Transing The Kids Goes To SCOTUS

A Tennessee law putting the breaks on sex-denying medical procedures for minors gets challenged in court

Last Wednesday the Supreme Court heard oral arguments in a high profile case challenging the constitutionality of Tennessee law SB 1, a law aimed at preventing medical “gender transitions” in minors. The case is important as more than half of US states have some kind of restrictions on such transitions for minors, and so the outcome of the case will have a broad impact across the country. The existence of these laws in the US, along with the increasing skepticism regarding these treatments in the very European countries that pioneered them, is a sign that the fever of trans-ideology that has gripped the west over the last 15 years is perhaps beginning to break. But listening to oral arguments only served to reinforce how depressingly deep this incoherent ideology has managed to worm its way into our legal system.

At no point during oral arguments did anyone bother asking exactly what was meant by the word “gender”, despite it being at the very center of the entire debate, even as no one, anywhere, has ever been able to define it in any coherent way. When the US Solicitor General Elizabeth Prologar, one of two lawyers arguing against the law, mentioned the notion of “a gender inconsistent with a minor’s sex”, not one Justice thought to wonder what it even means for gender to be “inconsistent” with sex if, as is supposedly the case, gender is a completely distinct thing from sex.

That grating, reality-denying phrase “sex assigned at birth”, or some variation of it, was mentioned repeatedly throughout the Solicitor General’s arguments with nary a whisper of objection from anyone, as if sex was not a characteristic with which a person is naturally born, but is instead something that is doled out by, well, some unnamed authority, like seats in a grade school classroom. Even Justice Alito, who is usually a reliably sensible voice on the court, casually embraced this semantic nonsense when, after speaking of “individuals who are born male”, he quickly seemed to catch and correct himself, adding “assigned male at birth”.

Alito disappointed even further when, in the midst of drawing an analogy to a law involving schizophrenia, he defensively clarified that “I'm not suggesting that gender dysphoria is a disease, a mental illness. I'm not suggesting that at all.” But why not? If gender dysphoria is not a mental illness, then why in the world would it be listed in the Diagnostic and Statistical Manual of Mental Disorders, just like schizophrenia? If it is not an illness at all, then why does it need to be treated by any kind of doctor, medicines, or medical procedures? Whatever the proper treatment of gender dysphoria might be, it certainly isn’t helpful to begin by denying that it is a mental problem at all.

Listening to oral arguments also highlighted the impossibility of even discussing these issues under the terms dictated by the very gender ideology that makes them an issue in the first place. The supposedly distinct concepts of sex and gender were repeatedly and inadvertently, albeit necessarily, conflated. Solicitor General Prologar claimed at one point that “Someone assigned female at birth can't receive medication to live as a male, but someone assigned male can.” First of all, males don’t need medication to “live as a male”. They are males, by definition, however they happen to be living. What does it even mean for a male to “live as a male”? Indeed, under the logic of trans ideology (such as it is) the very idea of “living as” necessarily refers to gender, not sex. Trans people supposedly want to live as their “true gender”, not to live as the sex they are not. The lie that is trans ideology - that “gender “ is a real thing distinct from sex - was thus exposed by its very own advocate.

Likewise, the terms “boy” and “girl” were used by pretty much everyone when discussing whether sex discrimination is taking place, yet under trans ideology, those terms specifically (even if not coherently) refer not to sex, but to gender. Justice Jackson, who, if her confirmation hearing is to be believed, is herself unable to define what a woman is, repeatedly confused sex with gender. In the context of an analogy meant to show how the law discriminated on the basis of sex, she asked “Why wouldn’t it be differentiating on the basis of gender?” Later, she spoke of someone taking a medication in order to “affirm their gender as male”. Male is a sex category, not a gender category. At a different point Justice Sotomayor similarly conflated sex and gender by making the scientifically illiterate suggestion that people have “the choice of which sex to adopt”.

The confusion is inevitable because the concept of “gender” is utterly incoherent. It depends entirely on semantic misdirection. Unsurprisingly, so too does the plaintiff’s case against the Tennessee law.

The precise legal issue at hand was whether or not the law, which, stripped of all the legalese, essentially prohibits the use of puberty blockers, hormone replacement therapy, and surgery for the purposes of a so-called gender transition, unconstitutionally discriminates on the basis of sex in violation of the Equal Protection Clause. As stated in the law itself, the use of these medications and procedures are prohibited for the purposes of:

(1) Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor's sex; or

(2) Treating purported discomfort or distress from a discordance between the minor's sex and asserted identity

Tennessee’s argument was simple. The categories established by the law, and which determine whether or not these medications and procedures are available, are purpose categories, not sex categories. For example, both boys and girls can get puberty blockers for the purpose of treating the medical condition known as precocious puberty, and they can also both get hormone treatment for the purpose of treating the medical condition called delayed puberty, but neither boys nor girls can get either treatment for the purpose of “transitioning” to the sex they are not. Since in neither case does changing the sex change the outcome, there is no sex discrimination.

The petitioners, however, claim otherwise, and their argument rests entirely on nothing but a re-characterization of the claimed purpose. In other words, it is entirely a semantic, not a substantive, argument. According to the petitioners, the purpose of giving puberty blockers to boys with precocious puberty isn’t to treat precocious puberty. The purpose is instead to “undergo a typical male puberty”. That purpose would be allowed under the law, but the law would not allow a girl who wanted to “undergo a typical male puberty” to get puberty blockers. Keeping the purpose the same while changing the sex produces a different outcome, hence, so the argument goes, it is sex discrimination.

But whatever appeal this clever sounding argument might have to those who oppose this law, even just a little thought shows it to be the worst kind of sophistry. First of all, it is literally impossible for a girl to “undergo a typical male puberty” precisely because she is not a male. No amount of medical intervention will ever produce a “typical male puberty” in a female. But even that obviousness aside, puberty blockers as a medical treatment do not produce any kind of puberty at all, much less a “typical” one, and indeed they do precisely the opposite. Boys with precocious puberty take puberty blockers in order to prevent atypical male puberty, not in order to induce typical male puberty. When it comes time for “typical male puberty” to occur, such boys actually have to stop taking puberty blockers. Again, the argument of the petitioners is nothing but pure sophistry.

But that didn’t stop the progressives on the court from doing their utmost to support and advance this sophistry. Desperate to validate the sex discrimination claim, Justice Jackson challenged the Tennessee Solicitor General Matthew Rice with what she clearly thought was a mic drop hypothetical. Suppose a girl comes in and wants to take testosterone in order to “deepen her voice and affirm her masculinity”. She can’t get that treatment under this law. But a boy who wants it for the same purpose can get it, which makes it a sex distinction, not a purpose distinction.

Now, as a complete aside, Jackson’s hypothetical must surely have produced some awkwardness in the court room, given the presence of one Chase Strangio, one of the lawyers arguing against the law on behalf of the petitioners. The eponymously named Strangio is a trans activist and reportedly became the first ever trans man to present an oral argument before the Supreme Court last Wednesday. The awkwardness of Jackson’s hypothetical will be clear to anyone who heard Strangio’s oral arguments.

There are surely plenty of non-trans examples to be found as well, but listening to Strangio certainly raises questions about the effectiveness of using hormones for the purposes of deepening one’s voice.

Anyway, Strangio’s voice aside, Jackson’s voice-deepening hypothetical wasn’t quite the gotcha moment that she thought, since, as Rice pointed out, no one can get testosterone for the purpose of deepening one’s voice, because simply wanting a deeper voice is not a medical condition. As he made clear:

You cannot use testosterone for purely cosmetic reasons. It's a Schedule III drug. You are not allowed.

Undeterred, Jackson moved the goalposts, pointing out that that prohibition exists in a different statue, and if we look at just this statute and this statute alone, divorced from the context of all other Tennessee law, a boy might be able to get it for such a reason when a girl could not. And so, she triumphantly proclaimed, it must be discriminating on the basis of sex. To Jackson apparently the fact that this statute does not redundantly disallow something that is already disallowed under other Tennessee law somehow makes this one unconstitutional. Go figure.

But Jackson’s point was at least understandable on its own terms. When Solicitor General Rice argued that weighing the risks of these drugs/procedures versus their “unproven benefits” was something that legislatures, not judges, were best fit to do, Justice “Wise Latina” Sotomayor dismissively pointed out that “even taking aspirin” comes with risks. Then, simply assuming the existence of the very benefits that the Solicitor General had said were “unproven”, she came up with this inexplicable mess of a question/point:

The question is: Can you stop one sex from the other -- one person of one sex from another sex from receiving that benefit? So, if the medical condition is unwanted hair by a nine-year-old boy who can receive estrogen for that because, at nine years old, if he has hair, he gets laughed at and picked on and his puberty is coming in too early, but a girl who has unwanted hair says -- or wants -- unwant -- has unwanted breasts, or a boy at that age can get that drug, but the other can't, that's the sex-based difference. It's not the -- the medical condition is the same.

Huh?!?!

There is almost nothing in that statement that makes any sense whatsoever. Can you stop one person of one sex from another sex from receiving that benefit? What?

Unwanted hair on a 9 year old boy is the same medical condition as unwanted breasts on a girl of unspecified age? What is she talking about?

She even seems to be utterly confused about the difference between puberty blockers and hormone treatment. Precocious puberty in a 9 year old boy is going to be treated with puberty blockers, not estrogen, which is also the very last thing a girl with unwanted breasts is going to be looking to get, regardless of her age. And this is the kind of mind pontificating on what is and is not Constitutional at the highest court in the land?

At least as bad as the convoluted confusion she spouts is the arrogant tone she takes when doing so. She prefaced the above incoherence by interrupting the Solicitor General with an exasperated and condescending “I’m sorry counselor”, as if what he had been saying was so over-the-top wrong she couldn’t take listening to it any more. The claim about which she was so exasperated was the uncontroversial fact that democratically elected legislatures are better constitutionally situated than are unelected judges to weigh the benefits and harms of something when determining whether and how to regulate it. At another point, she questioned Rice over whether a doctor, when faced with a “sex-neutral-looking child” who says they don’t want to grow breasts, would need to determine the child’s sex before knowing whether he was allowed, under the law, to prescribe puberty blockers. Rice began to reply with “I don’t think so”, but before he could explain why, he was quickly interrupted as Sotomayor went off on a tangent about how she “often” mistakes girls for boys. She then bizarrely, because it was so completely irrelevant, warned Rice “I hope that you’re not going to tell me you haven’t made that mistake”. If there is an example of the Dunning-Krueger effect sitting on SCOTUS, she is it.

Who knows which way this case will go. There is little doubt that the three progressives, Sotomayor, Kagan, and Jackson, will rule it to be unconstitutional, but Constitutionalists can console themselves that they need two more votes, and it isn’t clear where they will come from. Roberts is never a sure thing, and the fact that Gorsuch didn’t involve himself in the proceedings at all, the only justice not to do so, makes him hard to measure. The fact that he was the author of the Bostock opinion makes him even harder to size up on this issue. But most legal analysts seem to think that the Court will, in the end, vote to uphold the law, which would be a win both for the Constitution and for the future well-being of troubled adolescents in Tennessee and elsewhere. Here’s to hoping.