Contra SCOTUS on gender-affirming care
And a tangent about blue eyes
Azurization (n): The act of having one’s eyes replaced by eyes of another color (typically blue) via surgery.
It’s the year 2049. Eyes have become the focal point of beauty for pageants, influencers, and celebrities worldwide. Artistic contact lenses have become a trillion dollar industry, but the most wealthy and prestigious citizens of America prefer to change their eye color for real. This is normally done through a simple operation that uses an expensive and proprietary form of dye called DysoniteTM. This operation, however, is not available to everyone—and here begins the trouble.
Humans with the gene SNA67 cannot receive Dysonite without breaking into hives, spiking a fever, and then mysteriously dying from widespread organ failure within twenty-four hours. Such people must instead resort to azurization if they would like to change their eye colors. The process of azurization, though, has been hotly contested by various conservative groups in the country, especially one religious faction that has come to detest azurization as a blasphemy against God and the natural order.
Swayed by this faction, the state you live in, Tennessee, has banned azurization. The legislation does not mention God nor the natural order, but instead cites the potential dangers of the surgery and the “complete lack of benefit to either individual or society at large.”
Is this law unconstitutional? Does it discriminate against those with SNA67, or should it be considered non-discriminatory because the law bans this operation for everyone, regardless of gene or eye color?
Back to reality
I’m guessing there’s a good chance you already hold a strong opinion as to whether gender dysphoria is real and whether gender-affirming care is a good thing or a terrible thing. My own views will eventually become apparent, but my goal with this post is to explore the above question about constitutional law and its interesting subtleties rather than to debate medicine (which is well outside my wheelhouse1).
The majority opinion for United States v Skrmetti, decided two days ago, found that Tennessee (and 25 other states) could indeed ban all azurization gender-affirming care for humans with SNA67 gender-dysphoric minors.
Not being an expert on constitutional law, I had questions.
If you agree with the majority: Why does Sotomayor, in her dissent, spend so much time pulling on heartstrings rather than discussing particulars of the law?
Furthermore: The law banned these treatments for everyone, regardless of sex. Everyone being treated equally means no discrimination. Easy, right?
If you agree with the dissent: What kind of justification did the majority even come up with?
Furthermore: These are sex-based treatments, so clearly the law is discriminating based on sex. Right?
The first thing to note is that it’s not enough to be considered discriminatory if a law merely has a disproportionate impact on a particular class. If it was, then most laws would be unconstitutional, because people and groups of people are never perfectly equally impacted by changes (as Wikipedia states, “the Equal Protection Clause was not designed to guarantee equal outcomes, but rather equal opportunities”). To prove discrimination, you have to prove discriminatory intent.
In 1985, in a unanimous vote2, the Supreme Court struck down a part of Alabama’s 1901 constitution that would disenfranchise people who had committed certain misdemeanors, in a case called Hunter v. Underwood. The case was brought by appellees convicted of the misdemeanor of presenting a worthless check. Here we have a perfect analogy for an earlier question: The Alabama constitution applied to everyone with no mention of sex, race, or any other class of people. Yet it was still struck down. William Rehnquist, a conservative who would become the Chief Justice one year later, held that the constitution had been adopted with the purpose of disenfranchising blacks3.
So determining discrimination isn’t purely a matter of applying law; fact finding is required. This explains how the majority and dissent in United States v Skrmetti are able to differ so largely, and why Sotomayor spends the bulk of her dissent in describing the experiences of the boys and girls who seek these treatments.
But… when there’s debate as to whether discrimination is actually happening, how do we come to an answer?
This will of course vary depending on the case. But I think there’s a general rule of thumb that could be used as a starting point, to not act as proof, but as a good intuition:
Whether or not the law in question makes sense (i.e., is it preventing real harm?) can provide evidence as to discrimination.
This will often be a gray area (in our case, there is the question of how much these medical procedures risk harm).
When there’s a gray area, there are tradeoffs. When there are tradeoffs, a blanket ban probably isn't a logical solution. (If you were worried about the deleterious effects of alcohol, for instance, you’d be better of trying to restrict access to alcohol with certain eligibility requirements and some system of oversight, rather than a complete prohibition.)
If you believe that gender-affirming care is dangerous for minors, let me argue that this is at the very least a gray area because some research shows that gender-affirming care leads to better outcomes for minors4. And if this is a gray area, what would we expect a law that protects minors to look like?
It could require an evaluation before treatment can begin, which would be performed by doctors and require a disclosure of risks.
It could require informed consent from parents or guardians.
It could add minimum age requirements for surgeries.
It could create a department for oversight and data collection to ensure long-term outcomes improve.
In other words, it wouldn’t look like the Tennessee law—which provides a big hint that maybe SCOTUS got this one wrong.
Unless you have questions about the experience of having metastatic cancer, in which case, fire away.
It was an 8-0 decision, as the conservative Justice Powell refused to vote, writing to Rehnquist, “Please add at the end of the next draft of your opinion that I took no part in the consideration or decision of the above case.”
I’m actually brushing over the interesting twist at the heart of this case. Originally, the District Court found that racism was a key motive during the convention that adopted the Alabama constitution, and this was overturned by the Court of Appeals, which argued that racism could not be definitively determined, and that this part of the constitution (named § 182) may have been intended to be used to disenfranchise not only blacks, but poor whites as well. Rehnquist writes, “That § 182 may have been adopted to discriminate against poor whites as well as against blacks would not render nugatory the purpose to discriminate against blacks, it being clear that the latter was a "but-for" motivation for adopting § 182.”
A very good try. But, you bit off more than you can chew.
—You fell for Sotomayor’s stupid BS word game. You, and she, if you stopped to think about it and were honest, would acknowledge that “discrimination on the basis of sex“ means treating one sex differently than the other sex, and that prohibiting sex exchange procedures for both sexes does not discriminate in that sense.
Yes, Supreme Court justices do actually engage in stupid, obvious language games. They are just as stupid as the rest of us.
—The evidence claiming to be in favor of chemical castration for kids is based entirely on claims made by the kids themselves, who, at the time of being asked to perform a psychological self assessment, which is itself ridiculous, were led to believe by adults that the treatment was going to make them feel better, which of course introduces a strong factor of placebo effect and confirmation bias, making the resulting self assessments meaningless.
Even so, the original Dutch results that this entire massive insanity is based on, have never been able to be duplicated, despite similar studies being conducted in Britain and the US.
The original Dutch research also completely ignored the question of what the kids were sacrificing physiologically by never going through a normal puberty. As it turns out, from follow up research being done on the early cohort of young transitions, it’s quite a lot, and it’s actually pretty bad. Sterility, bone demineralization, Pelvic floor dysfunction, lack of sexual function, lack of cognitive/emotional development. Quite literally, these kids never fully grow up.