Legal Docket: Parental rights, medical ethics, and transgender policies

MARY REICHARD, HOST: It’s The World and Everything in It for this 9th day of December, 2024. We’re so glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

We’re now into our Year-End Giving Drive and over the next several days we’re asking you to think about what this daily program means to you and then try to put a dollar value on that. We don’t charge for this program but remember the weird acronym TANSTAAFL, stands for, “there ain’t no such thing as a free lunch” an immutable fact of economic life.

There are no free breakfasts, either, but that ruins the acronym. Point is, we don’t charge, but that doesn’t mean this is free. It costs a great deal to put out journalism of this kind and to do it at this level day in, day out and we rely on your support.

So we ask you to make your own economic calculation how much is this “free” breakfast worth to you? And you can weigh in with your answer at WNG.org/Year End Gift.

REICHARD: And thanks so much for your support. It does keep us going.

Again, WNG.org/Year End Gift …

It’s time for Legal Docket.

AUDIO: It is one of the great deceptions of our time to teach children that they might have been born in the wrong body. Affirming care would be to tell our children that they are beautiful just as they are.

That was the scene outside the Supreme Court last week … as inside was the most-watched case of the term so far: United States versus Skrmetti.

The dispute is over a Tennessee law that protects children from medical treatments that try to change their bodies’ sexual characteristics.

The legal question? Whether those protections violate the 14th Amendment … the Equal Protection Clause. It’s a requirement that the government treat similarly situated people in the same way.

EICHER: And that’s the heart of the issue—whether these treatments are medical necessities: namely, puberty blockers, cross-sex hormones, and surgeries.

Or are they dangerous experiments?

Nearly half the states have similar laws. They argue they’re protecting children from risky, unproven interventions.

But challengers frame these laws as discriminatory and harmful.

The challengers are three teenagers with gender dysphoria, their parents, and a doctor, along with the Biden Administration.

The government position came from US Solicitor General Elizabeth Prelogar. She argued that Tennessee’s law discriminates on the basis of sex … and therefore violates the 14th Amendment:

PRELOGAR: You have this population of adolescents and there are documented, very essential benefits for a large number of them and maybe a small number that will regret this care just like any other medical care. But for the state to come in and just say across the board you can’t have the medication because of your birth sex, we don’t think that’s a tailored law.

REICHARD: She elaborated on what her clients object to specifically in the law known as S-B-one:

PRELOGAR: This case is about access to medications that have been safely prescribed for decades to treat many conditions, including gender dysphoria. But SB1 singles out and bans one particular use. ….It doesn't matter what parents decide is best for their children. It doesn't matter what patients would choose for themselves. And it doesn't matter if doctors believe this treatment is essential for individual patients. SB1 categorically bans treatment when and only when it's inconsistent with the patient's birth sex.

Prelogar argued that that is sex discrimination on its face. Flat out unconstitutional.

Justice Clarence Thomas pushed back:

THOMAS: Much of your opening statement …seemed to suggest that there's an outright ban on this treatment. But that's not the case. It's really for minors. So why isn't this simply a case of age classification when it comes to these treatments as opposed to a ban…

Prelogar disagreed and stuck to her assertion that it’s the classification by sex that makes the law discriminatory.

Arguing for Tennessee was Matthew Rice. He said the distinction is about medical purpose.

RICE: That is not sex discrimination. The challengers try to make the law seem sex-based this morning by using terms like "masculinizing" and "feminizing." But their arguments conflate fundamentally different treatments. Just as using morphine to manage pain differs from using it to assist suicide, using hormones and puberty blockers to address a physical condition is far different from using it to address psychological distress associated with one's body. The Equal Protection Clause does not require the states to blind themselves to medical reality or to treat unlike things the same, and it does not constitutionalize one side's view of a disputed medical question.

EICHER: The argument then turned to medical risks and international trends.

A main argument for Tennessee involved the irreversible effects of medical interventions for gender dysphoria—namely, infertility, reduced bone density, removal of healthy reproductive organs, among other things.

Justice Sonia Sotomayor sought to downplay the side effects:

SOTOMAYOR: Every medical treatment has a risk, even taking aspirin. .. The question is: Can you stop …one person of one sex from another sex from receiving that benefit? So, if the medical condition is unwanted hair by a nine-year-old boy who can receive estrogen for that because, at nine years old, if he has hair, he gets laughed at and picked on and his puberty is coming in too early, but a girl who has….unwanted breasts, or a boy at that age can get that drug, but the other can't, that's the sex-based difference. The medical condition is the same.

RICE: We don't agree.

SOTOMAYOR: But you're saying one sex is getting it and the other's not.

RICE: We do not agree that the medical condition is the same. We do not think that giving puberty blockers to a six-year-old that has started precocious puberty is the same medical treatment as giving it to a minor who wants to --to transition. Those --those are not the same medical treatment.

Meanwhile, Justice Brett Kavanaugh pointed to evolving perspectives on transgender treatment around the world.

KAVANAUGH: If it's evolving like that and changing and England's pulling back and Sweden's pulling back, it strikes me as, you know, a pretty heavy yellow light, if not red light, for this Court to come in, the nine of us, and to constitutionalize the whole area when the rest of the world or at least the people who --the countries that have been at the forefront of this are, you know, pumping the brakes on this kind of treatment because of concerns about the risks.

Prelogar contended that no other country has imposed an outright ban as Tennessee has.

Besides that, she said, the justices only need to decide a narrow question: Does this law classify people based on sex? Yes or no. If yes, she wins. If no, she doesn’t.

But on the other side, Rice for Tennessee pointed to the Cass Review from the UK. That scientific review found so-called gender medicine was based on shaky foundations, not scientific evidence. One oft-repeated claim is that without medical intervention, young people will kill themselves.

Justice Samuel Alito had a question for the lawyer representing the families … Chase Strangio … a woman identifying and appearing as a man.

ALITO: Do you maintain that the procedures and medications in question reduce the risk of suicide?

REICHARD: Strangio said yes, and Alito bore down:

ALITO: Do you think that's clearly established? Do you think there's reason for disagreement about that?

STRANGIO: I do. I do think it is clearly established in the science and in -- in the record.

Justice Alito noted elsewhere in the argument that the petitioner’s brief only mentioned the Cass Review in a footnote. And yet:

ALITO: On page 195 of the Cass report, it says: There is no evidence that gender-affirmative treatments reduce suicide.

STRANGIO: What I think that is referring to is there is no evidence in some -- in the studies that this treatment reduces completed suicide.

… completed suicides in these situations being very rare … yet that admission shed light on overblown claims of suicide risk and presenting a stark and emotionally manipulative choice to get parents to go along: Do you want a dead son or a living daughter?

While the justices debated legal standards, personal stories loomed large outside the courtroom. One prominent voice included Chloe Cole, a young woman who detransitioned after taking testosterone at age 13, and going through a double mastectomy at 15.

She’s made the argument consistently: Here she is back in July, testifying before a House Judiciary subcommittee:

COLE: The drugs and surgeries changed my body but they did not and could not change the basic reality that I am and forever will be a female. …So what message do I want to bring to American teenagers and their families? I didn't need to be lied to. I needed compassion. I needed to be loved. I needed to be getting therapy to help me work through my issues. Not affirmed in my delusion that by transforming into a boy, it would solve all my problems. We need stop telling 12 year olds that they were born wrong. ….Puberty is a rite of passage to adulthood, not a disease to be mitigated. My childhood was ruined along with thousands of detransitioners that I know through our networks. This needs to stop. Enough children have already been victimized by this barbaric pseudoscience.

Another crucial legal question is deciding which level of scrutiny applies. Here are the choices:
First is rational-basis review. That’s the easiest standard for states to meet. Under that standard, a state merely has to demonstrate a reasonable purpose.

Then heightened scrutiny: That’s a little tougher and requires the demonstration of a compelling state interest.

Finally, strict scrutiny: That requires that a law meet both a compelling-state interest and be narrowly tailored to achieve its purpose.

EICHER: Something that would push the court toward strict scrutiny would be a finding that gender identity is considered an immutable characteristic. Under civil rights law, that term refers to an unchangeable human trait, like race, sex, or national origin. Civil rights are based upon immutable traits.

Given that, Justice Alito laid a trap:

ALITO: Does transgender status apply to individuals who are gender fluid?

Strangio answered it depends on whether a person’s sex aligns with his or her gender.
Because Strangio tried dodging the question, Justice Alito again bore down:

ALITO: Are there individuals who are born male … who at one point identify as female but then later come to identify as male, and, likewise, for individuals who are assigned female at birth, at some point identify as male but later come to identify as female? Are there not such people?

STRANGIO: There are such people. I agree with that, Justice Alito.

ALITO: So it’s not an immutable characteristic, is it?

Justice Kavanaugh also raised concerns about the implications for women’s sports. Recall that Kavanaugh has a personal interest here in that he coached his daughters’ basketball teams.

He directed this question to Solicitor General Prelogar:

KAVANAUGH: If you prevail here on the standard of review, what would that mean for women’s and girls’ sports in particular? Would transgender athletes have a constitutional right as you see it to play in women’s and girls’ sports, basketball, swimming, volleyball, track, etc, notwithstanding the competitive fairness and safety issues that have been vocally raised by some female athletes seen in the amicus brief of the many women athletes?

Prelogar deflected, saying that’s not the issue before the court.

But it did seem clear throughout that the justices are divided along ideological lines. The three liberals Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor seemed squarely in favor of striking down Tennessee’s law protecting minors.

But the majority six more conservative justices seem poised to uphold. Justices Thomas and Alito citing deference to state legislatures as one reason, aligned with their reasoning in the Dobbs decision that returned the matter of abortion to the states.

REICHARD: Much more is at stake than merely one state law. A decision here will affect parental rights, sports opportunities for females, medical authority, and protections for vulnerable young people.

And for Christians, the trans ideology pushed onto children is at odds with Creation and so it’s jarring to have the debate play out at the nation’s highest court.

And that’s this week’s Legal Docket!

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.