Comment: Ruling on gender-affirming care flawed, cruel

By Erwin Chemerinsky / Los Angeles Times

The Supreme Court’s decision upholding a Tennessee ban on gender-affirming care for transgender youth is a tragic abdication of the judiciary’s responsibility to protect minorities.

In 1937, in United States vs. Carolene Products, the court famously explained that while courts usually should defer to the political process, deference is unwarranted when there is discrimination against “discrete and insular minorities,” groups that are unlikely to be able to protect themselves against discrimination. Transgender youth are obviously such a minority, but the Supreme Court, in a 6-3 ruling divided along ideological lines, abandoned them.

The issue before the Supreme Court was whether Tennessee may prohibit puberty blocking hormones from being administered to transgender teenagers. Twenty-six states, all with Republican-controlled state legislatures, have banned gender-affirming care for minors. It is estimated that there are 110,000 transgender individuals in these states who will be prevented from having the medical care that they, their parents and their doctors want administered.

Chief Justice John Roberts, writing for the majority in United States vs. Skrmetti, stressed the need for the court to defer to the judgment of the Tennessee Legislature. He concluded his opinion by saying the issue is left “to the people, their elected representatives, and the democratic process.” Likewise, Justice Clarence Thomas, in a concurring opinion, said: “Deference to legislatures, not experts, is particularly critical here.”

But such deference is inappropriate and unwarranted under Supreme Court precedents when a law burdens a group that has been historically subjected to discrimination. Such discrimination is present in this case in two ways.

First, the Tennessee law discriminates on the basis of sex. Roberts’ majority opinion contends that denying the medical care doesn’t amount to sex discrimination because all children are prohibited from receiving gender affirming care. But this ignores that the law allows certain hormones to be given to boys and not girls, and vice versa. That, by definition, is sex discrimination.

Justice Sonia Sotomayor explained it this way in her dissenting opinion: “Sex determines access to the covered medication. Physicians in Tennessee can prescribe hormones and puberty blockers to help a male child, but not a female child, look more like a boy; and to help a female child, but not a male child, look more like a girl.”

Second, the law discriminates against transgender youth. Roberts rejects this as well, saying the law “does not classify on the basis of transgender status.” But that is exactly what the law does: It singles out transgender youth and bars them from receiving certain medical care.

In justifying the majority’s conclusion, the court relies on one of the most ridiculed decisions in history.

Geduldig vs. Aiello (1974) held that excluding pregnancy, and only pregnancy, from disability coverage was not sex discrimination. The decision said there are two categories of people: non-pregnant persons and pregnant persons, and because women are in both categories discrimination based on pregnancy is not sex discrimination. As Justice Ruth Bader Ginsburg later remarked, Geduldig was “egregiously wrong”: “pregnancy discrimination is inevitably sex discrimination.”

Roberts’ logic works this way: There are those who would use the hormonal treatment for gender-affirming care, which is prohibited by the Tennessee law, and those who would use the hormonal treatment for other purposes, which is allowed. Because transgender individuals can be in both groups, there is no discrimination against them.

But of course this ignores that the entire purpose of the law is prohibiting medical treatments that doctors, parents and transgender youth believe is appropriate. It also leads to absurd conclusions, as Sotomayor noted: The court’s approach would mean that “a law depriving all individuals who ‘have ever, or may someday, menstruate’ of access to health insurance would be sex neutral merely because not all women menstruate.”

By ignoring the discrimination inherent in the Tennessee law, the court avoided applying heightened scrutiny to the case. If that level of scrutiny had been applied, it would not have been possible to merely defer to the Tennessee Legislature. The court would have had to address whether the medical care prohibitions were justified, as did the federal district court in this case. The lower court, looking carefully at the evidence, found that the overall weight of authority supports gender-affirming care for transgender youth.

The human costs of upholding state laws prohibiting gender-affirming care will be enormous. As Sotomayor noted, “Tragically, studies suggest that as many as one-third of transgender high school students attempt suicide in any given year.” She added: “By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims.”

The implications extend beyond the prohibitions in Tennessee and other states against gender affirming care. The Trump administration has barred transgender individuals from serving in the military without providing the slightest basis for its action other than prejudice. It also is aggressively seeking to end federal support for gender affirming care for patients of all ages. The Supreme Court’s Skrmetti decision suggests its willingness to uphold such actions.

Sadly, the conservative justices took sides in the culture wars and in doing so abandoned both long-standing constitutional principles and transgender individuals.