Let’s start with the easy part. After Wednesday’s oral argument in United States v. Skrmetti, I’m certain the Court will rule that the Constitution’s Equal Protection clause, which bans sex discrimination, has no bearing on Tennessee’s law protecting minors from sex trait modification (what some call ‘gender-affirming care’). The Justices most likely to be in the majority, Chief Justice Roberts and Justice Kavanaugh, had no interest in courts becoming medical experts overseeing various experimental procedures under a Constitutional lens.
That’s a good sign, as far as it goes. But there were surprises.
Most of the arguments mirrored the classic urges of the Justices. An ultra-prepared Justice Alito quizzed the Biden administration on whether it believed its own outlandish statement that “overwhelming evidence” shows transgender surgeries “directly and substantially” improve the well-being of “transgender adolescents,” given that the Cass report directly debunks it. (Yes, they stand by it.)
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Justice Kavanaugh, always the diplomat, nodded to the “very forceful arguments” in favor of sex trait modification. (Sigh.) Justice Sotomayor made up that “only” 1% of kids experience regret after having their body parts removed. (Even the ACLU had to correct her that the figure was “as low as” 1% and applied post-puberty, and that at least 85% of trans-identifying minors have these regrets.) And Justice Jackson said this argument felt “familiar” to her because it paralleled bans on interracial marriage. (No, castrating minors and interracial marriage are not similar.)
But one thing was very different.
Justice Gorsuch didn’t speak. Like, not a word.
Now this would be odd in any scenario. Justice Gorsuch likes to press arguments and frankly have a conversation in the courtroom. But also, Justice Gorsuch is the reason this argument is here to begin with. As the author of Bostock v. Clayton County, Justice Gorsuch penned the decision that said discrimination based on sex incorporated discrimination marginally related to sex, namely policies that affect trans-identifying people uniquely. That decision set off a firestorm of litigation asserting trans-identifying men’s rights to enter women’s locker rooms, sports, and have access to cross-sex hormones. Would he explain the limits or applicability of Bostock? Expand its reach? Silence.
The second surprise came in response to my hoped-for line of questioning. What happens to women’s sports? Justice Kavanaugh asked, if Tennessee’s law is subject to Constitutional scrutiny, as the ACLU and Biden administration want, “Would transgender athletes have a constitutional right, as you see it, to play in women’s and girls’ sports, notwithstanding the competitive fairness and safety issues that have been vocally raised?”
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I gasped at the response. The Biden administration said unequivocally that the Constitution’s demand of sex equality already prohibits women’s sports, unless women can give a sufficient justification. Biden’s lawyer simply shrugged that “cisgender women” can assert their rights in court. The ACLU agreed.
Not a single justice pounced from his or her chair and said, “Forcing women to assert their interests in court would be the end of women’s sports!!” But it would.
And that’s my concern. I’m not sure the Court grasped what it would mean to put a Constitutional lens over every policy that treats men and women equally, but not identically—the end of women’s sports, spaces, and privacy. Because even if women could win a lawsuit, what city volleyball league has the money to even try?
We can expect a protracted battle in the courts moving forward, as courts slowly start to wrestle with the sheer resources on the left to erase the reality of sex.