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After Supreme Court Hearing, AG Skrmetti Says Sex Differences Shouldn’t Stop States From Protecting Kids
Does the fact that cross-sex hormones affect children differently based on their sex make it unconstitutional for states to protect minors from transgender medical procedures?
This is the key issue of the case heard Wednesday by the Supreme Court, says Tennessee Attorney General Jonathan Skrmetti, a Republican who is the named respondent in United States v. Skrmetti.
The Biden-Harris administration filed suit against Tennessee on behalf of other opponents, asking the high court to strike down a state law banning transgender medical treatments for minors.
“The fundamental question of the Supreme Court case is: Does the mere fact that hormones affect kids differently mean that any regulation of hormones for kids is going to be a constitutional issue?” Skrmetti told The Daily Signal in a phone interview Wednesday night.
“We regulate medicine all the time,” Skrmetti said. “The states have been regulating the practice of medicine for hundreds of years. And yet we have this one odd carve-out because boys and girls are different, and that’s such a fundamental fact of human existence, it seems hard to see how we could be boxed in and left unable to protect kids just because we happen to have two sexes.”
U.S. v. Skrmetti will decide whether states may ban irreversible transgender medical interventions for children.
The high court is asked to rule on the constitutionality of SB 1, the Tennessee law that protects children from gender-transition procedures.
In Wednesday’s oral argument, lawyers for the U.S. government and the American Civil Liberties Union contended that the Tennessee law discriminates based on sex because it bans transgender medical procedures only “when inconsistent with the patient’s birth sex.”
U.S. Solicitor General Elizabeth Prelagor, representing the Biden-Harris administration, argued that so-called puberty blockers are prescribed to boys and girls with early-onset puberty. It is thus sex discrimination to deny puberty blockers based on sex to children with gender dysphoria, she said.
A doctor may prescribe estrogen to an adolescent female with a hormone disorder, but not to an adolescent male who wants to transition to a female, which Prelagor said is facial discrimination— discrimination that is plainly based on protected class or status.
Justice Amy Coney Barrett posed a hypothetical to her: What if a new drug with the sole purpose of blocking puberty was banned? Prelagor admitted that such a ban would not facially discriminate based on sex.
In his interview with The Daily Signal, Skrmetti said the existence of two biological sexes shouldn’t prevent states from “protecting kids.”
The position that the Tennessee law is sex discrimination is a “hyperformal reading of the law” that is better suited for “statutory text,” the state’s attorney general said.
“When you’re looking at the Constitution, and there were questions [by the justices] to this effect, you have to be careful about an overly formal reading that has significant consequences,” Skrmetti told The Daily Signal. “We’ve long thought that the sex discrimination argument here is misplaced.”
He said sex-based differences in the hormone prescriptions prohibited by the Tennessee law are because of “enduring physical differences” between boys and girls.
“It’s just a fact that our bodies are different,” Skrmetti said, “and they react differently to different hormones.”
Justice Samuel Alito twice asked ACLU lawyer Chase Strangio, who offered the second oral argument against the Tennessee law, whether a transgender identity is “immutable” and unable to be changed.
Strangio, born a woman, says she identifies as a transgender man. She is the first known transgender person to argue before the Supreme Court.
After avoiding the question the first time, Strangio responded to Alito’s second inquiry by saying that she believes that transgender status is immutable.
“I think that the record shows that the discordance between a person’s birth, sex, and gender identity has a strong biological basis and would satisfy an immutable immutability test,” Strangio said, “and I also think under this court’s precedents for determining whether something is a suspect or quasi-suspect classification, a distinguishing characteristic is sufficient.”
Alito brought up detransitioners—those who identified as trans before changing their minds and deciding to live in accord with their biological sex. Strangio acknowledged that this does happen.
“So it’s not an immutable characteristic, is it?” Alito asked.
This exchange was significant because a “characteristic being immutable is part of the determination as to whether a protected class should be recognized,” Skrmetti told The Daily Signal.
“Part of the argument here, from the government and the ACLU perspective, is that there should be constitutional protections for transgender status, and the immutability issue is a really important part of that,” Skrmetti said. “So that was a significant question.”
Justice Brett Kavanaugh posed the question: If harm is caused both by permitting and prohibiting transgender medical procedures for minors, how could the Supreme Court pick a side?
Kavanaugh asked how the court could choose between protecting kids from deeply regretting undergoing transgender medical interventions and allowing kids who say they will be distressed without so-called gender-affirming care to take cross-sex hormones and puberty blockers.
“Because this is a policy decision about balancing risks and benefits, when the state looks at the evidence, it’s allowed to make its own determinations of what to do in response,” Skrmetti told The Daily Signal. “And for the court to constitutionalize this, it takes away the people’s ability to govern themselves.”
If the Supreme Court decided that states can’t ban transgender medical treatments for kids, he said, it would “impose uniformity on a national level when this is still a very underdeveloped area of research, and it doesn’t give states the opportunity to serve as the 50 different laboratories of democracy.”
“Our position is the state should be allowed to decide here, and that if the courts step in, that’s a constitutionally suspect move that’s bad for our constitutional republic,” Skrmetti said.
A ruling against Tennessee’s law also would create “significant precedent as to how to deal with gender identity cases going forward,” the attorney general said. The ruling could affect whether men who say they identify as female should be allowed to compete in women’s sports.
“If the court issues an opinion that clarifies how courts generally should deal with these issues, then certainly the sports cases would be affected,” Skrmetti said.
The post After Supreme Court Hearing, AG Skrmetti Says Sex Differences Shouldn’t Stop States From Protecting Kids appeared first on The Daily Signal.
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