychological damage for transgender children.
Arguing in favor of the petitioners, Elizabeth Prelogar, the US solicitor general, specifically noted that the medical treatments targeted by the Tennessee law, such as puberty blockers and hormone therapy, are still available to young patients for reasons other than gender-affirming care.
“The law restricts medical care only when provided to induce physical effects inconsistent with birth sex,” Prelogar said Wednesday. “Someone assigned female at birth can’t receive medication to live as a male, but someone assigned male can. If you change the individual sex, it changes the result. That’s a facial sex classification – full stop – and a law like that can’t stand on bare rationality.”
Proponents of bans such as Tennessee’s suggest that they help protect trans children from “experimental” treatments, even though major medical and mental health groups support access to gender-affirming care. The court’s conservatives including the chief justice, John Roberts, asserted that this particular case differed from other decisions related to sex discrimination because of its medical ramifications.
“It seems to me that the medical issues are much more heavily involved than in many of the cases that you look to,” Roberts told Prelogar. “And if that’s true, doesn’t that make a stronger case for us to leave those determinations to the legislative bodies rather than try to determine them for ourselves?” --->READ MORE HERE
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