The Supreme Court ruled 6-3 Wednesday that Tennessee’s ban on gender affirming care in cases of gender dysphoria does not trigger heightened legal protections. At the same time, it permitted the same exact care for minors going through other conditions like precocious puberty.
Chief Justice John Roberts, writing for the majority, claimed that the law turns on the age of the patient and its medical uses, and that is has nothing to do with sex. This wobbly argument lets him avoid the 14th Amendment and its higher standards for laws that target sex.
The decision was fractured among the justices, with many writing independently, though all three liberals dissented.
In contorted reasoning, Roberts wrote that while the group forbidden from getting gender affirming care is comprised entirely of trans individuals, the group allowed to get the same care for other diagnoses may include trans individuals, so it’s not discrimination.
“Absent a showing that SB1’s prohibitions are pretexts designed to effect invidious discrimination against transgender individuals, the law does not classify on the basis of transgender status,” he wrote.
He added, unbelievably, that minors may “regret” getting getting puberty blockers or hormones, that they lack the “maturity” to make the choice to get such medical treatment — while in the same breath saying it’s fine for minors to get the exact same treatment for non-trans related diagnoses.
Roberts tries to wriggle out of the reality that the law bans care only for trans youth by saying that that difference between a boy seeking puberty blockers to treat his gender incongruence (banned) and the same boy seeking the same puberty blockers to treat precocious puberty (permitted) is the different diagnoses. Of course, the diagnosis of gender dysphoria is inextricable from the boy’s trans status.
Sotomayor wrote that the law is a clear-cut case of sex discrimination, which should trigger heightened scrutiny.
“By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims,” she wrote. “In sadness, I dissent.”
Sotomayor wrote repeatedly that the Tennessee legislature didn’t attempt to hide its motivation: It passed the gender affirming care ban to encourage “minors to appreciate their sex.”
She also pointed out that the Court came to the opposite conclusion in Bostock, a 2020 surprise decision where Roberts and Justice Neil Gorsuch joined the liberals to find that Title VII of the Civil Rights Act, which bans sex-based discrimination in employment, encompasses discrimination based on sexual orientation and gender identity. In other words, anti-trans bias is sex-based discrimination, and should have triggered intermediate scrutiny in the gender affirming case. Gorsuch, who joined Roberts in full, neither spoke during oral arguments nor wrote for Wednesday’s decision.
She scoffed at the majority’s attempt to recast Tennessee’s ban in a neutral light by claiming that no minor of any sex can get gender affirming care for gender dysphoria, and that any minor of any sex can receive the treatment for other diagnoses.
“A prohibition on interracial marriage, for example, allows no person to marry someone outside of her race, while allowing persons of any race to marry within their races,” she wrote.
Sotomayor lamented that minorities including trans people, long the subject of violence and discrimination and brutally underrepresented in government, need judicial protection the most. Tennessee’s argument, that the courts shouldn’t wade into such a controversial topic, sounds “hauntingly familiar” to those familiar with Loving v. Virginia, in which the state fought to uphold its ban on interracial marriage, she added.
Thomas chimed in to add that not only does Bostock’s finding — that sex discrimination encompasses discrimination based on sexual orientation — not apply in constitutional cases, but that maybe heightened scrutiny for sex discrimination shouldn’t exist at all since courts didn’t start applying it until the 1970s. Justice Samuel Alito came to a similar conclusion on the Bostock reasoning.
Thomas also spent some time beating up on all of the major medical organizations that approve of responsible gender affirming care for trans youth, finding their views “irrelevant” and a promotion of “elite sentiment” over democratic debate. He cheered that the Court rejected such medical consensus in Dobbs. He himself included a lengthy, fear-mongering section on the side effects of gender affirming surgery, which is not part of the case.
Thomas also joined Justice Amy Coney Barrett who took the case even further in professing her belief that trans people can never constitute a suspect class, which is entitled to heightened protections.
“The Sixth Circuit held that transgender individuals do not constitute a suspect class, and it was right to do so,” she wrote unequivocally.
That stance could ripple out beyond this case, particularly if the other conservatives share it. Alito does explicitly in his concurrence.
Read the ruling here:
If only there were legislative history and public statements of the proponents.
The decision is not a surprise. It just isn’t. And the process will be rapidly challenged in as many as twenty States (over-run by GQP dingbats) before the end of the year.
Why let facts get in the way of a good narrative?
Does this mean teen boys can no longer get breast reduction surgeries? One of the most common forms of gender affirming treatments.
I was talking to my one sister yesterday. While she supports transgender rights, she still questions transgender women competing in sports, especially if they already went through male puberty.
I reminded her that Trump and many states are trying to outlaw transgender care for minors, which would outlaw puberty blockers and hormone therapy. So these (very few) transgender female athletes would be fucked.