The Supreme Court on Wednesday upheld a Tennessee law barring "gender affirming" treatments for minors, and, in doing so, specifically rejected claims that the ban amounts to sex discrimination or that transgenders are part of a protected class. The decision was a fractured 6-3 ruling along predictable lines:
GORSUCH, KAVANAUGH, and BARRETT, JJ., joined, and in which ALITO, J., joined as to Parts I and II–B. THOMAS, J., filed a concurring opinion. BARRETT, J., filed a concurring opinion, in which THOMAS, J., joined. ALITO, J., filed an opinion concurring in part and concurring in the judg ment. SOTOMAYOR, J., filed a dissenting opinion, in which JACKSON, J., joined in full, and in which KAGAN, J., joined as to Parts I–IV. KAGAN, J., filed a dissenting opinion.
At issue was a 2023 Tennessee law that prohibits genital mutilation, hormone "therapy," and puberty blockers for minors who are dealing with the illusion that they are not the sex they were born with. The drug industry and the medical-pharma complex assert, without evidence, that the treatments are benign, but a growing body of evidence emerging from Europe calls the insouciance of that claim into question. Tennessee was sued by three transgender teens, their parents, and the surgeon who would be performing the surgery.
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Supreme Court to Examine Tennessee's Total Ban on Transgender Surgery for Minors – RedState
In the short term, this is a huge victory for sanity. We have created a society where a minor can't get a tattoo, but they can have life-altering drug and surgical treatments. Twenty-four states have passed very narrowly targeted laws like Tennessee's, and they are under legal siege. Florida, Ohio, Indiana, Montana, North Carolina, and West Virginia have all had laws similar to Tennessee's struck down by state or federal courts. The determination that a desire to change your sex does not create an aggrieved class where laws are held to "heightened scrutiny," will be critical to tamping down this destructive medical practice.
This is by no means a final victory. Chief Justice John Roberts did a creditable job in undoing some of the damage Neil Gorsuch inflicted upon the nation in his malicious Bostock v. Clayton County decision where he conflated transgenderism and homosexuality with biological sex (see Federal Appeals Court Uses Gorsuch Opinion to Hint Transgender Athletes Have a Constitutional Right to Play Women's Sports)..
The Court declines to address whether Bostock’s reasoning reaches beyond the Title VII context—unlike the employment discrimination at issue in Bostock, changing a minor’s sex or transgender status does not alter the application of SB1. If a transgender boy seeks testos terone to treat gender dysphoria, SB1 prevents a healthcare provider from administering it to him. If his biological sex were changed from female to male, SB1 would still not permit him the hormones he seeks because he would lack a qualifying diagnosis. The transgender boy could receive testosterone only if he had a permissible diagnosis (like a congenital defect). And, if he had such a diagnosis, he could obtain the testosterone regardless of his sex or transgender status. Under the reasoning of Bostock, neither his sex nor his transgender status is the but-for cause of his inability to obtain testosterone.But th
The oral argument and the dissenting opinions indicate that, as Churchill said, "Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.” See: Supreme Court Hears Oral Arguments on Trans 'Treatments' for Kids, and Things Get Absolutely Wild.
During the oral arguments, Justice Sotomayor, also known as the Wide Latina, equated genital surgery with taking aspirin. Justice Jackson fell back on her reliable standby, racism. She equated Tennessee's law with banning interracial marriage because, well, no one was ever able to figure that out. The case was argued by a transgender attorney ironically named Chase Strangio. Strangio, indeed (see Ketanji Brown Jackson: Banning 'Gender-Affirming Care' for Kids Is Like Banning Interracial Marriage – RedState).
The vituperation carried over into the dissenting opinions. This is from Sotomayor's conclusion:
The Court’s willingness to do so here does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight. It also authorizes, without second thought, untold harm to transgender children and the parents and families who love them. Because there is no constitutional justification for that result, I dissent.
And, Roberts, of course, when given the opportunity to swat one over the right field wall and into the parking lot, settled for bunting a single. The court leaves open the question of whether transgenders are a "suspect" class, the equivalent of sex, race, or religion, that would make all legislation and regulation subject to "weighted scrutiny." Roberts glided around the issue, but it isn't going away. Kagan agrees with Sotomayor that transgenders are a class that requires judicial protection. Alito, Thomas and Barrett all write concurrences that deny transgenders are a suspect class. In failing to drive a stake through this particular vampire, it will rise again in the future.
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