Transgender Rights Go to the Laboratory of the States

Will the Supreme Court’s ruling today on transgender rights mark a turning point on an issue that is roiling America? One can hope so. For the question settled today — whether Tennessee and 24 other states can bar children from getting medical treatments to change their biological sex — is one in which common sense favored the states. The Nine’s ruling allowing the law to stand is a victory, too, for an increasingly rare commodity these days, judicial modesty.Chief Justice Roberts, writing for a majority of six, found that the Constitution was no bar to Tennessee’s law. He is candid about the heated rhetoric in the debate over what’s euphemized as “gender affirming care” for children who feel what he calls an “incongruence between gender identity and biological sex.” There are, he says, “fierce scientific and policy debates about the safety, efficacy, and propriety” of these “medical treatments in an evolving field.”It’s to the majority’s credit in this case that the berobed sages deferred to the text of the Constitution, as opposed to rushing to judgment based on their own appraisal of the medical and ethical questions involved. “The Equal Protection Clause does not resolve these disagreements,” Chief Justice Roberts says. “Nor does it afford us license to decide them as we see best.” The court’s task is not, he adds, “to judge the wisdom, fairness, or logic” of the law.Having determined that the law does not run afoul of the 14th Amendment’s guarantee of equal treatment, Chief Justice Roberts concludes, “we leave questions regarding its policy to the people, their elected representatives, and the democratic process.” This homage to state’s rights echoes Justice Louis Brandeis’s view of states as “laboratories of democracy” in which policy questions can be sorted out locally in the absence of one-size-fits-all federal laws. In this case, the Nine deferred to the legislators at Nashville. The text of their law concedes that minors can experience “discomfort or distress” over their biological sex. Yet the law reflects the solons’ worries that transgender treatments like “puberty blockers and hormones” could lead to a “minor becoming irreversibly sterile, having increased risk of disease and illness, or suffering from adverse and sometimes fatal psychological consequences.”More to the point, the lawmakers marked that children “lack the maturity to fully understand and appreciate” these risks, and could later regret a decision that cannot be undone. Yet, at an age when these youngsters cannot legally even drive a car or buy a pack of cigarettes, the transgender movement insists on allowing them to make potentially irreversible changes to their bodies. Surely that’s not a choice to be made by, say, a 12-year-old.The majority resisted the suggestion of transgender advocates and the liberal dissenters on the high bench that the Tennessee law, and others like it, amount to a form of sex discrimination. That’s because the law still allows the use of, say, hormone treatments to treat children with conditions like precocious puberty. Chief Justice Roberts sliced through that illogic by noting that the “key aspect of any medical treatment” is “the underlying medical concern.”An ACLU lawyer, Chase Strangio, who argued against the state law at the high court, calls today’s decision “a devastating loss for transgender people.” Such alarmism overlooks the distinction that needs to be drawn between adults and children when it comes to sex-altering treatments and procedures. Justice Samuel Alito emphasizes this point in a concurrence, noting that the Tennessee “law’s restrictions apply only to the treatment available to minors.” He adds: “Once individuals reach the age at which they are able to make informed decisions about medical care, the law imposes no restrictions.” At a time when the transgender movement is pushing to expand notions of fluid gender identity among minors — even seeking to limit parental notification when schoolchildren, say, seek to change their sex — this distinction between the rights of minors and adults warrants marking in sharp relief, as the court has done.

Transgender Rights Go to the Laboratory of the States

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