On Wednesday, Dec. 3, the U.S. Supreme Court heard oral arguments in one of this term’s major cases, United States v. Scumetti. At issue is the constitutionality of Tennessee Statute SB1 (codified in Tenn. Code Ann. § 68-33-103(a)(1)), which states that “a minor may Any medical procedure aimed at “enabling self-identification” is prohibited. or “living as an identity that does not match the minor’s alleged gender” and “dealing with discomfort or distress resulting from the mismatch between the minor’s gender and the alleged gender” identity. “
Tennessee is one of 26 states with such restrictions on surgeries and drugs intended to “alter a minor’s physical appearance to better resemble the opposite sex.”
Challenges to these types of laws are typically brought by parents seeking medical intervention for their minor children who profess a gender identity different from their biological sex. The underlying lawsuit, LW v. Scumetti Parents, argues that SB1 violates the Due Process Clause of the Fourteenth Amendment by stripping parents of their right to make medical decisions for their children. I was doing it. Plaintiffs also say the law violates the Amendment’s Equal Protection Clause, which states that discrimination on the basis of sex cannot “deny to any person within the jurisdiction the equal protection of the laws.” insisted.
The Sixth Circuit upheld the law, finding SB1 constitutional based on both due process and equal protection analyses. Last year, the Eighth Circuit struck down a similar Arkansas law, but only on the basis of equal protection. The United States then intervened in the Scrumetti case to advance the Equal Protection Clause argument.
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U.S. Attorney General Elizabeth Preloger and American Civil Liberties Union (ACLU) attorney Chase Strangio defended the government and parents, respectively, arguing that SB1 is considered a gender-based restriction and that no gender should be subject to interim review. argued that it should be evaluated under the The distinction under the law must be substantially related to the achievement of an important goal of the government, a burden that the state has failed to meet.
Tennessee Attorney General J. Matthew Rice stated that this law does not discriminate on the basis of sex, but rather restricts access to certain medical interventions based on age and the type of medical purpose for which such interventions are used. He claimed that he was just doing it. Therefore, Rice argues that as a routine exercise of the state’s power to regulate health care generally, a rational basis review is appropriate, requiring only that the law be reasonably related to achieving legitimate government goals. he claimed.
During two-and-a-half hours of arguments, five of the court’s conservative justices focused on the benefits of providing experimental gender-affirming care to minors and that the court should be responsible for deciding on complex facilities. He seemed skeptical about the idea. Resolve the medical issues at the root of the conflict, rather than leaving these decisions to Congress. In one line of questioning, Chief Justice John Roberts pressed ACLU attorney Strangio that the case “involves issues of constitutional apportionment of power.” . . (My) understanding is that the Constitution leaves that issue in the hands of the people’s representatives, not nine non-physicians. ”
Justice Brett Kavanaugh echoed the chief justice’s concerns, asking Preloger: “If the Constitution doesn’t take sides, and there are strong and powerful science policy arguments on both sides in this situation, why isn’t it best to leave the Constitution alone?” Democratic Process To? ”He declared that if the court was interested in protecting the democratic process in this area, it would simply apply intermediate scrutiny, sending the case back to the lower court and reconsidering the merits on that basis. He answered that there is a possibility of creating a narrow opinion. Examination standards based on rational basis.
Justice Samuel Alito was particularly concerned by what he saw as Preloger’s blithe dismissal of a body of scientific evidence that cast doubt on the benefits of gender-affirming care for minors. Amid recent developments in Western Europe that indicate a growing distrust of early gender interventions, Alito cited the landmark Cass report released earlier this year, noting that the report There is no evidence that positive treatment reduces suicide.” He scolded Preloger, saying she had “relegated Kass’ report to a footnote.”
The court’s three liberal justices appear to have accepted Preloger’s argument that “gender classification is built into the face of the law, creating a primary restriction prohibiting gender inconsistency.” . . Congress was doing something different to help minors understand their sexuality and not be looked down upon. It is not a medically based justification. ”
Justice Sonia Sotomayor specifically argued against Rice that the law was simply a restriction based on age and medical purpose, stating that the only way to know whether SB1 prohibits a drug is because a doctor must have a sex change. They argued that they needed to know whether the child seeking medicine was male or female. Use of those drugs. She said it’s “very difficult to see how the democratic process would protect transgender individuals,” just as it has failed to protect women and people of color for decades. he claimed. Justice Elena Kagan also expressed the view that SB1 is a gender-based classification, stating that SB1’s medical purpose is “entirely and completely about sex.”
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The short question concerned whether transgender status qualifies a suspect or quasi-suspect class for the purposes of an equal protection analysis, as the government requested later in its brief. As Justice Amy Coney Barrett was quick to point out, the suspect class previously identified by the court is distinct from the so-called transgender population in that it has suffered a long history of statutory discrimination. . He also noted that courts have so far refused to identify new classes of suspects based on characteristics such as age and disability. Barrett also noted that no matter what the court decides, the separate due process question of whether SB1 violates a parent’s fundamental right to make medical decisions for their child will remain. Then he emphasized.
Notably silent throughout oral arguments was Justice Neil Gorsuch, author of the majority opinion in Bostock v. Clayton County in 2022, the only gender identity case the court has ever heard. In Bostock, the court held that because sexual orientation and transgender status are “inextricably tied to sex,” sex discrimination under Title VII of the Civil Rights Act of 1964 does not include discrimination based on sexual orientation and gender identity. It was decided that this included. In his analysis for the Bostock majority, Gorsuch argued that employers tolerate attitudes and behaviors of one gender, do not tolerate attitudes and behaviors of another gender, and discriminate against employees based on those attitudes and behaviors. It says the firing resulted in unacceptable gender-based discrimination.
Perhaps it was the court’s decision in Bostock that prompted Justice Ketanji Brown Jackson to allude to the court’s 1967 Loving v. Virginia decision, which struck down Virginia’s ban on interracial marriage. Probably. In a conversation with Preloger, Jackson said both incidents involve “generalizations of how we expect[particular groups]to live and maintain order.” he claimed. Preloger agreed, noting that “there are similarities in the laws that say you can’t act contrary to a protected characteristic.”
Whether Mr. Gorsuch was simply being thoughtful or preoccupied with concerns about Mr. Bostock’s influence on the burgeoning field of transgender rights will only be known when the case is handed down next year.
