Transgender Rights Goes to the Supreme Court

The logic of federalism, and judicial modesty, would seem to bolster the Volunteer State’s position in the transgender rights case to be heard at the Supreme Court next week. The dispute centers on whether Tennessee and 23 other states can ban sex changes and other so-called “gender affirming” medical treatments for children. President Biden filed suit to void such state-imposed bans, pointing to the 14th Amendment’s guarantee of equal protection.Tennessee contends that its law is necessary at a time when “the number of minors receiving gender-dysphoria diagnoses” has “exploded.” The state points to a “corresponding surge in unproven and risky medical interventions for these underage patients.” The state banned some of these treatments — “puberty blockers, cross-sex hormones, and sex-transition surgeries” — pointing to their “serious and potentially irreversible side effects.”These side effects, which the state says are “undisputed,” include “infertility, diminished bone density, sexual dysfunction, cardiovascular disease, and cancer.” While state law allows adults to receive these treatments, the state says it banned them for “minors who may not be able to fully grasp their lifelong consequences and risks.” Yet Mr. Biden says the treatments are “supported by the overwhelming consensus of the medical community.”For that reason, Mr. Biden argues that laws like Tennessee’s “discriminate based on sex and transgender status.” A “categorical ban on evidence-based treatments” cannot pass muster under legal precedents. Yet as our Benjamin Ryan, among others, has reported, doubts are rampant about this purported consensus. There are concerns that political considerations have led medical groups to rush to judgment on transgender issues without enough evidence.In light of the life-altering and irreversible nature of the “gender-affirming” treatments in question, states like Tennessee would seem to be well within their rights to legislate regulations on such treatment. The Sixth Circuit agreed with the state that the law did not run afoul of the 14th Amendment, noting that the law bars “sex-transition treatments for all minors, regardless of sex.” That could prove significant as the Supreme Court weighs the case.That’s in part because of the Nine’s ruling, by six to three, in the case of Bostock v. Clayton County, in which Justice Neil Gorsuch, writing for the majority, discerned within the Civil Rights Act of 1964 a guarantee of equal rights for gay and transgender individuals. Even though that dispute centered on employment discrimination, it raised the prospect of a broader vindication for transgender rights by the high court in future cases. The riders of the Sixth Circuit, though, in upholding Tennessee’s law, emphasized that “Bostock does not alter this conclusion.” Moreover, the circuit riders pointed to the Dobbs ruling, striking down Roe v. Wade, to discount Mr. Biden’s 14th Amendment arguments. The states, as the riders put it, have long played a “critical role in regulating health and welfare,” especially when it comes to “preserving and promoting the welfare of the child.”The states’ “presumption of legislative authority to regulate healthcare gains strength,” the circuit riders added, in matters of “medical and scientific uncertainty.” That is why, absent a federal law to the contrary, “States may regulate or ban medical technologies they deem unsafe,” the riders said. The Sixth Circuit’s defense of federalism in this case demonstrates the kind of judicial modesty that triumphed in the Dobbs decision.Judges, the circuit riders said, should not “impose a constitutional straightjacket on legislative choices before anyone knows” the outcome of questions of “medical and scientific uncertainty.” The riders stress the need to “look to democracy to answer pioneering public-policy questions, meaning that federal courts must resist the temptation to invoke an unenumerated guarantee to ‘substitute’ their views for those of legislatures.”The riders add that judges “should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out” the kinds of “medical, social, and policy challenges” present in Tennessee’s transgender rights case. Such reasoning seems likely to resonate with the high court’s conservative majority when arguments are heard on December 4 in United States v. Skrmetti.

Transgender Rights Goes to the Supreme Court

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