US Supreme Court Upholds Tennessee Ban On Pediatric Sex Lobotomies
Gender ideology has its biggest public policy reversal to date
In a decision and three concurrent opinions that could have been written by any group of TERFs with law degrees, the United States Supreme Court has ruled that minor children experiencing or expressing ‘gender dysphoria’ do not “classify on the basis of transgender status” as a “quasi-suspect class” deserving special protections from state legislatures.
The 6-3 majority ruled that a higher level of scrutiny than “rational basis review” is not warranted for a population that cannot even define itself. The decision lets stand the Sixth Circuit ruling which “declined to recognize transgender individuals as a suspect class, finding that transgender individuals are neither politically powerless nor a discrete group defined by obvious, immutable, or distinguishing characteristics.”
However, the Court left open the ultimate question of whether transgender identification has protections in law, or what those specific protections would be. “This Court has not previously held that transgender individuals are a suspect or quasisuspect class. And this case, in any event, does not raise that question because [the legislation at issue] does not classify on the basis of transgender status,” the majority opinion by Chief Justice John Roberts says.
“This case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field,” Roberts writes. “The Equal Protection Clause does not resolve these disagreements.” Rather than “judge the wisdom, fairness, or logic” of the Tennessee ban on pediatric ‘transition medicine,’ the majority agrees that the statute does not violate equal protection. The disagreements of the Court start from there.
“Recent developments demonstrate the open questions that exist regarding basic factual issues before medical authorities and regulatory bodies in this area, underscoring the need for legislative flexibility,” the Court ruled. Per Court precedent in FCC v Beach Communications, the normal standard of review for any state law is “any reasonably conceivable state of facts that could provide a rational basis for the classification.” The Court found such a rational basis. Emphasis added:
Tennessee determined that administering puberty blockers or hormones to minors to treat gender dysphoria, gender identity disorder, or gender incongruence carries risks, including irreversible sterility, increased risk of disease and illness, and adverse psychological consequences. The legislature found that minors lack the maturity to fully understand these consequences, that many individuals have expressed regret for undergoing such treatments as minors, and that the full effects of such treatments may not yet be known. At the same time, the State noted evidence that discordance between sex and gender can be resolved through less invasive approaches. SB1’s age- and diagnosis-based classifications are rationally related to these findings and the State’s objective of protecting minors’ health and welfare.
I am not a constitutional lawyer, but I see a potential plot-twist here: the Court is leaving open the possibility that the “affirmation-only” approach to ‘gender distress’ in minors has itself been a rights violation. Detransitioner lawsuits are constitutional. Indeed, the Court takes note that detransitioners exist: altogether, there are seventeen references to them in the majority opinion and the three concurring opinions.
Justice Thomas
Roberts is keen to defend his 2020 Bostock decision from the efforts of both the Biden administration and the nonprofit legal world to expand its narrow meaning to a wish-list of transgender policy demands. Justice Clarence Thomas, who ordinarily says little in court or in print, wants to “make clear that, in constitutional challenges, courts need not engage Bostock at all.”
Thomas excoriates the plaintiffs’ appeal to the authority of experts, a logical fallacy. Expertise is not a license to countermand elected representatives, and anyway “there is no medical consensus on how best to treat gender dysphoria in children.” At best, medical consent of children to future harms is a questionable endeavor, as evidenced by “recent revelations” — namely, the Alabama amicus brief on WPATH internal communications — “suggest that leading voices in this area have relied on questionable evidence, and have allowed ideology to influence their medical guidance.” Thomas has done the reading.
Plaintiffs “would permit elite sentiment to distort and stifle democratic debate under the guise of scientific judgment, and would reduce judges to mere ‘spectators . . . in construing our Constitution,’” Thomas writes. “States are never required to substitute expert opinion for their legislative judgment, and, when the experts appear to have compromised their credibility, it makes good sense to chart a different course.”
Historically, “when this Court has nonetheless given exalted status to expert opinion, it has been to our detriment: Past deference to expertise provided the theory of eugenics ‘added legitimacy and considerable momentum,’ with ‘[t]his Court thr[owing] its prestige behind the eugenics movement in its 1927 decision upholding the constitutionality of Virginia’s forced-sterilization law,’” Thomas reminds the court.
Indeed, progressives cheered the Buck v Bell decision 98 years ago and today the progressives are bemoaning Skrmetti. The abundance of autism and associated traits in the ‘transgender’ youth population suggests the progressives have not changed their views in a century.
Justice Barrett
Justice Amy Coney Barrett has researched the history of quasi-suspect classes and finds that ‘transgender’ is demanding to be the first of its kind. “For purposes of the Fourteenth Amendment, the relevant question is whether the group has been subject to a longstanding pattern of discrimination in the law. In other words, we ask whether the group has suffered a history of de jure discrimination” by state legislatures. “Existing suspect classes had such a history.”
“The test is strict, as evidenced by the failure of even vulnerable groups to satisfy it: We have held that the mentally disabled, the elderly, and the poor are not suspect classes,” she points out. “In fact, as far as I can tell, we have never embraced a new suspect class under this test.” In a line that could have been written by J.K. Rowling, Barrett notes that “transgender individuals do not share the ‘obvious, immutable, or distinguishing characteristics’ of ‘a discrete group’,” which “is enough to demonstrate that transgender status does not define a suspect class.”
Barrett specifically cites the lower court case of Grimm v. Gloucester Cty. School Bd., in which a teenage girl sued to use the boys’ restroom at school, as an example of the precarious gray zones that plantiffs want the Court to create. “Courts are ill suited to conduct an open-ended inquiry into whether the volume of private discrimination exceeds some indeterminate threshold,” she writes. “By contrast, they are well equipped to analyze whether there is a history of legislation that has discriminated against the group in question” — and that is not the case, for the ‘transgender population’ is five seconds old, historically speaking.
“In future cases, however, I would not recognize a new suspect class absent a demonstrated history of de jure discrimination.” Thomas is signalling that the Court will not expand Bostock as long as he is on it. Barrett is signalling that she will not expand the ‘transgender’ franchise as long as she is on the Court.
Justice Alito
To no one’s surprise, Alito too wants to emphasize that “neither transgender status nor gender identity should be treated as a suspect or ‘quasi-suspect’ class.” Whereas Roberts wants to stop just short of this pronouncement, Alito thinks he is just putting off the inevitable. “That important question has divided the Courts of Appeals, and if we do not confront it now, we will almost certainly be required to do so very soon,” he urges.
Adding emphasis to Barrett’s point, Alito writes that “transgender persons, like members of other disadvantaged groups — the poor, the aged, the disabled, etc. — have not made the extraordinary showing that they are entitled to a higher level of constitutional scrutiny.” He cites the same reasons, in plain language, as if to underline them for the American legal profession.
Transgender status is not “immutable,” and as a result, persons can and do move into and out of the class. Members of the class differ widely among themselves, and it is often difficult for others to determine whether a person is a member of the class. And transgender individuals have not been subjected to a history of discrimination that is comparable to past discrimination against the groups we have classified as suspect or “quasi-suspect.”
At least three justices are signalling that the Court will not support efforts to establish ‘transgender’ as a quasi-suspect class through constitutional litigation. For now, the current Chief Justice is still paying for his mistake in Bostock. Justice Neil Gorsuch is notably quiet in Skrmetti. Thomas is 76, Alito 75. Barrett is 53, I say we make her the next Chief Justice.
Justice Sotomayor
The most disappointing thing about Justice Sonia Sotomayor’s opinion is that she has seemingly not engaged the ‘non-afirming’ amicus briefs at all. Not only has she failed to do any homework, Sotomayor was apparently asleep or daydreaming during oral arguments last December as Chase Strangio of the ACLU admitted no evidence exists that ‘trans kids’ are at higher risk of suicide.
Using activist language, Sotomayor insists that chemical castration for children is a “lifesaving medical treatment,” that “access to care can be a question of life or death,” and hypes suicide risk at three different points in her dissent. It is not her only invocation of the transgender creed — puberty blockers give children “time to further understand their gender identity” and consider having a “puberty consistent with their gender identity,” whatever that means. But it is her most disturbing recitation of gender cant.
Notably, Sotomayor uses the analogy of a hypothetical law which “prohibit[s] minors from attending any services, rituals, or assemblies if done for the purpose of allowing the minor to identify with a purported identity inconsistent with the minor’s religion.” It is strange that the liberal justice chose to make such a quasi-religious argument, while the majority opinion, ostensibly driven by religious fervor, refutes Sotomayor without a single sectarian reference. Aside from Thomas attempting to glom the decision onto Dobbs, no discernible ideology animates any part of the majority opinions.
“Whether the law prohibits a minor from attending any particular religious service turns on the minor’s religion: A Jewish child can visit a synagogue but not a church, while a Christian child can attend church but not the synagogue,” Sotomayor writes. Apparently, being a ‘trans kid’ is exactly like being a Jewish kid, except that instead of a mitzvah they get hormones. This is the actual reasoning Sotomayor brought to the Skrmetti decision.
Despite the ‘trans child’ being preexistent, like a soul, their civil rights are to be defined by want instead of need, Sotomayor says. “Desiring to ‘identify with’ a gender identity inconsistent with sex is, of course, exactly what it means to be transgender,” Sotomayor writes. Try it with any other protected class, however, and the conceit falls apart: My desire to ‘identify’ with a race inconsistent with whiteness is exactly what it means to be transracial. Confessing to a religious view of gender actually works better as an argument.
Confusion reigns in this dissent. Sotomayor makes a cosmetic argument that genderwoo doctors “help adolescents identified as female at birth look more masculine and those identified as male at birth look more feminine” (emphases added). This body horror is fine as long as the parents consent, Sotomayor says.
She wants the court “to determine whether the challenged sex classification in SB1’s categorical ban is tailored to protecting minors’ health and welfare, or instead rests on unlawful stereotypes about how boys and girls should look and act.” This is a complete moral inversion. Literally nothing in the Tennessee statute says anything about how boys and girls should look and act, and the Court has not been asked to rule on how boys and girls should look and act. The plaintiffs are the ones who think that how children look and act should determine whether they are boys or girls in ‘need’ of cross-sex hormones.
More ominously, Sotomayor claims the Tennessee law is sex discrimination because it “necessarily deprives minors identified as male at birth of the same treatment it tolerates for an adolescent identified as female at birth (and vice versa).” This is dangerously delusional. “Some medical treatments and procedures are uniquely bound up in sex,” the Court majority opinion retorts, and indeed ‘sex change’ is one of these. “In the medical context, the mere use of sex-based language does not sweep a statute within the reach of heightened scrutiny.” Sotomayor thinks it should, which is madness.
Justice Elena Kagan added a terse dissent calling for heightened scrutiny, i.e. special protections for ‘trans kids’ as a quasi-suspect class. Justice Ketanji Brown Jackson, who told her Senate confirmation hearing that she does not know what a woman is because she is not a biologist, joined the dissent without comment. Sotomayor therefore stands out in this dissent, to her undying shame. The most telling feature of her argument is the use of parent testimonials, an emotinally manipulative tactic that smacks of historical patent medicine fraud. Which brings us to our final point about this decision.
What comes next
The American Association of Pediatrics has put out a statement responding to the Skrmetti decision. Reflecting an organization stuck in the denial stage of grief, it claims that “the science” still supports chemical castration of minors, and misleadingly notes that the decision does not “explicitly” ban such “care.” AAP promised a systematic review of the evidence for pediatric transition two years ago. Nothing has been heard from AAP about that systematic review since then, for there is frankly no actual scientific evidence that any child has ever been ‘born in the wrong body.’ AAP is gong to be devoured by litigation.
Strangio, who likely engineered the Skrmetti case making it to the Supreme Court ahead of the Alabama Boe v Marshall case, whined that the ruling is “a devastating loss for transgender people, our families, and everyone who cares about the Constitution.” Cathryn Oakley of the Human Rights Campaign vowed to continue wasting member contributions on “remaining legal pathways to challenge these laws.” The decision is “devastating and really scary” for people who sold children and parents on a lie that human sex difference is mutable, Oakley says.
We can only hope that this is true. The people who extorted families with suicide blackmail, and wrecked the bodies and lives of children with utter disregard for scientific or medical ethics, deserve to be afraid. On that note, the Federal Trade Commission is holding a workshop on 9 July which “will include doctors, medical ethicists, whistleblowers, detransitioners, and parents of detransitioners” to “share perspectives grounded in research, expertise, and personal experience.”
Section 5 of the Federal Trade Commission Act gives the FTC broad authority to protect consumers from unfair or deceptive acts or practices. This authority could be implicated if there is evidence that medical professionals or others omitted warnings about the risks or made false or unsupported claims about the benefits and effectiveness of gender-affirming care for minors.
The workshop will help the FTC to understand whether consumers are being or have been exposed to false or unsupported claims about “gender-affirming care” and to gauge the harms consumers may be experiencing.
Patent medicine fraud is fraud. Justice is coming. It will not happen all at once, and some battles will be lost along the way, but a corner has been turned with Skrmetti. The costs of insuring pediatric ‘transition’ will rise, now. Doctors, hospitals, and professions will increasingly be deterred from providing ‘gender medicine’ to youth. Blue states will resist these changes, but they are fighting rearguard actions. On this question, both public opinion and the Supreme Court have made a decisive turn.
Genderwoo Media Prepares To Ignore Supreme Court Skrmetti Decision
A reader of The Advocate will be left with the impression that the pending Supreme Court decision on pediatric transition bans is entirely the result of one evangelical religious organization filing a single amicus brief. Altogether, 74 different organizations, entities, or individuals filed amicus briefs in the case, but
Much better than the one I put up, considering I had to scramble to write it at the very moment Skrmetti dropped.