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Let’s start with the easy part. Following Wednesday’s arguments in the United States v. Skrmetti, I am confident the Court will rule that the Constitution’s Equal Protection Clause, which prohibits discrimination on the basis of sex, does not affect Tennessee’s law protecting minors against changing gender characteristics (what some call ‘gender discrimination’). confirm care’). The justices likely to be in the majority, Chief Justice Roberts and Justice Kavanaugh, had no interest in courts becoming medical experts who would oversee various experimental procedures under a constitutional lens.
That’s a good sign, as far as it goes. But there were surprises.
Most of the arguments reflected the justices’ classic urges. An extremely prepared Judge Alito questioned the Biden administration on whether it believed its own bizarre statement that “overwhelming evidence” shows that transgender surgeries “directly and substantially” improve the well-being of “transgender adolescents,” as the Cass report directly debunks this. . (Yes, they support that.)
THE SUPREME COURT APPEARS TO BE DIVIDED ON STATE BANS ON GENDER TRANSITION TREATMENTS FOR MINORS
Judge Kavanaugh, ever the diplomat, nodded to the “very strong arguments” in favor of changing gender characteristics. (Sigh.) Judge Sotomayor has figured out that “only” 1% of children experience regret after their body parts are removed. (Even the ACLU had to correct her that the figure was “as low as” 1% and applied after puberty, and that at least 85% of trans-identifying minors regret this.) And Judge Jackson said that this argument “ felt familiar. against her because it paralleled the ban on interracial marriage. (No, castrating minors and interracial marriage are not comparable.)
But one thing was very different.
Judge Gorsuch did not speak. Not a word, for example.
This would be strange in any scenario. Judge Gorsuch likes to make arguments and honestly have a conversation in the courtroom. But also Judge Gorsuch is the reason this argument is here to begin with. As the author of Bostock v. Clayton County, Judge Gorsuch wrote the decision that sex discrimination includes discrimination marginally related to sex, namely policies that uniquely affect trans-identifying people. That decision set off a firestorm of lawsuits asserting the rights of trans-identifying men to enter women’s locker rooms, play sports and have access to cross-sex hormones. Would he explain Bostock’s limitations or applicability? Expand its reach? Silence.
Justice Neil Gorsuch said, “A good judge will regard it as a precedent of the Supreme Court of the United States as a precedent treatment like any other,” when asked about Roe v. Wade. (Jonathan Ernst/REUTERS)
The second surprise came in response to my hoped-for question. What’s happening to women’s sports? Judge Kavanaugh wondered, if Tennessee’s law is subject to constitutional scrutiny, as the ACLU and Biden administration want: “Would transgender athletes, as you see it, have a constitutional right to play in women’s and girls’ sports, despite fair competition and safety? problems that have occurred vocally increased?”
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I gasped at the answer. The Biden administration said unequivocally that the Constitution’s gender equality requirement already bans women’s sports unless women can provide sufficient justification. Biden’s lawyer simply shrugged that “cisgender women” can assert their rights in court. The ACLU agreed.
Not a single judge jumped from his or her seat and said, “Forcing women to assert their interests in court would mean the end of women’s sports!!” But it would.
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And that’s my concern. I’m not sure the Court has understood what it would mean to put a constitutional lens on any policy that treats men and women equally, but not in the same way – the end of women’s sport, space and privacy . Because even if women could win a lawsuit, what city volleyball league has the money to even try?
We can expect a protracted battle in the courts, as courts slowly begin to grapple with the left’s vast resources to erase the reality of sex.
