A huge win for sanity

In a decisive ruling, the Supreme Court ruled Wednesday that a ban on transgender treatments passed by the State of Tennessee does not violate the Equal Protection Clause of the U.S. Constitution. In the decision, the six conservative justices and the three liberal justices divided in a predictable pattern. To underscore the importance of the decision, the Opinion of the Court was written by Chief Justice John H. Roberts, Jr. himself.

Almost half of the states have passed some restrictions on transgender treatments for children and teens. Tennessee adopted its measure by a legislative supermajority in 2023, and legal challenges were immediately filed. Both sides knew that the case would eventually come before the Supreme Court. Yesterday, the court handed Tennessee a clear win. It was also a big win for moral sanity.

The crucial issue at stake came down to whether Tennessee’s law violates the Equal Protection Clause of the 14th Amendment. In the court’s opinion, Roberts argued the Tennessee law made two allowable distinctions. The first concerned age, since the law banned transgender treatments only for minors. The second concerned the law’s distinction between the rightful and wrongful use of hormonal therapies. The Tennessee law allows doctors to prescribe hormonal treatments when medically indicated, such as in cases of delayed or precocious pubertal development. What the law does not allow is the use of the same medications in way that is not consistent with the young person’s biological sex. Roberts stated clearly that neither ground raised the issue of heightened scrutiny that would expose a violation of the Equal Protection Clause. In other words, Tennessee has the right to ban transgender treatments for minors.

Transgender activists responded with expected fury, but they had to see this coming. The court’s ruling should provide significant incentive for other states to adopt similar legislation. We can only hope that state legislatures get the message.

When any decision of this magnitude is handed down, we should think soberly about what it would have meant if the decision had gone the other way. Put bluntly, a finding that the Tennessee law violated the Equal Protection Clause would have spelled disaster. Such a ruling would threaten or invalidate virtually any meaningful state restriction on hormonal and surgical treatments for minors who identify as transgender. In the majority opinion, Chief Justice Roberts declared openly that medical opinion on the matter raises significant questions about whether such “treatments” harm or heal. On such a question, the Supreme Court should grant states “wide discretion to pass legislation in areas where there is medical and scientific uncertainty,” citing a precedent from 2007.

After finding that the Tennessee law was not unconstitutional, Roberts said the court should return the question “to the people, their elected representatives, and the democratic process.”

By any measure, this is an important decision, and it will be warmly welcomed by conservatives and lamented by progressives. The cheers and curses will erupt in an entirely predictable pattern. But a close look at the majority opinion reveals that transgender ideology is still deeply engrained in the court’s thinking.

The most glaring evidence of this fact comes in the fact that terms like “transgender minors,” “transgender boy,” and “transgender girl” appear in the majority opinion and in the liberal dissents. This language is not neutral. It acknowledges a central claim of transgender activists and gender ideologues. The appearance of this language is incredibly revealing—and troubling.

On the other hand, the concurring opinion by Justice Clarence Thomas offered a resounding denunciation of the false regime of supposed experts. LGBTQ activists and their attorneys cited the judgments of medical and psychological “experts” in support of their cause, calling down the authority of major medical associations, for example. Justice Thomas addressed their authority head-on: “In politically contentious debates over matters shrouded in scientific uncertainty, courts should not assume that self-described experts are correct.”

He wasn’t finished. Speaking of the medical societies, Thomas thundered that the groups “have surreptitiously compromised their medical recommendations to achieve political ends.” That is precisely what they have done. In closing his opinion, Justice Thomas quoted himself from an earlier decision, declaring: [E]xperts and elites have been wrong before—and they may prove to be wrong again.”

I simply respond in appreciation by saying that Justice Thomas has been right before—and he will be right again.

The decision handed down yesterday, known as United States v. Skrmetti, sets the stage for cases yet to come, and they will surely come. The division among the justices underscores the importance of presidential elections. The law in Tennessee reminds us of the importance of state elections. The scandal in all this is not the law in Tennessee. The scandal is that so many other states are adamantly on the wrong side of the issue. The decision reminds us all of what is stake, and of battles yet to come.