I cannot begin to imagine the pain of feeling that your body does not match your gender. I cannot imagine the pain of parenting a child in such distress. Americans should feel immense sympathy for individuals in those circumstances, and we should feel an urgent necessity to treat children’s pain in the safest and most effective way possible.
We should not, however, require states to permit treatments of dubious effectiveness, especially when those treatments carry risks of serious side effects. But that’s exactly what the plaintiffs are requesting in United States v. Skrmetti, a case argued Wednesday at the Supreme Court that challenges Tennessee’s ban on “medical procedures” that permit “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.” This ban includes the use of puberty blockers and cross-sex hormones. It does not apply to adults.
A bit of legal background is necessary to understand the full constitutional ramifications of this case. U.S. law recognizes several important differences between children and adults, and one of the chief differences is that minors are deemed incapable of granting informed consent to medical procedures. They’re too young to understand the risks and rewards, and too susceptible to adult influence to be independent thinkers.
Typically, this means that parents step in as proxies. Parents are the ones who consent to medical treatments for their children, and they’re the ones who sometimes make life-or-death decisions regarding the welfare of their children. But parental authority is not absolute, including when it comes to deciding which treatments are available.
Parents can’t dictate the approval or availability of any given drug. They can’t require hospitals to provide specific surgical services. And states still exercise oversight of child welfare. In Tennessee, for example, a child can’t get a tattoo even with parental permission (except to cover up an existing tattoo).
The decision to approve any given drug for public use is typically made by the political branches of the government. At the federal level, the Food and Drug Administration — an executive agency authorized by Congress — governs the process, and, as the Court of Appeals for the 6th Circuit explained in its own ruling in this case, “the Constitution rarely has a say over the FDA’s work.”
As long as the government’s choice is deemed “rational,” it’s permitted, and then the recourse is to politics, not the courts, to change the government’s decision. To pass the test, the state has to show only that the law advances a legitimate state interest and that there is a rational connection between the law’s means and its goals.
This “rational basis” test requires broad deference to the legislature. It’s the default standard for reviewing a governmental action, unless that action implicates a constitutional right (such as the right to free speech or due process) or is aimed at a protected class of Americans, such as laws that draw distinctions on the basis of race or national origin.
And when you survey the state of the science regarding gender-affirming care for minors, it’s clear that Tennessee’s law passes that legal test.
Perhaps the single most consequential and rigorous examination of the safety and efficacy of gender-affirming medical interventions is the Cass Review, a comprehensive survey by Dr. Hilary Cass of research on gender-affirming medical treatments for minors. Britain’s National Health Service commissioned the review to make recommendations on how to improve NHS gender identity services and to make sure that children experiencing gender dysphoria experience a “high standard of care.”
Cass described the field of study as “an area of remarkably weak evidence.” Even worse, “the results of studies are exaggerated or misrepresented by people on all sides of the debate to support their viewpoint.” Her conclusion was sobering: “The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress.”
The report also highlights the way in which the medical community typically takes a cautious approach to new medical interventions. But, as Cass argues, “Quite the reverse happened in the field of gender care for children. Based on a single Dutch study, which suggested that puberty blockers may improve psychological well-being for a narrowly defined group of children with gender incongruence, the practice spread at pace to other countries.”
There can be serious side effects to medical treatments. As the state of Tennessee contended in its brief to the court, “giving girls high doses of testosterone induces severe hyperandrogenism that can cause clitoromegaly, atrophy of the lining of the uterus and vagina, irreversible vocal cord changes, blood-cell disorders and increased risk of heart attack.”
In addition, “giving boys high doses of estrogen induces hyperestrogenemia, leading to a ‘very high risk of’ blood clots and increased risk of tumors, breast cancer, coronary artery disease, cerebrovascular disease, sexual dysfunction and gallstones.”
It is deeply unfortunate that the public debate over gender-affirming care for kids has been tainted by extreme intolerance. Researchers are often frightened to present results at odds with the desires and goals of at least some activists for transgender rights. A scientific consensus achieved through threats and intimidation is no consensus at all.
The plaintiffs challenging the ban argue that the Supreme Court should apply heightened scrutiny to the law — in other words, that the court should apply a standard different from the rational basis review applied by the court of appeals. Even as the Cass Review has undermined the rationale for medical interventions for minors, the plaintiffs want the state to have less discretion to limit access to gender-affirming care.
Their theory is that the Tennessee regulation isn’t a conventional medical regulation but rather a form of sex discrimination. As the solicitor general, Elizabeth Prelogar, argued Wednesday, the Tennessee law “regulates by drawing sex-based lines and declares that those lines are designed to encourage minors to appreciate their sex.”
“The law restricts medical care only when provided to induce physical effects inconsistent with birth sex,” she continued. “Someone assigned female at birth can’t receive medication to live as a male, but someone assigned male can.”
At first glance, the argument has some persuasive power. Sex differences do matter in the law, though it’s not aimed primarily at sex — it applies to boys and girls equally, after all, and it applies to puberty blockers that both boys and girls use — but at age instead. As James Blumstein, a law professor at Vanderbilt, wrote in an amicus brief defending Tennessee, “Age is often used as a proxy for maturity; states have great leeway in drawing age-based lines.” He rightly notes that “distinguishing between adults and minors is quite routine and surely rational” within the meaning of rational basis review.
The plaintiffs’ sex discrimination argument would have far more purchase if the Tennessee law applied to adults as well, but it does not. Adults in Tennessee still possess the full freedom to choose gender-affirming medical interventions, including both hormone treatment and surgery.
It would be a sad irony if the Supreme Court diminished the state’s ability to protect young people from potentially harmful medical treatments at the very moment when the efficacy of those treatments is subjected to an increasing amount of doubt. The risks of adverse side effects are quite plain and potentially severe. For example, a government expert admitted in a different case that puberty blockers can diminish fertility in adult patients, even after an adult has stopped their use.
My heart breaks for those families confronting childhood gender dysphoria, and the hatred and discrimination we’ve all seen directed against the transgender community is repugnant. There is no excuse for animosity and malice in American law. We just ended an election during which the Trump campaign spent millions in ads designed to inflame the voting public against transgender Americans.
But attempting to protect children against the lifelong consequences of medical treatments administered before they’re old enough to fully understand the risks isn’t malicious. It’s a traditional function of American government.
I encourage everyone to read the lower court decision in the case. The Court of Appeals for the 6th Circuit thoughtfully wrestled with the complexities of the case and reached a conclusion that the Tennessee law is constitutional. It is a reasonable response to an extraordinarily vexing medical dilemma.
In the words of Jeffrey Sutton, the chief judge of the circuit and the author of the majority opinion, “This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two. Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments.”
That’s exactly right, and in the face of this uncertainty, judicial humility should prevail. Tennessee has taken one approach. Other states have reached different conclusions. The debate about treating childhood gender dysphoria should be resolved through careful study and cautious treatment — and by preserving federalism. Tennessee’s law is entitled to judicial respect.
Again, Sutton is correct. This, he writes, is “precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social and policy challenges.”