Tennessee passed a law last year that bans trans kids from receiving medical treatments such as puberty blockers and hormone therapy if those treatments are prescribed to help them transition. Today the Supreme Court heard oral arguments on whether the law is constitutional. Ian Millhiser explains that the legal question at issue is whether the law discriminates based on sex:
While Matthew Rice, the Tennessee solicitor general defending his state’s law, tried many times to deny that this law classifies based on sex, he eventually admitted that it did after being pressed by Justices Sonia Sotomayor and Jackson.
Jackson, for example, asked Rice whether this law would permit a boy who seeks testosterone because he wants to deepen his voice and otherwise enhance his masculinity to receive that treatment, and Rice eventually conceded that, under the specific law at issue in this case, the boy could. Rice then eventually admitted that, if a girl sought the same treatment for the same purpose — to deepen her voice and to make her body appear more masculine — Tennessee’s law would prohibit her from receiving the treatment.
This matters because, in United States v. Virginia (1996), the Supreme Court held that “all gender-based classifications” are subject to “heightened scrutiny,” meaning that the law is treated as presumptively unconstitutional and the state has to prove that its law was not enacted for impermissibly sexist reasons.
It appears likely that this case will split almost perfectly along partisan lines. The three liberals all said that sex discrimination is sex discrimination and it's illegal. Five (and maybe all six) of the conservative justices spent their time casting around for why this should be an exception, eventually landing on the idea that medical procedures are different and judges shouldn't presume to stick their noses in.
That's the most dismal thing about this case: that it's so nakedly partisan. The principle at hand—is this sex discrimination?—is in no way either liberal or conservative. On the one hand, you could legitimately argue that the hypothetical sex discrimination in this case is minuscule and shouldn't stand in the way of the state's interest in protecting minors—regardless of whether you agree with the state. But you could also legitimately argue that, as with freedom of speech, even small violations need to be rigorously pushed back.
But because the case happens to be about trans rights, everyone finds a way to make a technical question into a partisan one. Does anyone believe, for example, that if this were a law banning the removal of tonsils in girls the justices would line up the same way?
Now, I'd add that the conservative stand in this case displays a lot of chutzpah coming from a group of justices who recently overturned Chevron on the grounds that judges are perfectly capable of evaluating highly technical issues and shouldn't have to defer to anyone's expert judgment. But that's now inconvenient, so presumably we'll end up with some kind of doctor exception where judges should defer.
The Supreme Court has always been political, but has it ever been so nakedly political? In boring regulatory or tax cases the justices still cross party lines just fine. But in hot button culture war cases, you have to know little except whether the president who appointed them had a D or an R next to his name. They barely even bother trying to hide it.
