The Supreme Court Should Rule That Reality Exists

National Review Online

Thursday, December 05, 2024

 

In United States v. Skrmetti, which was argued Wednesday, the Supreme Court’s justices are asked to decide whether the 14th Amendment’s equal protection clause is violated by a Tennessee law that restricts the use of puberty blockers and hormones by minors.

 

To begin with the obvious, the 14th Amendment says nothing of the sort. The people who wrote and ratified the amendment at the noontide of the Victorian age would have been baffled by the claim that they were creating a constitutional right for children who are confused about their sex to take drugs that make irreversible changes to their bodies. If the Court takes seriously the original public meaning of the equal protection clause, this case is no contest.

 

Unlike Title VII of the Civil Rights Act of 1964, which was at issue in Bostock, the equal protection clause says nothing about sex discrimination. It has long been read to bar irrational distinctions on the basis of sex, for reasons similar to why it bars racial classifications. But while legal distinctions on the basis of race are irrational in all but a few very narrowly circumscribed situations, the courts have long recognized the commonsense reality that was obvious in 1868 and remains obvious to most Americans today: Sex differences are real. They have important consequences and never more so than in matters of biology, medicine, and reproduction. Humanity could not exist without those differences.

 

Legislatures draw distinctions between people and situations all the time. The Court usually asks whether these distinctions have a rational basis, a test most forgiving to lawmakers. The Court applies “strict scrutiny,” however, when a racial distinction is drawn, because of the presumptive irrationality of those classifications. In order to evaluate sex classifications, the Court invented “intermediate scrutiny,” a compromise between strict scrutiny and the rational-basis test. The test has no basis in the Constitution, but it aims to accommodate in practice the reality of sex differences, while banning sex discriminations that are not based on such differences.

 

The specific question before the Court in Skrmetti is whether intermediate scrutiny applies to a distinction between two treatments that use the same medications. The Biden administration and the individual challengers to the Tennessee law argue that it is sex discrimination to restrict gender-transition treatments but not identically restrict every other treatment using the same hormones or puberty blockers. The level-of-scrutiny question is front and center because lawyers naturally wish to have the standard for reviewing a law decided before applying that standard. But here, we think this asks the question backwards.

 

The equal-protection question always comes down to whether a distinction is rational. Strict scrutiny exists because racial distinctions are presumed to be irrational — because race is an artificial category that has often been abused. By contrast, to say that the intermediate-scrutiny test exists because sex differences are real is to decide this case, regardless of the label the Court applies. If boys becoming men is different from boys trying to become women, then the Tennessee law draws a rational distinction. If giving testosterone to boys has a different effect on their bodies than testosterone has on the bodies of girls, then the Tennessee law draws a rational distinction. The rest is semantics.

 

The confusion of semantics with reality was the error of Bostock v. Clayton County (2020), which collapsed reality into syllogism: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Justice Ketanji Brown Jackson tried the same maneuver here, arguing that sex discrimination happens just in asking whether the patient receiving testosterone is a boy or a girl, so therefore intermediate scrutiny must apply. Never mind that what it really means is that these are fundamentally different medical treatments, with different purposes, different intended effects, and different risks.

 

That is precisely what reality tells us, and the record in this case contains ample citation to scientific proof of it. Even Solicitor General Elizabeth Prelogar conceded that Tennessee could ban a drug that was useful only in sex transitioning, because then the state is regulating the treatment, not its purpose. Her semantic argument is that hormones and puberty blockers happen to be the same treatments that Tennessee permits to be used for other purposes, such as to suppress early puberty, and therefore it is sex discrimination to restrict their use for this purpose. This is medically nonsensical. Taking the same medicine to treat two different conditions is two different treatments, just as using a scalpel to remove a brain tumor is a different treatment than using a scalpel to perform a lobotomy. Different evidence is used to assess the effectiveness of the same hormone to accomplish different medical ends. That’s why the Food and Drug Administration’s regulatory regime often approves drugs only for some (on-label) uses and not for other (off-label) uses of the same substance. When Tennessee’s lawyer attempted to explain that the state has similar rules in its regulation of medicines, Jackson badgered him to stop.

 

Until very recently, the reality of sex difference was progressive orthodoxy. Feminists such as Ruth Bader Ginsburg once argued, for example, that abortion bans were sex discrimination because only women could get pregnant, so only women were affected by them. Now they must argue that it is sex discrimination to even acknowledge in the medical context that the same things may affect the male and female body differently.

 

The solicitor general and the individual challengers both argue as well that the Court should treat gender identity as a suspect class under the Constitution, which for the first time would designate transgender individuals as a distinct class sharing immutable characteristics. But this undermines the argument that there is no way to distinguish somebody who takes hormones for gender confusion rather than for another reason. And it similarly either dodges or begs the question of what treatments are proper for people so classified — the only thing regulated by the Tennessee law.

 

A ruling against Tennessee would require judges (whether the justices or lower courts) to delve deeply into the medical debate, weigh the risks and effectiveness of particular therapies, and decide what is the rational medical conclusion. Under the intermediate-scrutiny test, this would mean asking whether the line drawn by Tennessee furthers an important government interest and does so by means that are substantially related to that interest. This is a role without precedent, for which judges are poorly equipped and apt to fall back on their ideological predilections. As Chief Justice John Roberts noted, judges “are extraordinarily bereft of expertise” in second-guessing medical-treatment questions, much less doing so in a fast-moving field of medicine using the blunt instrument of a single clause in a 19th-century amendment. Legislatures, not courts, are the proper place to decide the outer limits of what experiments doctors may inflict on children, and to adjust those decisions over time on the basis of changing conditions. That’s what has been happening in European countries that have reconsidered these treatments.

 

The Biden administration has asked the Court to decide only the semantic question of the proper level of scrutiny and to dump the case back into the lap of a lower court. But as Justice Brett Kavanaugh noted, if that happens, “we’ll be back here in a year.” The better course is for the Court to recognize reality. Sex differences are real. Children suffering gender dysphoria are differently situated from those who are not, and it is not irrational at an unconstitutional level to tailor safeguards on their treatment accordingly. Nor is it irrational for the government to determine that treatment of gender-dysphoric minors by puberty blockers and hormones has such serious risks and drawbacks compared with its putative benefits that those treatments ought to be regulated or even banned. States make such health and safety judgments all the time. The justices should have the courage and good sense to say as much.