Tennessee's “transgender” medical care regulations for children are not about sex discrimination against boys and girls, but are meant to protect children from immature decisions, the state's top lawyer told the Supreme Court on Wednesday. Ta.
“The only way they get to a sex-based relationship is [focus] by equating fundamentally different treatments. [for boys and girls]” Tennessee Attorney General J. Matthew Rice told nine justices on Dec. 4.
Regulated puberty-blocking drugs 'have mixed effects' [male or female] And once you recognize the medical reality, there is no debate that our laws differentiate between the treatment of men and women,” Rice said.
Rice's medical reality versus sexism argument will win if it can convince one or both of the court's key swing votes, Justices Brett Kavanaugh and Neil Gorsuch.
Mr. Kavanaugh has repeatedly suggested that elected officials should be able to set rules for transgender treatment, which is uncertain, novel and high-stakes. “The Constitution is neutral on this issue,” Kavanaugh said. “Why isn't it best to leave it to the democratic process?”
Gorsuch remained silent and gave no indication of his views.
In 2020, Mr. Gorsuch issued a landmark ruling granting legal protections to employees who identify as the opposite sex in the workplace. of Bostock v. Clayton County This decision was based on the argument that an individual's choice of male or female appearance is a civil right that trumps an employer's different expectations for the appearance of male and female employees.
Rice's argument is important because the nine justices are under intense pressure to reject transgender laws that treat both genders differently.
This pressure also comes from the courts' long history of prohibiting sex discrimination in law, education, and the workplace, and from progressive judges who are passionate about creating legal rights for people who say they are transgender. There is.
Transgender ideology asserts that the government must enforce the demands of individuals who claim transgender status to be treated as members of the opposite sex. This ideology therefore argues that courts and police should punish citizens, employers, and colleagues who refuse to use opposite-sex pronouns when dealing with people who claim scientifically unverifiable transgender status. are.
Progressive Justice Elana Kagan said the Tennessee law is unfairly intended to discriminate against transgender people by encouraging children to “appreciate their sexuality and not despise it.” , criticized the Tennessee law.
The law promotes sexist claims that boys and girls must “look and live like boys and girls,” she said, adding:
Insofar as this indicates that part of what the state was trying to do was to ensure that adolescent bodies conformed to the state's physical expectations of what men and women should look like, here I think it would add an extra layer of gender classification. It's not at all surprising to think of it like this. [unconstitutional] Gender classification.
“To say this is not gender-based is an understatement,” she added.
Rice replied:
that [appreciate their sex language] It is simply a recognition given the high refusal rates of minors and the tragic regrets of detransitioners. [those who quit transgender treatments]have an interest in ensuring that minors have sufficient viewing time. [the consequences] Before making a life-altering change. So I think this needs to be seen in the context of legislative findings that highlight both the high proportion of detransitioners and detransitioners.
As for becoming[not] He despises their sex. “of [pro-transgender] Challengers don't explain why it's a problem [for legislators] to prevent [transgender medical] Interventions that may actively cause minors to feel contempt for their own sexuality. [be subject to] Mental illness. And in fact, there are multiple studies that show minors' actual mental health and suicidal tendencies worsen after receiving these interventions.
this [treatment] Because it poses positive harm to the minor receiving the intervention; [legislators] They said they didn't want any intervention that would lead minors to despise their own sexuality.
Similarly, Judge Ketanji Brown Jackson repeatedly portrayed Tennessee's law as a reproduction of racial discrimination by Virginia and other states.
[Virginia argued] scientific evidence [about interracial marriage] is substantially questionable, and courts should follow the wisdom of state legislatures in adopting policies to discourage interracial marriage. And for me…we just [saying] “Well, there are many good reasons for this policy. How can we, as a court, say otherwise?” I am. [anti-discrmination] case.
President Joe Biden's lawyers are working with transgender groups to oppose the Tennessee law. His attorney general, Elizabeth Preloger, reiterated the same argument that safety restrictions on transgender treatment amount to unconstitutional sex discrimination.
“I share your concerns,” Preroger told Brown.
If Tennessee's end run was high [judicial] Scrutiny by asserting at the outset that biology justifies sex discrimination in law would undermine this court's decades of precedent. [about sexual discrimination].
Previously, Preloger argued that Tennessee law treats boys and girls differently.
[The Tennesse law] regulates by drawing gender-based lines and declares that these lines are intended to encourage minors to understand their own gender. The law limits medical care only to cases where it is provided to cause a physical effect inconsistent with one's birth sex. Those assigned as female at birth cannot receive medicine to live as a man, while those assigned as male can.
Preloger's use of the novel terms “birth sex” and “assigned female at birth” is a progressive argument that transgenderism allows people to escape the biological limitations of being female or male. It reflects hope.
That hope requires judges to do more than enforce equality between the sexes.
So progressive judges now want to help pro-trans politicians gradually blur the cultural and legal primacy of equal, distinct, and complementary genders. .
But transgender goals clash with progressive judges' long-standing efforts to equalize the status of two distinct genders: men and women. For example, courts have long held that equality means women have their own public restrooms for convenience, safety, and sexual privacy. Transgenderism, by contrast, now claims that men are free to enter women's restrooms by declaring themselves transgender women.
Some of the justices suggested there was a legal conflict between the competing goals of sexual equality and transgenderism.
“Is transgender status permanent?” Justice Samuel Alito asked a second transgender lawyer, Chase Strangio.
This issue is important. Because the judiciary makes it easy for the judiciary to grant progressives' goal of special protections, known as “quasi-suspect classification,” to people who can change their transgender status from day to day or change the definition of transgender from time to time. That's because you can't. time.
Mr. Strangio argued that his self-declared “transgender” status, which is ever-changing and undefined, deserves special legal protection under common law established by elected politicians. insisted.
“Transgender people are characterized by a gender identity that differs from their sex at birth,” he said.
It is distinct and discrete…I think the record shows that the discrepancy between a person's birth sex and gender identity has a strong biological basis and would satisfy the test of immutability. Masu [needed to win the legal protections of “quasi-suspect classification”]. I also believe, based on this Court's precedent for determining the classification of something as a suspect or quasi-suspect, that distinguishing characteristics are sufficient.
Alito then asked, “Does transgender status apply to gender-fluid individuals?”
“While it may include people who have different understandings of their gender identity, I still think it is characterized by a mismatch between birth sex and gender identity,” Strangio said. insisted.
The justices also asked Mr. Strangio and Mr. Preloger whether the court's “quasi-suspicious classification” ruling on transgenderism would allow men to play in women's sports. Both Mr. Strangio and Mr. Preloger dodged the question.
The court hearings ended at noon, with the justices set to draft, debate and decide each issue, likely by June.
Transgender advocates were pessimistic about the likely outcome.
The case is USA vs. ScumettiU.S. Supreme Court No. 23-477.
