It’s hard to imagine a worse time for a Supreme Court hearing United States v. SkrmettiArguably the most important trans rights case the justices have ever heard. I screamed The Court has never answered that question, asking whether discrimination against transgender people could violate the Constitution.
In a decision against the trans plaintiffs I screamedMoreover, it could potentially elevate the entire legal framework protecting Americans from all forms of gender discrimination.
A court is planning to hold a 6-3 Republican supermajority hearing I screamed In early December, less than a month after an election in which, according to the Washington Post, the GOP campaign “spent at least $215 million in network ads that paint trans people as a threat to society.” said President-elect Donald Trump Anti-trans rhetoric is a key part of his campaignPromises, for example, that if elected, he would “keep transgender insanity out of our schools, and we’ll keep men out of women’s sports.”
That is: The case comes at a time when the Republican Party is hostile to transgender people. And, while there are strong legal arguments supporting the position in favor of trans rights I screamedThis panel of justices has shown great respect for the general mood of the Republican Party in past decisions, such as when they ruled that Trump could use his official presidential powers to commit crimes after returning to office. If the court’s Republican majority is determined to reach an anti-trans result, they likely won’t let something as trivial as “the law” dissuade them.
Still, at least two Republicans on the court have shown unexpected sympathy for LGBTQ litigants in the past. In Bostock v. Clayton County (2020), the Court ruled that the long-standing ban on gender discrimination in employment prohibits discrimination on the basis of sexual orientation and gender identity—declaring that “it is impossible to discriminate against a person on the basis of being gay or transgender without discriminating against him on the basis of sex.”
Bostock Justice Neil Gorsuch, a Trump appointee, wrote, and was joined by Chief Justice John Roberts, also a Republican. So, if Roberts and Gorsuch hold the views they express BostockThe two of them plus three Democratic justices should be enough to extend at least some constitutional protections to trans people.
What is at stake? I screamed?
Specific problems in I screamed A law in Tennessee prohibits trans youth from receiving treatments such as puberty blockers and hormone therapy. About half of the states have laws targeting transgender health care, but Tennessee is the strictest.
Although the Court has never specifically said that discrimination against transgender people violates the Constitution, it has long held that gender discrimination violates the Constitution, ruling that “All gender based categoriespresumptively unconstitutional United States v. Virginia (1996).
Tennessee’s law trips over itself to classify young patients based on their gender. It declares that the purpose of the Act is “encourage[e] Minors to appreciate their sex” and so that young people would not be “ignored of their sex.” The law denies certain treatments to patients based solely on their sex. A patient who was assigned male at birth may have testosterone prescribed by a doctor, but at birth a The woman may not have that treatment.
The Supreme Court has already said that all Gender-based classification is constitutionally questionable. “All” means “all”.
Will it be enough to convince these justices to strike down Tennessee’s law? The honest answer is, “Who knows?” It is not like legal text and Supreme Court precedents play no role in the decision-making of these judges, and they sometimes do. Bostock That cuts strongly against the policy preferences of the Republican Party.
But there are two reasons to be pessimistic I screamed. One is that after the recent election, anti-trans voices are likely to be emboldened within the court, and pro-trans voices may feel that they have limited political capital. The other is that, even though Tennessee’s laws clearly discriminate on the basis of sex, the Court has only held that such laws should be held unconstitutional unless—as the Court referred to it. Virginia – There is a “highly persuasive justification” for the law.
It’s possible that this court’s ban on trans health care will match this bar.
What current law says about “gender” discrimination, explained
Many of the key federal law protections against gender discrimination emerged in the 1960s and 1970s. In the early 60s, Congress began passing laws prohibiting sex discrimination in various areas — Title VII of the Civil Rights Act of 1964, for example, prohibited such discrimination in employment. Then, in the 1970s, courts began to place constitutional limits on the government’s ability to discriminate on the basis of sex.
Most notably in this case, Craig v. Boren (1976), established that any government action that classifies people based on sex is presumptively unconstitutional. Again, between Virginia, The Court held that “a party seeking to uphold government action based on sex must be a ‘Very persuasive justification‘ for classification.
A federal appeals court held that hearing I screamed Try to get closer Craig And Virginia Referring to the Supreme Court judgment Patient v. came (1974). But that decision has been made the patient very broadly.
In summary, the patient A state-run insurance program that provides benefits to California workers with certain disabilities, but not those whose disabilities are caused by pregnancy. The Supreme Court rejected the argument that the exclusion for pregnant workers discriminated on the basis of sex, although the court wrote that “only women can be pregnant.”
the patientIt should be noted, not a particularly favorite decision. Four years after its passage, Congress enacted the Act Pregnancy Discrimination Actwhich is rejected the patient Prohibits employers from discriminating on the basis of pregnancy in the workplace. regardless, the patientIts holdings were limited. It established that governments could establish public benefit programs that exclude medical procedures.”That can only be tolerated in one sex“
I screamedIn contrast, treatment involves procedures that both sexes can undergo. Anyone can take puberty blockers, testosterone or estrogen. Just as it is physically impossible for a man without a uterus to become pregnant, it is not physically impossible to administer testosterone to a woman determined at birth.
Not all gender discrimination is prohibited
Following the court ruling Craig And VirginiaIt should be clear that Tennessee’s law discriminates based on sex and thus can only be sustained if the state can provide a “very persuasive justification” for it. Indeed, if the Court were to reject this conclusion, it would do considerable violence to the legal principles governing all gender discrimination cases.
Even though the court awarded it Craig/Virginia framework, Tennessee’s law could potentially survive if five of the justices find the state’s arguments in favor of the law sufficiently persuasive.
Brief description I screamed Two different pictures are drawn as to why medical professionals treat transgender patients with puberty blockers or hormones. A The brief was filed by the Biden administrationFor example, warns that the absence of this treatment can lead to patients with gender dysphoria (the medical term for the distress that occurs when someone’s gender identity does not match the sex they were assigned at birth) “‘weakness’, ‘depression,’ substance use,’ ‘self-harming behavior’ and ‘even suicide.’ Survey The summary noted that more than one-third of transgender high school students had attempted suicide in the past 12 months.
This view, which presents gender-affirming treatment as a way to prevent suicide and reduce the harm of gender dysphoria, is supported by briefs filed by medical and mental health groups such as American Psychological Associationthe American Academy of Pediatrics, World Professional Association for Transgender Health (WPATH), and American Medical Association — among other, similar professional organizations.
Abbreviation of TennesseeMeanwhile, presents a much more conspiratorial picture. At one point, for example, it claimed that a transgender official in the Biden administration pressured WPATH to issue inappropriately permissive guidelines about trans health care for physicians. At another point, it suggested that a major hospital in Tennessee began offering transgender health care because doing so would “make a lot of money” for the hospital.
Does Tennessee’s argument meet the threshold of “highly persuasive justification”? Note that the trial court hears I screamedThe court, the only one to closely examine the evidence on both sides of the case, temporarily blocked the Tennessee law during the case’s preliminary hearing. Of course, it’s possible that a full trial will reveal that Tennessee’s more conspiratorial view of the data is correct, but there’s good reason to suspect that all major professional organizations representing pediatricians, psychologists, trans health providers, and physicians generally make more money by overmedicating transgender children. Engaged in a grand conspiracy of earning.
There is some possibility that the court will give a break in this case
There is some possibility that the court will delay the resolution of this case, though probably not for too long.
In lower courts, lawyers for both the Biden administration and a group of transgender plaintiffs argued for a pro-trans position. After losing in the appeals court they both Department of Justice And Private plaintiff Ask the judges to hear their case. Although these two petitions presented similar questions, the court decided to grant only the Justice Department’s request to hear the case—which is why the case is now called United States v. Skrmetti.
So far, the court has not taken any action on the petition of the private plaintiffs, known as LW vs. Skrmetti.
Ordinarily, the court’s decision to grant one petition and not the other will not matter much. But it’s likely that the Trump administration will reverse the Justice Department’s position on the case after taking office in January and formally withdraw its request for justices to hear the case. That means the judges had to grant the case last January if they wanted to stay LW application
Realistically, none of these methodological strategies are likely to change much. It is possible that the court will delay oral arguments until these are resolved. But, want to solve the problem presented by the judges I screamedRegardless of how the procedural drama shakes out, there’s no reason why the court can’t decide the case during its current term (which could mean a decision by the end of June).
