Posted on Thursday, December 5, 2024
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by Aaron Flanigan
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25 Comments
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On Wednesday, the Supreme Court heard oral arguments in United States v. Skrmetti, a case challenging a Tennessee law that bans so-called “gender-affirming care” for children. Early indications suggest the Court is poised to uphold the Tennessee law, delivering a major blow to the gender ideology regime.
The Tennessee law, enacted in 2023, bans gender surgeries for minors and prohibits doctors from prescribing cross-sex hormones to minors who believe they are transgender. Tennessee is one of 26 states that have similar laws on the books. If the Court upholds Tennessee’s law, it would affirm that every state has the right to ban such practices.
The number of minors receiving this so-called “gender-affirming care” has seen a dramatic rise in recent years, with kids as young as eight being placed on hormone therapies that can leave them permanently sterile and kids as young as 13 undergoing permanent, life-altering surgeries with high complication rates.
As SCOTUSblog reported, the Skrmetti case was initially brought on behalf of several transgender-identifying youth, “along with their parents and a doctor who treats transgender patients.”
The Biden administration later joined the case under a law that empowers the government to intervene in cases that ostensibly violate the right to equal protection under the law “if the Attorney General certifies that the case is of general public importance.” Specifically, the government is arguing that Tennessee’s law banning gender surgeries on minors violates the 14th Amendment’s Equal Protection Clause.
The Tennessee law in question had been only partially upheld by a U.S. district judge, who ruled that the legislation violates the Constitution’s guarantee of equal treatment for Americans in similar circumstances.
According to the “transgender”-identifying plaintiffs in the case, the “legal uncertainty” surrounding gender-altering drugs and procedures “is creating chaos across the country for adolescents, families, and doctors.”
But the High Court’s conservative majority appears poised to disagree—signaling a ruling that would uphold the Tennessee law and protect children from the perils of so-called “gender-affirming care” at the end of the Court’s term in summer 2025.
The Republican-appointed justices indicated that they believe the High Court has no role in adjudicating the matter of “gender” treatment—leaving the availability of “transgender”-affirming drugs and procedures up to state legislatures.
“The Constitution leaves that question to the people’s representatives, rather than to nine people, none of whom is a doctor,” Chief Justice John Roberts stated. Justice Brett Kavanaugh agreed: “The Constitution doesn’t take sides on how to resolve the medical and policy debate,” he said. “The Constitution is neutral on the question.”
Kavanaugh also focused on laws permitting men to participate in female sports, noting that it would likely not be “logically and legally possible” to rule against the Tennessee law while upholding “laws that limit women’s and girls’ sports to exclude transgender athletes.”
In one particularly brilliant moment, Justice Alito led lawyers for the government to acknowledge that individuals can be assigned one gender at birth, identify as another gender later in life, and then return to identifying as their gender assigned at birth. By definition, then, Alito pointed out, transgender status is not an immutable characteristic. As civil rights law is based on immutable characteristics like race and sex, this basic reasoning undermines the entire legal premise behind the government’s case.
The Court’s Democrat-appointed justices were unsurprisingly more sympathetic to the government’s claims, suggesting that the Tennessee law relies upon sex to determine who is legally entitled to medical treatment. But J. Matthew Rice, the Solicitor General of Tennessee, shot back, assuring them that the Tennessee law relies on “medical purpose” rather than sex-based distinctions—contending that the state is merely exercising its power to regulate medicinal practices for all minors regardless of their sex.
Justice Amy Coney Barrett agreed: “The burdens of the law fall equally on boys and girls, because neither can transition” under the law.
The states, Rice explained, “in their traditional role as regulators, have had to intervene” to protect the well-being of children, challenging the liberal justices’ claim that the Tennessee law encroaches on the right of parents to make decisions about their children’s medical care.
As Americans await the Court’s opinion in United States v. Skrmetti this summer, it is worth noting that, prior to Donald Trump’s election in 2016, Justices Clarence Thomas and Samuel Alito were the only reliable constitutionalists sitting on the High Court. But that all changed with Trump’s three appointments—Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—who handed constitutional conservatives a majority which has handed down a series of landmark decisions.
If Justices Roberts, Thomas, Alito, Kavanaugh, and Barrett rule to uphold the Tennessee law, which they appeared poised to do on Wednesday, the Court would deliver another landmark ruling protecting children from gender ideology – not to mention upholding basic biological reality and common sense.
Aaron Flanigan is the pen name of a writer in Washington, D.C.
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