The Supreme Court’s Anti-Trans Decision Will Live in Infamy

The Supreme Court, by a vote of 6–3, upheld a Tennessee law banning gender affirming care to minors on Wednesday. The case, called US v. Skrmetti, involves a Tennessee law known as “SB1.” The law essentially seeks to eradicate a class of transgender individuals by denying them hormone and puberty blockers when they hit puberty, but the Republicans on the court ruled that such viciousness is not discrimination. The Tennessee law explicitly prohibits the prescription of medicine based on the gender identity of the patient asking for it, but the Republicans on the court ruled that such bigotry is not discrimination. 

In other words, in order to greenlight discrimination against trans children, the Supreme Court’s conservative supermajority ruled that the Equal Protection Clause does not apply to all people, equally.

To achieve his desired results, Chief Justice John Roberts, who wrote the majority opinion, used one of the oldest legal tricks in the white man’s book. He reanimated the should-be-dead idea that treating people “the same” is the same as treating people “equally.” He said that the Tennessee law doesn’t discriminate on the basis of sex, because cis and trans kids are prevented from doing the same thing: taking hormone blockers or enhancements to treat gender dysphoria, gender identity disorder, or gender incongruence.

This is the fallacy that bigots fall back on every time, every time in the history of this country, when their discriminatory laws are challenged. White people and Black people have “the same” access to schools and swimming pools, albeit separate. Black people can’t play baseball against white people, but white teams have “the same” prohibition from playing Black teams. Jewish people have “the same” right to attend the Christmas celebration at school as Christians. Gay people can’t have a same-sex marriage, but neither can straight people, so how can that be unequal?

Of course, as with all the other historical examples, the minority being discriminated against is never actually being given “the same” rights as everybody else. The Tennessee law explicitly does not treat trans kids “the same” as other kids, nor does it treat both sexes at birth the same, because other kids can take hormones! If you are a “boy” who is too small to play football, you can take testosterone to help you make the tackle. But if you are a “girl” at birth, you cannot take the same medication, even if your reason for doing so is exactly the same. The legal test to get testosterone under Tennessee’s law is not “do you want to play football,” but “are you a boy according to Tennessee.” If yes, enjoy your drugs; if no, perhaps consider sewing instead. That is not equality—it’s facial discrimination based on gender at birth.

To get around this plainly obvious fact, Roberts says that the Tennessee law discriminates on the basis of age, and on the basis of your medical reason for wanting the treatment—which is lucky, because, according to him, both of those things are perfectly legal. Essentially, Roberts argues that the constitutional discrimination cancels out the unconstitutional discrimination:

SB1 prohibits healthcare providers from administering puberty blockers or hormones to minors for certain medical uses, regardless of a minor’s sex. While SB1’s prohibitions reference sex, the Court has never suggested that mere reference to sex is sufficient to trigger heightened scrutiny. [Emphasis in the original.]

This is the legal equivalent of saying, “Well, actually, the word means ‘a bundle of sticks’ so it’s not a slur.” If you’re, say, a Republican legislator looking to get a bigoted law past the Supreme Court, or a Supreme Court justice looking for a reason to sign off on a Republican legislator’s bigoted law, SB1 can be pitched as a purely medical statute, something akin to “you must be 18 to purchase cigarettes.” But in reality, everybody, including Roberts, knows that this law is not gender neutral, nor is it intended to be so. I promise you that if Tennessee passed a law saying “only people assigned as male at birth can buy cigarettes before they’re 18, because smoking looks cool on boys and they can’t get pregnant,” Roberts wouldn’t call it a “mere reference to sex.”

Roberts tries to pretend that he’s not tearing a hole in the Equal Protection Clause. He argues that states cannot avoid the clause by simply throwing up some nondiscriminatory reason for their plainly discriminatory law. He says that the law cannot be a “mere pretext for invidious sex discrimination.” And yet, he totally buys Tennessee’s pretextual, allegedly nondiscriminatory reason for SB1 as if it is freaking gospel. He writes:

The law does not prohibit certain medical treatments for minors of one sex while allowing those same treatments for minors of the opposite sex. SB1 prohibits healthcare providers from administering puberty blockers or hormones to any minor to treat gender dysphoria, gender identity disorder, or gender incongruence, regardless of the minor’s sex; it permits providers to administer puberty blockers and hormones to minors of any sex for other purposes.

The scientific term for Roberts’s writing here is “slop.” His reasoning functionally makes no sense in context with his admonition against pretextual laws. He is accepting the pretext, hook, line and sinker, while saying that the pretext is not enough. It’s poorly reasoned, poorly argued, and facially incoherent.

Indeed, it’s hard to imagine this kind of reasoning in any other context. There is a class of people who want a medically approved treatment, and Roberts is saying that they can’t have it based on why they want it, even if their doctors and their parents agree that they should have it. More than that, Roberts is saying that because the law is focused on preventing a specific class of people from accessing the drugs for their preferred reasons, the court can ignore the inherent discrimination in the law.