The Next Chapter in the Transgender Issue

A divided US Supreme Court has heard all oral arguments in United States v. Skrmetti, where the plaintiffs challenged a decision of the Sixth Circuit written by Chief Judge Jeffrey Sutton, which upheld a Tennessee statute banning medical and surgical interventions in transgender cases for minors. Sutton reached that conclusion only after making extensive findings about the improprieties of the practice and by stressing the risks associated with the procedure, including hormonal risks, removal of sex hormones, sterility, and adverse effects of other diseases, as well as long-term consequences that “are experimental in nature and not supported by high-quality, long-term medical studies.”

The Sutton opinion drew a sharp dissent from Senior Circuit Judge Helene White, who took a leaf from the work of the World Professional Association for Transgender Health (WPATH), which she said “is the leading association of medical and mental health professionals with expertise in treating gender dysphoria,” and from the Endocrine Society, “an organization representing more than 18,000 endocrinologists.” According to these organizations, “Gender-affirming care”—the name given to these procedures by their supporters—“improves short- and long-term outcomes for adolescents with gender dysphoria by reducing rates of depression, anxiety, self-harm, and suicidality, and brings their mental health into alignment with their peers.”

It should be evident that a full disposition of this ongoing controversy requires an analysis of multiple concerns. One central concern is the role of parents in determining whether their child should receive treatment. In instances when parents oppose treatment, should their opposition be decisive, or should public officials, as has been urged by California Attorney General Rob Bonta, be allowed to override that choice without telling parents? Alternatively, in those cases where parents have supported the decision to receive medical or surgical treatment, does the state face a heavy burden to show some form of abuse or neglect to override their judgment?

As pitched to the Supreme Court, the issues of parental choice dropped out of the case. Instead, the question presented stated explicitly that the only issue at stake was:

Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the Fourteenth Amendment.

In my view, the case should be easily disposed of. It can be assumed that sex classifications have long been subject to examination under the Equal Protection Clause of the Fourteenth Amendment, where the level of scrutiny applied is commonly described as “intermediate.” The easiest way to understand that term is to note that it sits awkwardly between the low “rational basis” standard of review, and the higher “strict scrutiny standard.” In functional terms, the court imposes the lowest standard of review because it is thought that the state intervention is normally productive so that extensive proof is needed to displace it, which is often the case in connection with matters regulating health and safety. At the other pole—most notably with race classifications and preferred freedoms such as speech—the level of scrutiny is strict, on the view that state regulation is normally likely to do more harm than good.

This classification has been buffeted about in many cases, but in this instance the simple and correct view is that the law should be upheld on the ground that it does not involve any form of sex discrimination at all. Thus, the statute would fall of its own weight if it prohibited these procedures on girls while allowing them for boys, or vice versa. But the statute and its legislative history make it abundantly clear that in all cases, the prohibitions apply equally to minor boys and to minor girls, which has always been the focus on discrimination by sex.

At this point, the level of scrutiny should drop down to the rational basis test, which generally has applied to matters of health and safety, as well as to the protection of minors. In cases of this sort, it is common for courts to give substantial deference to the findings that support the statute, so that the findings would not be displaced simply because it can be shown that one body of evidence—namely, that presented by WPATH—takes the opposite position. In this connection, it is powerful evidence to note, as the Tennessee laws does, that the Tennessee statute was not a one-off. It is not just the case that twenty-six red states have passed similar laws. It is also the case that similar bans on these procedures have been adopted in Sweden, in part in response to the final version of the Cass Review in England, whose two major findings were in line with the findings of the Tennessee legislature:

• The rationale for early puberty suppression remains unclear, with weak evidence regarding the impact on gender dysphoria [and] mental or psychosocial health. The effect on cognitive and psychosexual development remains unknown.
• The use of masculinising/feminising hormones in those under the age of 18 also presents many unknowns, despite their longstanding use in the adult transgender population. The lack of long-term follow-up data on those commencing treatment at an earlier age means we have inadequate information about the range of outcomes for this group.

The great challenge for Solicitor General Elizabeth Prelogar was to find a way to walk through the minefield set by the record. Her first move was to argue that this was really a case of sex discrimination after all, because the permissible use of testosterone on boys to deal with growth issues means it must be allowed for girls who wish to transition. But the obvious response is that estrogen treatment may well be standard for girls, but this novel approach is in violation of the general norms of medical practice as they existed before the current controversy, so under a rational basis test, it is surely the case that this standard governs. She also argued that even if it were the case that transitioning was countermanded in some cases, the entire case could be remanded for further consideration to take into account “how critical [medically necessary treatment] is for any individual patient.” But under a rational basis test, these individual errors are always tolerated because so long as there is a loose fit between the statutory remedy and its underlying purposes, the statute passes muster even if there is no perfect fit between the remedy and the underlying abuse.

The only way, therefore, that the government could win this case is to abandon the equal protection argument and turn its attention again to the issue of parental rights. At this point, the initial premise is that parental rights are such a part of the American tradition that it takes more than a generalized health concern to strip away those rights under some rational basis test. I am in general sympathetic with the view in the two 1920s cases Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), which, respectively, struck down a ban on teaching children German in any public, private, or religious school, and prohibited taking children out of public schools. And this approach was strongly affirmed in the recent Pennsylvania District Court decision in Tatel v. Mt. Lebanon School District, which emphatically held that the parents had a strong constitutional right on both religious and due process grounds to determine when first-grade children should be instructed on transgender values in school. Clearly the rights of both parents and children are implicated here, and neither case adopts the low rational basis standard.

Hence, if Prelogar had her way, the case could be remanded to give her a second bite at the apple in a regime that protected parental rights. But would it be worth the risk? The general view after oral argument is that Tennessee is likely to prevail in the defense of its law as the matter now stands. But suppose the next challenge seeks to make a due process claim that the Tennessee law flunks the higher standard of intermediate scrutiny. The real risk advocates face is that a defeat under this standard would be a huge setback to the transgender movement. Thus, under this standard, Tennessee could then open Pandora’s box and argue that the record supports all of the legislative findings it made. In so doing, it will be able to refer to the very detailed observations that were included in the amicus brief filed by the Alabama attorney general, where an extensive record has already been compiled through discovery. That brief was in large part directed to undermining the credibility of WPATH by gathering troublesome information in discovery about the tight connections between Rachel Levine of Health and Human Services in the Biden administration and WPATH, whereby the group agreed to “remove from the guideline all age limits for chemical treatments, chest surgeries, and even surgeries to remove children’s genitals.” The entire episode prompted an angry column from Andrew Sullivan titled “Rachel Levine Must Resign.”

There are two sides to every argument, but WPATH faces a substantial chance of losing, and the reputational hit would be far greater than if it accepted a loss on the equal protection argument that raises none of these issues. Yet, even then, it is likely to confront a mass of evidence on both its medical procedures and evidence that could, and should, keep it in an ever more precarious position.

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