UNITED STATES v SKRMETTI
The case reviewed whether the Tennessee Law (SB1), “Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity,” which bans certain medical <treatments> for transgender minors, violated the Equal Protection Clause of the 14th Amendment.
By a six-to-three majority, along party lines, the Supreme Court voted that it did not violate the Equal Protection Clause. Chief Justice Roberts wrote the majority opinion, while Sonia Sotomayor wrote the primary dissenting opinion.
The Tennessee law describes gender identity mismatch as a condition that can cause “discomfort and distress,” but this is not sufficient to allow medical experts to provide what Tennessee legislators describe as “experimental” and “risky” treatments to minors for the resolution of their issues. Tennessee says that such treatments are being performed with “rapidly increasing frequency” despite potentially harmful and irreversible effects, which they believe many children will regret having received later in life.
Tennessee notes that countries such as Sweden, Denmark, Finland, and the United Kingdom have all severely restricted transgender care for minors based on the concerning findings of multiple studies. Tennessee asserts that the US should follow suit and limit the use of these medical treatments, like these other countries have.
Tennessee says that this ban applies only to minor children who are seeking treatment due to issues related to their feeling that their gender mismatches the one they were assigned at birth. If a patient is not a minor, then they can receive treatment related to transgender concerns. If the person is a minor, they can receive treatment for non-transgender concerns, such as disabilities or precocious puberty.
Point #1: Sex Discrimination and Transgender People
In Chief Justice Roberts’ Opinion, he says of Transgender People: “This Court has not previously held that transgender individuals are a suspect or quasi-suspect class. This case, in any event, does not raise that question because SB1 does not classify based on transgender status.”
In a footnote within Justice Sotomayor’s dissent, she mentions Justice Alito’s stance on sex and gender. She says, “JUSTICE ALITO insists that the words ‘sex’ and ‘gender’ in our equal protection precedents refer to an ‘immutable characteristic determined solely by the accident of birth.’”
Later, Justice Sotomayor quotes the Oxford English Dictionary’s definition of what it means to be ‘trans’, “Transgender, when used as an adjective, means ‘a person whose sense of personal identity and gender does not correspond to that person’s sex at birth”
In the Chief Justice’s Opinion, he mentions that there are at least 1.6 million Americans who identify as transgender in America. Justice Alito’s assertion that sex is an immutable characteristic determined at birth is a rejection of the literal dictionary definition of what it means to be trans. It also means that people identifying as trans are ineligible for protection under the Equal Protection Clause because their identification does not exist.
Once you establish that your opinion is that ‘being trans’ is imaginary, then the rest of the debate is moot.
Point #2: Neutral Laws Do not Discriminate
The majority opinion asserts that the Tennessee law does not discriminate because it does not let anyone get care for ‘trans’ based reasons. Crudely put: A girl cannot get care to be a boy, and a boy cannot get care to be a girl.
In her dissent, Justice Sotomayor highlights two examples of neutral laws that show why this is a problem:
The first is Loving v. Virginia (1967):
This Supreme Court case established a federal prohibition on laws that banned interracial marriage. Justice Sotomayor notes that the construction of many interracial marriage bans was neutral. They would prohibit anyone from marrying outside their race and then argue that the law cannot be racist because it applies to all races. That was absurd and was struck down in 1967 for its obvious bad faith. Justice Sotomayor says, “A prohibition on interracial marriage, for example, allows no person to marry someone outside of <their> race, while allowing persons of any race to marry within their race.”
The second example Sotomayor uses is about religion.
She says, “Suppose Tennessee prohibited minors from attending ‘any services, rituals, or assemblies if done for the purpose of allowing the minor to identify with a purported identity inconsistent with the minor’s religion.’” No one would seriously dispute that such a rule classifies on the basis of religion. Whether the law prohibits a minor from attending any particular religious service turns on the minor’s religion: A Jewish child can visit a synagogue but not a church, while a Christian child can attend church but not the synagogue.”
Using neutral language to blur discriminatory laws is nothing new. After Reconstruction ended in the South, many states enacted Black Codes. These laws were blatant at first. They would say black people would have to do things to prove their value, whereas white people would not have to document themselves. For example, black people may have had to regularly provide proof of employment or carry paperwork with them if they were out past dark.
Over time, these laws were ruled unconstitutional. Rather than give up the fight, districts around the country pivoted from overt “Black Codes” to things like “Vagrancy Laws.” These laws would describe conditions in neutral language. Still, they would be crafted in a way to target mostly black residents. Since they could not explicitly exclude whites, some unfortunate whites could not segregate themselves sufficiently to avoid occasionally being the target of these laws intended for blacks.
This bled out onto the poorest whites, had advantages for lawmakers who could point to those arrests as evidence that their laws were about something other than racism. The people impacted were often the poorest whites in a community who did not have enough power, wealth, or influence to fight back, making them the perfect target to hide the intended racism.
Point #3: What do those other countries say about trans care?
Tennessee cited Sweden, Denmark, Finland, and the United Kingdom as countries that have cracked down on what it described as dangerous, experimental, and unproven care for transgender children. It should be the case that we can examine the laws of the four countries listed and identify those that have severe limitations on trans care.
SWEDEN:
Here is a quote from an article titled “Sweden: Parliament Approves New Acts Addressing Legal Gender and Medical Procedures Performed on Genitalia,” published by the Swedish Library of Congress on April 17, 2024:
“In a committee initiative introduced on April 4, 2024, the Parliament’s Committee on Health and Welfare proposed adopting a new Act on Determining Gender in Certain Cases and repealing its predecessor, the Act of 1972 on Determining Legal Gender in Certain Cases (also known as the 1972 Transgender Act). The initiative also proposed adopting a stand-alone law covering medical procedures performed to make a person’s genitalia conform to their gender identity. (Committee Initiative. Both acts are scheduled to take effect on July 1, 2025. The last time the 1972 Act was amended was in 2013, when the requirement that a person be sterilized before changing their gender was removed.”
The article continues: “A person who has turned 16 years of age may upon request have it established that the person has a different gender than that which appears in the National Registry when
- The person is registered as a resident in Sweden, is a Swedish citizen, has been a resident of Sweden, or is a non-resident Swedish citizen with a coordination number.
- The person is not a registered partner,
- The gender that appears in the National Registry does not conform with the person’s experienced gender identity, and
- It can be assumed that the person will live in this [new] gender identity for the foreseeable future. (2 § New Act on Determining Gender in Certain Cases, as proposed.)
Under the new law, requests by minors must be made by the minor’s legal guardian.”
DENMARK:
Denmark is not perfect, but the past 11 years show progress in the opposite direction of Tennessee and the US Supreme Court. According to Human Rights.DK: https://www.humanrights.dk/lgbt-barometer/timeline-and-legal-protection
- In 2014, Denmark made it easier for its people to change their gender identity on legal paperwork
- In 2016, they legalized transgender treatment for people under 18 (with parental approval)
- In 2017, they removed being transgender from their list of mental conditions
- In 2019, Denmark opened the Centre for Gender Identity, a government-funded facility to aid its transgender residents
- In 2022, Denmark extended its discrimination ban to include gender identity, gender characteristics, and sex characteristics
- In 2023, people under 18 were legally allowed to change their sex identification on documents
FINLAND:
According to an article from 2023 titled, “Finland: New gender recognition law ‘a significant step towards protecting trans rights’ https://www.amnesty.org/en/latest/news/2023/02/finland-new-gender-recognition-law-a-major-step-towards-protecting-trans-rights/#:~:text=In%202017%2C%20the%20Finnish%20trans,and%20respectful%20of%20human%20rights.
The article says:
“The passing of legislation in Finland that abolishes the harmful requirements for trans people to endure invasive medical and psychiatric procedures before they can have their gender recognized is a major victory for equality, Amnesty International said today.
The new law, passed by 113 votes to 69, removes the requirement for trans people to be sterilized and obtain a psychiatric diagnosis for them to obtain legal gender recognition.
“By passing this act, Finland has taken a major step towards protecting trans people’s rights and improving their lives and right to self-determination,” said Matti Pihlajamaa, Amnesty International Finland’s LGBTI Rights Advisor.
The article continues…
Despite this significant advancement, however, the new act only introduces a legal gender recognition system for adults. “While this new law will have a huge and positive impact and provide an important pillar for non-discrimination, more must still be done,” said Matti Pihlajamaa. “Excluding children from legal gender recognition violates the UN Convention on the Rights of the Child. We will continue to call on the government to amend the legislation accordingly to ensure it advances the rights of children.”
Finland has a ways to go. The study produced in Finland, which Tennessee lawmakers and the Supreme Court cited, actually shows the opposite of what they claim. They claim that suicide rates climb amongst people receiving care, whereas the study indicates it falls by as much as 300%. There is an excellent breakdown of the misuse of the findings at erininthemorning.com, which I will link in the show notes: https://www.erininthemorning.com/p/fact-checked-new-problematic-finnish
UNITED KINGDOM:
England is the one country on the list that is moving in a restrictive direction on transgender care. According to the Associated Press, in an article from 2024:
“England, through rules put forth by its public health system, is limiting the ability of people younger than 16 to begin a medical gender transition.
“The National Health Service England recently cemented a policy first issued on an interim basis almost a year ago that sets a minimum age at which puberty blockers can be started, along with other requirements. NHS England says there is not enough evidence about their long-term effects, including “sexual, cognitive or broader developmental outcomes.”
“Starting April 1, NHS England will not prescribe puberty blockers — drugs that suppress sex hormones during puberty — as a “routine treatment” to children and other young people seeking gender transitions. In practice, the decision also applies to Wales, which does not have any NHS gender clinics for children. Northern Ireland says it will adopt England’s policy; Scotland is weighing it.
“But it’s not a blanket, nationwide restriction. NHS England is just one health provider in the country, albeit a major one.
“Puberty blockers are available for a cost at a few private clinics. And young people already taking them through the NHS — fewer than 100 in England, according to the BBC — can continue. The drugs will also be available to participants in clinical trials.
“Britain’s Conservative government, which has been broadly critical of youth gender transitions, welcomed the NHS England decision. Even so, a proposal in Parliament to flatly make it illegal to provide puberty blockers to those under 16 is unlikely to become law.”
The UK says that its policy decision is in line with its closest ally, the United States, in its policy direction on transgender care for minors. For the US Supreme Court to cite the UK as an example of increasingly restrictive care being appropriate is a case of the snake eating its tail. We are driving the direction they are going and then claiming the direction they are going is a justification for the direction we are driving.
Point #4: One Day, Everyone Will Have Always Been Against This
I labeled this point with the title of a book released in 2024. The book is about our ability to keep the horrific outcomes of our government’s policies out of sight. The disaster is over there, and we are safe here. To quote Rage Against the Machine from 1999, “Listen to the fascist sing ‘Take hope here, war is elsewhere. You were chosen; this is God’s land. Soon we will be free of blot and mixture. Seeds planted by our Forefathers’ hand.”
The book title is a nod to what happened after the Iraq and Afghanistan wars that America started and then could not easily find a way out of. When the AUMF (Authorization for the Use of Military Force) was passed, only one politician, Barbara Lee, voted against it. As the months and years piled up, disasters and misery stemming from that vote led more and more politicians to claim they had nothing to do with the decision and had always been opposed to it. One day, everyone who voted for the AUMF had always been against it. Someday, everyone who hates trans people will have always supported them.
Justice Sotomayor’s conclusion to her dissent in Skrmetti quoted in full:
“This case presents an easy question: Whether SB1’s ban on certain medications, applicable only if used in a manner “inconsistent with… sex,” contains a sex classification. Because sex determines access to the covered medications, it clearly does. Yet the majority refuses to call a spade a spade. Instead, it obfuscates a sex classification that is plain on the face of this statute, all to avoid the mere possibility that a different court could strike down SB1, or categorical healthcare bans like it. The Court’s willingness to do so here does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight. It also authorizes, without a second thought, untold harm to transgender children and the parents and families who love them. Because there is no constitutional justification for that result, I dissent.”
My only quibble with Justice Sotomayor’s concluding paragraph is that she limits her claim of damage to the Equal Protection Clause to sex discrimination. The majority’s logic is a blow to the rights of transgender people for sure. But it also opens the door to neutral-language discrimination for other reasons as well.
In the 2022 case, Dobbs v. Jackson Women’s Health, Justice Clarence Thomas called for the Supreme Court to reconsider its substantive due process precedents. In his concurrence in Dobbs, he mentioned several previous decisions, such as:
- Griswold v Connecticut, which said that the state could not ban married couples from using contraception and established a “right to privacy.”
- Lawrence v Texas, which said that a state cannot criminalize “homosexual” acts between consenting adults. Once again, this outcome guaranteed a “right to privacy” for same sex, or non-standard, couples’
- Obergefell v Hodges guaranteed the civil right to marriage to all consenting adult couples, regardless of gender. States cannot discriminate on the basis of sex when it comes to allowing couples to marry
Justice Thomas’s position on substantive due process is that the 14th Amendment only applies to situations where the government is trying to directly deprive you of your life, your freedom, or your property. The application of substantive due process is the idea that quality of life, liberty, and property are within the jurisdiction of the court.
Using the example of same-sex marriage, you may have your life and your freedom, but the state significantly impacts your quality of life if you cannot live your life married to the person you love. This substantive claim about the quality of life puts same-sex marriage within the court’s purview to rule on. Justice Thomas thinks that this goes too far.
It is noteworthy that Justice Thomas managed to miss a substantive due process case in his list of ones to be re-reviewed. He does not mention Loving v. Virginia, which made it unconstitutional for a state to ban interracial marriage. Thomas, who is black, is married to Ginny Thomas, who is white.
Clarence Thomas and his wife, Ginni, were married in 1987 in Omaha, Nebraska. Nebraska repealed its ban on interracial marriage in 1963, four years before Loving v Virginia was decided. Ginni Thomas, who is from Nebraska, was six years old when it became legal in her home state for her to marry her future husband. Clarence Thomas was 15 when Nebraska repealed its interracial marriage ban. It is easy to see why Loving v. Virginia, which applies directly to them, is not on Thomas’s list of cases to be re-reviewed.
None of this is to say I know what is right on transgender care for children. I am not a doctor, not trans, and not any more or less of an expert than the nine Justices. Despite the majority’s words, their decision is based on a desire to discriminate rather than a thorough assessment of the science.
Their political program requires ‘others’ to be against. Without an ‘Other’ to fear, people might start to look at the real causes of their misery. People might begin to make unreasonable demands, such as addressing wealth inequality and improving workers’ rights. They might go completely crazy and demand universal healthcare.
A century ago, a popular boogeyman was “The Brute.” The Brutes were hulking black men, depicted as hideous, terrifying predators who target helpless victims, especially white women. The purpose of this caricature was to entrench the idea that blacks could not be trusted to enter any space where whites were because they were so out of control and antisocial that they could not behave.
The caricature was anti-woman as well. It proposed that white women would lose all their senses around these brutes. Only the noble white man stood between a sane society and the chaos that these black men and white women would cause if we did not stop their simple minds from letting things get out of control.
Today, “The Brute” archetype is alive and well in the caricature of the “Trans athlete.” The description of the trans athlete is familiar to anyone who has studied the racism of the late 19th and early 20th century. Like the black brutes of yesteryear, they are hulking beasts gone out of control in our polite society. They enter spaces where they put delicate and precious white women and girls at risk. Those poor defenseless white women’s only protection is the white man who created “western civilization” and must save their women once more from this new brute.
It is essential to recognize that the discrimination against trans people is just the same old tired tropes, racism repurposed for use in terms of the latest boogeyman. It is also critical that when the Supreme Court aligns itself with programs of hate, it, too, reinforces its long-established role in the process of demonizing the other and keeping down the disenfranchised.
In 1857, the Supreme Court rejected Dred Scott’s appeal for his freedom because his blackness meant that he was not now, nor could he ever be, a citizen. As such, he had no right to liberty, speech, to hold public office, or to any other rights afforded to people as citizens. Scott’s owners possessed him while they were living in Illinois and Wisconsin, which were free territories of the United States. Despite being in free lands, his freedom was denied.
The Supreme Court did not overturn the Dred Scott decision, even after its disastrous consequences became apparent; it was a direct cause of the Civil War. The Dred Scott decision was reversed by the North’s victory in the Civil War and the passage of the 13th and 14th amendments, which guaranteed citizenship to all persons born or naturalized in the United States. Skrmetti is one front in the assault on that victory by people who want to go back to a time when they could deny the humanity of people and own slaves.
The Skrmetti decision creates a pathway to reinstitute the Dred Scott decision. This Supreme Court is proving that their regret was the outcome of the Civil War and not their court’s legacy of Dred Scott. Skrmetti makes it explicit that this court does not believe all people living in the US should have the fundamental rights afforded to citizens or even human beings.
Skrmetti creates a template to reject American citizens’ guaranteed protection under the 14th Amendment. If you can explain away their identity as illegitimate, then you can say that the due process clause of the 14th Amendment does not apply. Being “transgender” is not real; therefore, you have no claim to due process through the 14th Amendment if you are transgender. So long as your other identities are not harmed, then your claim is invalid. I believe that one day, everyone will claim they have always been against this program of hate. They will reject this when it becomes too unseemly to be associated with, as they lie about their record to try to stay in office. They will move on to the next group of vulnerable people whom it is acceptable to hate and demagogue. At the same time, they will claim they were never part of the last campaign of hate that hurt at least 1.6 million transgender Americans.
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