A Tennessee law banning the drugging and surgical mutilation of children (doing business as gender-affirming care) has gotten a lot of support from the other side during oral arguments. The lawyers representing the side trying to get the law tossed out didn’t arrive at the Big School prepared to answer the hard questions.
The ones you need to answer are you are going to pretend that something as fluid as gender – by your standards – is entitled to constitutional protection. Tennessee, as well as many other states, regulate medical treatments of all sorts without question, without the flying anti-discrimination monkeys coming for them. Protecting children is also something they do a lot of, and each state’s population has the right to decide what that means and how to manage it.
The Transgender movement and the rainbow mafia could care less about details. Their appeals are emotional. Fear, mostly, padded with false empathy – lacking entirely in substance. A tack that fell apart when faced with even the most basic constitutional scrutiny. Why this had to go to the US Supreme Court to be so easily unwound suggests that the lower courts are still a partisan mess.
Justice Thomas asked a simple question that I first thought was a veiled criticism but turned out to be a wily judicial trap: “What remedy are you seeking?” he asked the government’s lawyers. Trans lawyer Chase Strangio (pictured above) was flustered, but eventually coughed up something about an injunction. (My goodness, what an ironic last name.)
The implied criticism was that if the Justice had to ask, the requested remedy must not have been completely clear from the briefs, which is a rookie mistake, and one that it is nearly unbelievable the overpaid government lawyers could have made. But that’s not where he was going. Then Justice Thomas sprang the trap with a followup question: “So practically, you would get different treatment based on sex?”
In other words, either way girls and boys are treated differently. Under the Tennessee law, boys “receive” testosterone (naturally) but girls “aren’t allowed to.” But if the law were enjoined, girls could receive testosterone supplements (from doctors) but boys can’t, since boys who are “transitioning” must get testosterone blockers.
If the defining characteristic is treatment (medical), which is different (mutable), depending on the circumstances, that’s clearly up to the states.
Justice Alito laid a similar trap that sliced the trans case in two. He asked them “whether transgender status is immutable.” This was key because only innate, unchangeable characteristics, like race or biological sex, are considered constitutionally protected. People’s characteristics that can change, such as their weight, hairstyle, national origin, virtuous yard sign ownership, face tattoos, or smoking status, cannot be protected by discrimination laws for a very straightforward reason.
If discrimination laws were available for mutable characteristics, then people could choose to voluntarily join a discriminated class and immediately acquire more legal rights over other citizens. Plus, as a practical matter, trying to protect characteristics that people can select between and change quickly becomes completely unworkable. …
In other words, the Fourteenth Amendment’s Equal Protection Clause was only designed to address systemic inequalities tied to deeply ingrained societal prejudices over things people cannnot control, like their skin color, rather than protecting people’s individual preferences or lifestyle choices. …
If transgenderism isn’t immutable, then it isn’t biologically based, and thus isn’t protectable.
The transgender lawyer didn’t fare well, proving that the US Supreme Court may not be the best place to test drive your diversity hire, especially for appearance’s sake. That isn’t constitutionally protected and won’t get you where you claim you want to go.
I suspect this will result in a partisan split, upholding the Tennesse law and every other one like it, encouraging states like mine to take additional steps to protect minors. We prohibit bottom surgery but need to ban the rest of the transgender assault on minors.
For the record, adults can spend their money to modify their bodies however they like.
As for gender as a protected class, I don’t expect SCOTUS to toss that out the window entirely, but given the tack of the debate, if mutable characteristics cannot be protected Constitutionally by anti-discrimination law, more than a few states, including mine, will have some legal language they can’t enforce.
