Federal Court Says the Puberty Blockers Lobby is 'Not a Politically Powerless Group'

6th Circuit decision is a clinic on deconstructing 'trans law'

There is law, and then there is ‘trans law.’ Normal law is about facts and the laws. ‘Trans law’ is about pounding the table, for there are no facts underlying it and the laws seldom mean or even say what ‘trans law’ practitioners want them to mean and say.

Last week, the 6th US Circuit Court of Appeals decided that bans on puberty blockade for minors in Tennessee and Kentucky can go into force, vacating the injunction of a lower court. Two of the three judges on the panel issued a blistering rebuke to the American Civil Liberties Union on important points of fact and law.

Children and parents demanding puberty blockers are “not a politically powerless group,” the court observed. Emphasis added:

The President of the United States and the Department of Justice support the plaintiffs. A national anti-discrimination law, Title VII, protects transgender individuals in the employment setting. Fourteen States have passed laws specifically allowing some of the treatments sought here. Twenty States have joined an amicus brief in support of the plaintiffs. The major medical organizations support the plaintiffs. And the only large law firms to make an appearance in the case all entered the controversy in support of the plaintiffs. These are not the hallmarks of a skewed or unfair political process—and they offer no explanation for inviting a greater political dysfunction problem: the difficulty of amending the Constitution if the federal courts err in choosing to occupy the field.

The ACLU is essentially a law firm of law firms. Like most high-level professions, this field has been taken over by the woke in recent years. But the ACLU has gone out of its way to promote ‘trans kids’ and champion sterilizing puberty blockers for children, celebrating homophobic conversion therapy and medicalized sexist stereotyping.

Lawmakers are allowed to make laws against things they think are harmful, the court says. “Neither risk aversion nor a fair-minded policy dispute about the best way to protect children shows animus.” It is not ‘hate’ to pass a law against puberty blockers.

“At bottom, the challengers simply disagree with the States’ assessment of the risks and the right response to those risks. That does not suffice to invalidate a democratically enacted law on rational-basis grounds.”

Of course, the ACLU was outraged, tweeting that “This fight is far from over. We'll never stop fighting for trans youth and their families to get the medical care they need.”

“The ACLU is suffering from severe institutional psychopathology,” psychologist J.D. Haltigan responded.

Leor Sapir retorted that the ACLU will eventually stop its blinkered campaign “once your donors realize that many of these kids are gay, and most are troubled teens who need proper mental health support. The real question is what accountability will look like for you,” he said.

Defects in the ACLU’s argument are not going away, for they are trying to establish special rights for a special group without defining that group either in fact or law.

“One simply cannot define, or create, a protected class solely by the nature of a denied medical benefit: in this instance childhood treatment for gender dysphoria. Else every medical condition, procedure, and drug having any relation to biological sex could not be regulated without running the gauntlet of skeptical judicial review,” they write.

At core, what the ACLU has tried to do is make the ‘trans child’ a suspect class. In American law, a suspect class is any group of people who are likely to experience discrimination. Courts use a set of criteria to decide whether a particular group is a suspect class.

If so, then any law which would discriminate against that class is presumed to be invalid unless the government can demonstrate ‘a compelling interest’ behind the legislation.

The ACLU cannot meet this test here because the category they use is too broad. “Instead of defining a ‘discrete group,’ ‘transgender’ can describe ‘a huge variety of gender identities and expressions’,” the court writes.

Furthermore, ‘transgender’ is an impermanent state — quite unlike being black, or female. “It is not necessarily immutable, as the stories of ‘detransitioners’ indicate and as plaintiffs do not dispute.”

For anyone who has been in this issue space for a while, these are familiar arguments. Radical feminists were first to make them. It is gratifying, indeed hope-inspiring. to see them appear in legal language written by federal judges applying them to real cases.

Some other key points:

• The court is not having any nonsense about the Bostock decision. Whereas the Supreme Court made it very clear in that decision that it only applies to Title VII and not other areas of federal law such as Title IX, this is exactly what the ACLU has tried to argue in multiple courts. Whereas the Bostock decision was about sexist stereotyping, “a concern about potentially irreversible medical procedures for a child is not a form of stereotyping.”

• Parents have no ‘right’ to sterilize their kids. “Becoming a parent does not create a right to reject democratically enacted laws,” the court says. “The government has the power to reasonably limit the use of drugs, as just shown. If that’s true for adults, it’s assuredly true for their children, as also just shown. This country does not have a custom of permitting parents to obtain banned medical treatments for their children and to override contrary legislative policy judgments in the process.”

• Kids have no ‘right’ to demand to be sterilized. “While our longstanding traditions may give individuals a right to refuse treatment, there is no historical support for an affirmative right to specific treatments,” they write.

• The science is hardly ‘settled.’ “It is difficult to maintain that the medical community is of one mind about the use of these hormones for gender dysphoria when the FDA is not prepared to put its credibility and testing protocols behind the use.”

• The ACLU is trying to circumvent democracy. “This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two,” they write.

  Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments. That is precisely the kind of situation in which life tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges.

• The ACLU’s ‘experts’ do not have all the answers. “Question after question arises under plaintiffs’ approach. And answer after answer confirms that expert consensus, whether in the medical profession or elsewhere, is not the North Star of substantive due process, lest judges become spectators rather than referees in construing our Constitution.”

Federal judges are learning to see through the thin veil of gender gibberish, a welcome trend. The American Civil Liberties Union deserves this 6th Circuit decision. They have more than earned the rebuke, for they are not protecting a vulnerable class of people at all. Actively harming gay and lesbian children can, eventually will, be an indelible stain on the record of the ACLU.