Supreme Court Delivers the Obvious Result in Skrmetti
Supreme Court Delivers the Obvious Result in Skrmetti
Sanity has prevailed on the issue of sex-change surgeries for children.
The Supreme Court on Wednesday issued its ruling in United States v. Skrmetti. The highly anticipated decision resolves a legal challenge to Tennessee’s law restricting surgical and hormonal interventions purporting to change the gender of children. In a 6–3 decision written by Chief Justice John Roberts, the Court ruled in favor of sanity, upholding the Tennessee law.
Tennessee had banned surgical and hormonal interventions for minors with gender dysphoria. There are many reasons to impose such a ban. First and foremost, “changing one’s gender” is not possible because it does not comport with nature and the design of the human person.
But putting fundamental reality aside, there are additional, prudential reasons to stop these procedures for minors: Despite the clearly biased and ideologically driven “science” that supposedly shows sex-change surgeries are good and healthy for confused children, the adverse consequences are becoming increasingly obvious as more data becomes available. The long-term effects of doing these terrible things to minors are starting to come to light. While we shouldn’t need statistics to prove that it is good to prevent emotionally troubled and confused children from mutilating their sex organs, they help bolster the obvious argument.
If leftist activists want to oppose laws like the one in Tennessee (about half of U.S. states have similar laws), fine. Start a movement and go convince the voters that children should be able to surgically sterilize themselves or take drugs to interfere with puberty. But when a sane state like Tennessee passes a law banning these procedures for minors, activists in our modern era of litigiousness and judicial supremacy do more than engage in grassroots political advocacy; they call the law unconstitutional, bring it to the Supreme Court, and try to shut down the debate by judicial decree.
So, what was their argument? Opponents of the Tennessee law claimed that it violates the Equal Protection Clause of the Fourteenth Amendment. The text of the Equal Protection Clause is straightforward: “No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” This Civil War-era amendment was meant to ensure that states could not legally disfavor groups of people on account of characteristics such as race: no separate sets of laws and regulations for white people and black people, etc.
As Fourteenth Amendment jurisprudence expanded, courts (often legitimately, sometimes overbroadly) applied the Equal Protection Clause to ensure that other groups of people were not being treated unequally under the law based on characteristics such as religion or sex. But using the Equal Protection Clause to challenge a law banning surgical or chemical mutilation of children goes far beyond any reasonable interpretation of the Fourteenth Amendment; the Court was right to stop that argument in its tracks.
While I joked with some colleagues that I would have been satisfied with a one-sentence ruling stating “Tennessee’s law banning transgender procedures for minors does not violate the Equal Protection Clause; that is a stupid argument,” I am pleased with an important distinction made by Roberts. The opinion noted that the Tennessee law
incorporates two classifications: one based on age (allowing certain medical treatments for adults but not minors) and another based on medical use (permitting puberty blockers and hormones for minors to treat certain conditions but not to treat gender dysphoria, gender identity disorder, or gender incongruence).
This is important, because neither age nor medical use are classifications that warrant heightened scrutiny when reviewing the constitutionality of a law. When certain types of classifications (such as race) are being singled out in a law, courts adopt a high level of scrutiny. In all other cases (including those alleging Equal Protection violations based on age or medical status), courts apply what is called “rational basis scrutiny,” which is extremely deferential to the state and will only strike down the law if the state has no rational basis for enacting the law.
Those challenging the Tennessee law knew that, of course. So, they had to craft an argument stating that these laws were, in fact, discriminating on the basis of sex. This argument had been sadly successful in the abominable 2020 Supreme Court decision in Bostock v. Clayton County, where the Court held that discrimination on the basis of sexual orientation or gender identity counts as discrimination “because of . . . sex” for purposes of Title VII of the Civil Rights Act. Ever since Bostock, it has always been a concern that this faulty logic would be carried further, allowing successful arguments that any law adverse to the LGBT movement constitutes sex-based discrimination.
Fortunately, the Court in Skrmetti was having none of that. Roberts made it quite clear that the Tennessee law is not discrimination based on sex. Adults (of either sex) continue to have access to these medical procedures. So, it simply is not about sex; nobody is being singled out based on sex. Children of either sex who have bona fide hormonal imbalances have access to hormone treatments; children of either sex who are diagnosed with gender dysphoria do not. Sex-based discrimination has nothing to do with this law.
Further, the Skrmetti case provides some hope that the illogic of Bostock will not spread. The Court does not confront this danger head on—the opinion makes it clear that the ruling in Bostock is distinct and does not apply here because under the Tennessee law a child will be denied the same surgical or hormonal treatments whether the child is a boy or a girl. But the opinion does show some hesitation about Bostock’s future.
The Court is clear that it has never decided whether the logic of Bostock extends to any law beyond Title VII, and the Court refuses to consider that question in Skrmetti. Justice Clarence Thomas, in an excellent concurring opinion, goes further and says that the logic in Bostock “fails on its own terms.” So, while this case in no way dislodges the Bostock problem from U.S. law, it at least halts it in its tracks and refuses to inappropriately expand the definition of discrimination on the basis of sex.
While the Skrmetti opinion may not be as forceful as conservatives would like, it is an important win. This precedent protects the ability of states to pass laws that restore sanity by stopping dangerous, experimental medical procedures from being performed on minors. It is a shame that this is necessary: In no world should it be conceivable to call it a violation of equal protection to ban the mutilation of confused youngsters. But we live in dark times, and we must take wins where we can get them. Skrmetti is clear that laws related to transgender procedures for minors are not instances of unconstitutional sex-based discrimination, which frees red states to continue passing laws for the common good. That is a win.
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