The Sound of Silence in Skrmetti

Hushed whispers and heads nodding.

About twenty minutes after oral arguments wrapped in Skrmetti, I wrote a quick summary of how I expected Justice Kagan to snatch a victory from the jaws of defeat. Here, I will offer further insights on Justice Gorsuch. Though he didn't say anything on the transcript, Loper Bright taught us about the sound of silence.

I asked a few people who were in the Court about Justice Gorsuch's demeanor. One said, "He just sat there. Expressionless." A second said his demeanor was "I'm sitting back in my chair and not planning to ask anything or reveal anything of my thinking about this case."

But a third offered this useful observation:

I was in the courtroom for the argument. You may be interested to know that after the second petitioners' lawyer finished, Gorsuch and Barrett had a very animated conversation in whispers. Several rounds of talking into each other's ears.

I don't know what they said, but they both seemed to agree about something. Smiles all around, nodding of heads, and some gestures that signify "you get it" coupled with that.

Maybe Barrett and Gorsuch were exchanging recipes for turkey chili and turmeric steak rub. But I think it more likely they were talking about the case. Now was their agreement about applying rational basis scrutiny or applying heightened scrutiny? I lean towards the former, but I cannot be sure. To paraphrase Justice Alito in Obergefell, I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their chambers, but if they repeat those views in public, they will risk being labeled as bigots.

Finally, a colleague who was not in the Court offered this recollection:

In my experience, in cases where the opposing parties are an individual vs. the government, Justice Gorsuch's total silence at oral argument means a vote for the government. I don't have the capability of doing some big study to prove this, but you probably do. In any event, if I'm right this means that Gorsuch will vote to uphold the law.

This is something that can be tested empirically. Ahem, Adam Feldman.

Speaking of Justice Alito, I think he enjoyed making this statement a bit too much:

So my question is: Why should we look to Bostock here? Bostock involved the interpretation of particular language in a particular statute. And this is not a question of statutory interpretation. It's a question of the application of the Equal Protection Clause of the Fourteenth Amendment, and the Court has addressed the -- the question of how an equal protection claim should be analyzed when the law in question treats a medical condition or procedure differently based on a characteristic that is associated with just one sex. And that was Geduldig in 1974, reaffirmed in Dobbs in 2022. And neither Bostock nor Dobbs saw any connection between the Bostock reasoning and the Geduldig/Dobbs standard. Bostock did not mention Geduldig, and Dobbs did not mention Bostock. So why should we -- we look to this Bostock-type reasoning here?

I think the Trump Administration lets this case ride, and it goes to a final judgment.

Comments

[Noscitur a sociis]

About twenty minutes after oral arguments wrapped in Skrmetti, I wrote

This fucking guy.

[Dan Schiavetta]

Indeed.

He probably hopes someone is blogging about his reactions to the Justices' reactions [or lack of]. "At that point, Mr. Blackman half-rose from his seat in the gallery, nostrils flaring, which I took as a sign that . . ."

[Kazinski]

"I asked a few people who were in the Court...."

[Kazinski]

But here you are.

[Kazinski]

Randy Barnett's take on Skermetti:

"My quick take on Skermetti oral argument: Majority won’t find there is sex discrimination. Nor will it find transexuality to be a new quasi-suspect class. So no intermediate scrutiny. 6th Circuit upheld. My hot take: the majority opinion won’t be very long."

[Joe_dallas]

The woke legal community is trying hard to make this case about discrimination based on sex. Its not about sex, its about banning certain medical procedures that have negative outcomes based on genetic factors. The fact that many of the genetic factors line up with sex is not relevent since it is the negative outcomes that is the defining criteria, not sex.

[Sarcastr0]

People disagreeing with you aren't some illegitimate community.

From Loving to Bostock, there's plenty of precedent to undergird the position this is discrimination.

That you go straight to the policy argument shows you have no clue what you're talking about.

If anyone is trying hard to make this case about something it's not, it's you.

[Savagely Average]

I think the Loving parallel is weak.

The argument in Loving was that laws banning interracial marriage didn’t discriminate on the basis of race because they barred both blacks and whites equally from mixed marriages. But that was a poor argument for a few reasons:

- The law made a person’s race the determining factor in whether that person was guilty of a crime which violated equal protection. Adam marries Betty, who is white. If Adam is black, Adam is guilty of a crime. If Adam is white, no crime.

- It was obvious the law’s *purpose* was anti-black discrimination. The concept was ‘we don’t want black men marrying white women because that’s bad for white men,’ not some neutral ‘we don’t want the races intermixing because that’s bad for everyone’ idea.

Turning to Skrmetti. The law’s opponents argue it discriminates based on sex the same way as the marriage law in Loving because whether a person can receive a hormone treatment turns on the person’s sex. A girl can receive estrogen but a boy can’t. But it’s very different from Loving.

The marriage law in Loving may have opened both blacks and whites to criminal liability, but its purpose was not race-neutral. It was rooted in anti-black racism. The law in Skrmetti, by contrast, *is* sex-neutral in its purpose. There is no evidence the drafters intended to target either males or females for bad treatment. Rather, the drafters equally wanted both male and female children to be barred from receiving transitioning treatments. In short, if the law is a manifestation of bigotry, the bigotry in question is transphobia and not misogyny or misandry.

Thus, you can’t find sex discrimination here through a traditional understanding of the term. You have to redefine ‘sex discrimination’ to include ‘discrimination based on a trans gender identity.’ Finding the marriage laws in Loving to be discriminatory didn’t require a similar redefinition of race discrimination.

Now, maybe you want to argue that Bostock already did define discrimination based on gender-nonconformity as a form of sex discrimination. But then you’re just restating the argument that transgendered people should be a suspect class that gets intermediate scrutiny. And, again, the result in Loving didn’t require creating a new class of people who get heightened scrutiny.

[Area Man]

The law in Loving also made exceptions for people who were descendants of Pocahontas. Thus, while white people generally were prohibited from marrying non-whites, some were given a special racial dispensation that others were denied. In other words, the law was essentially a double violation of the Equal Protection Clause.

[Randal]

It was obvious the law’s *purpose* was anti-black discrimination.

But to even get here, first you have to get to heightened scrutiny. Anti-black discrimination wasn't the stated reason for the law. Virginia's stated reason would've survived rational basis review. In order for the court to reject Virginia's stated reason, it had to find a reason to trigger the heightened standard of review allowing it to do so, in this case strict scrutiny. Hence, from Loving:

At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny."

The same logic applies here since Tennessee's law includes sex-based classifications. Virginia couldn't survive heightened scrutiny, because as you say, the discriminatory intent was "obvious." Maybe Tennessee can survive. But we should at least see.

(I don't think a new suspect class is required. The sex-based classifications are enough to trigger heightened scrutiny, just like the race-based ones were in Loving. A law that applies to only a subset of a suspect class -- sex -- still implicates Equal Protection with respect to that subset. You can't say "we're only discriminating against blonde women" to evade heightened scrutiny, nor does that imply that "blondes" are a new suspect class.)

[Joe_dallas]

Both Rice's responses and my comments make clear this case in not about sex discrimination. As has been made clear, this case is about banning specific medical procedures for specific medical/mental health conditions that cause harm.

Your response shows you have no concept of either the actual medical issues nor how the misunderstanding/twisting of the biological facts skew the understanding to the legal issues.

[Randal]

The fact that many of the genetic factors line up with sex is not relevent since it is the negative outcomes that is the defining criteria, not sex.

Joe, this is a fine argument to make... after you agree that laws that have the effect of discriminating between men and women, even if it's because of genetic factors, face heightened scrutiny. You're making an argument about why heightened scrutiny is satisfied, not that it shouldn't apply.

This is how it works already with things like women's sports and locker-rooms. Everyone first agrees to agree that we are discriminating based on sex, obviously, and then we can talk about why that's ok in these contexts.

[Joe_dallas]

Randal - you are intentionally distorting the biological and medical facts Which you and all the other activists have to do claim the issue is discrimination based on "sex"

The ban was enacted because of the negative medical outcome for a class of drugs and treatment for a specific mental health condition/medical condition. Those drugs and treatments are not banned for different medical conditions. A very distinct difference you intentionally ignore.

[Randal]

Yes, we ignore the stated purpose of the ban when looking at whether the law discriminates in practice. That's the whole point of heightened scrutiny. You can't hide a discriminatory law behind a false pretense. But rather than scrutinize every law to see if the pretense is false, first a court checks whether it even discriminates. If not, then it's sort of like no harm no foul, and the court does a cursory review called rational basis. Essentially, it asks whether your stated purpose is obviously a false pretense on its face. If not, then fine, whatever.

But if the law does discriminate in practice, which this law plainly does, then the court takes the closer look at its purpose that you keep wanting to talk about.

We're not ignoring the medical facts that justify the law. We're just not to that point yet. The Sixth Circuit ignored the medical facts when it decided to only do rational basis review. So in other words, us progressives are with you 100% that Medical Facts Matter.

[LoganMankins]

>In my experience, in cases where the opposing parties are an individual vs. the government, Justice Gorsuch's total silence at oral argument means a vote for the government. I don't have the capability of doing some big study to prove this, but you probably do. In any event, if I'm right this means that Gorsuch will vote to uphold the law.

This observation doesn't mean much when both parties are sovereign governments.

[Kazinski]

"The plaintiffs are a 16-year old girl, identified only as "L.W.", and her parents, Brian and Samantha Williams, of Nashville, Tennessee."

https://www.advocate.com/news/united-states-v-skrmetti-teen

"Trans teen pleads with SCOTUS to strike down Tennessee’s gender-affirming care ban ahead of landmark hearing"

[LoganMankins]

I want you to read the petitioner’s name and tell me if that’s an individual or a government

[not guilty]

The petitioner in the matter before the Supreme Court is the United States, an Intervenor in the lower courts. The private parties who initially filed suit have also filed cert petitions, which SCOTUS has neither granted nor denied at this point.

[John Rohan]

But the teen is on the side of the federal govt. The case is US vs Skrmetti. Jonathan Thomas Skrmetti is the Attorney General of Tennessee.

[Savagely Average]

Yeah, that struck me too. Which side is “the government” here?

I suspect he’s being imprecise and what he means is that Gorsuch would be disposed to support the government *action* which in this case means ruling against the US and upholding the state law.

[F.D. Wolf]

It seems highly unlikely that the same Court that overturned Roe v. Wade will discover a constitutional right for transexuals (and ONLY transexuals) to take hormones.

[Kazinski]

Is there a right to get your kids Human Growth Hormone because they identify as a football player or WWF wrestler?

And why is it so hard for healthy men to buy testosterone?

[F.D. Wolf]

There are, I imagine, many young boys who play football, wrestle, lift weights, or just want to be bigger and stronger, who would love to get their hands on testosterone, but we don't allow it because, as a society, we have deemed it unsafe for their developing bodies. I doubt many would argue they have a constitutional right to access it (though I can imagine one of the co-bloggers here, who has many unorthodox views of the Constitution, who might argue it.)

Is it difficult to get testosterone? I have never tried, but it seems I see no shortage of advertisements for it.

[JesusHadBlondeHairBlueEyes]

It's unsafe for a boy who wants testosterone to have a more masculine body, so he's banned.

However,
It's not unsafe for a girl who wants testosterone to have a more masculine body, so she has a legal right to access it, because denying it to her is sex discrimination because boys who want the same thing are banned from getting it too.

That Modern Left's legal theories, ladies and gents.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

The string of above comments are logically and rhetorically NA.
IF you don't accept that there is a woman or man to start with (as with Justice Brown) how do you define 'conversioni' anyway.

IF a boy-turned-girl detranses and you oppose that, you must base it on X being a boy or a girl but that is what you rejected at the start. So am I a neuter until I tell a judge what gender I feel like (which gender is technically not a gendere anyway , since if I detrans I must be something definite I am detransing from)

I have said it for a long time : Brown, Kagan, and Sotomayor are really quite stupid and an ordinary person can see it

[Joe_dallas]

Peter - Not sure I would say the same about Kagan, though Sotomayor and Brown certainly fit your description. Sotomayor demonstrated your description with the covid cases, while Brown demonstrated your description in the Moore case and the inane comment with what is a woman. Its hard to get the law correct when you cant get basic facts correct.

[Brett Bellmore]

It actually IS unsafe; Testosterone levels are regulated by a negative feedback mechanism, if you artificially push them above the set point the body reduces native production, often irreversibly, and you become totally dependent on supplementation going forward.

Or to put it non-medically, your balls shrink, and you probably end up sterile.

[Savagely Average]

Eh, your balls will probably come back once you get off gear. Though it might take a year or more. Plus you might grow boobs, which do not go away but can only be rectified with fairly invasive plastic surgery.

But on the plus side you get more followers.

[Brett Bellmore]

"And why is it so hard for healthy men to buy testosterone?"

Professional sports. They're screwing over older men with declining T levels and sarcopenea, in order to fight "doping" in professional sports.

[Randal]

It seems highly unlikely that the same Court that overturned Roe v. Wade will discover a constitutional right for transexuals (and ONLY transexuals) to take hormones.

It certainly does! Especially since there's no case on the docket that's asking them to do so, and anyone who tried would be laughed out of court.

[Noscitur a sociis]

Is there anyone whose views on the policy wisdom of this law and the constitutional question? In other words, anyone who thinks children should have access to these procedures, but thinks Tennessee is allowed to ban them? Or anyone who thinks the ban is a good idea, but that the constitution forbids it?

I’ll admit that I am not such a person.

[Soronel Haetir]

I am such a person. I believe the only drugs that should be controlled in any way are those like antibiotics where individual use determines long-term effectiveness. I would, however, allow insurance companies to require prescriptions, and maybe even individual pharmacies based on owner's policy preferences, but the government would have zero input.

At the same time, I believe the federal constitution gives states enormous leeway to ban or allow such.

[Absaroka]

I tend to agree with your first paragraph, for adults. But it's less clear for children. For example, Dad thinks it's a good idea to give Junior anabolic steroids so Junior can bulk up and collect the football glory Dad never had. Is that OK, even if you think Dad should be able to use them himself?

[Kazinski]

Wasn't all that settled when the courts allowed states to ban conversion therapy, which is after all just speech, and not powerful drugs?

My AI writing assistant offered to rewrite that for me, I think it lacks my true voice, maybe it needs more training:
"The issue of conversion therapy is a complex and sensitive one. While the courts have ruled that states can ban the practice, the debate around it continues. It's important to approach this topic with empathy and understanding, recognizing the potential harm it can cause while also respecting the right to free expression. A more nuanced discussion that considers the various perspectives and concerns involved would be more constructive."

[Caphon]

> potential harm it can cause

What is “it” referring to? The therapy, the issue/topic, empathy, or the debate? AI gets on a pretty high horse with its clarification attempts. 😉

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

Conversion therapy that only goes one way , is what it banned.
Logically both 'to trans' and 'from trans" are converison therapy

[Brett Bellmore]

It's easier to understand the ban on conversion therapy when you realize the goal is actually just to increase the frequency of sexual deviance in order to destroy societal norms, not to help people become what they want to be.

[Randal]

Brett's telepathy fails him... again.

[Brett Bellmore]

Not telepathy, just deduction from publicly available facts.

If you're determined to help guys become pseudo-girls, but not more manly, and help girls become pseudo-guys, but not more feminine, it's not hard to figure out what you're up to. If it were just about self-realization, why wouldn't you support conversion therapy? It's no less effective than 'gender affirming' therapy, and the side effects are a lot less irreversible.

[David Nieporent]

Um, straight men are not "more manly" than gay men, and straight women are not "more feminine" than lesbians.

[Joe_dallas]

The woke have problems with reality

[Stupid Government Tricks]

It used to be dogma that LGBTQWERTY was genetic, making discrimination and conversion therapy immoral. It also used to be dogma that female genital mutilation was the worst crime possible, except chemical castration even for pedos and rapists who volunteered for it. And it used to be dogma that women needed their own sports teams and leagues, and an entire industry was built around Title IX to enforce the separate and unequal leagues.

Now it's dogma that you can flip among the 57 gender fluidenties on a whim, teacher conversion propaganda is mandatory, as is the appropriate genital mutilation surgery and chemical castration. It's also de rigeur that third-rate male athelete can identify as women and compete in their sports, winning medals for literally beating them up.

[Randal]

This is where Brett goes from inaccurate telepathy to simply making things up.

why wouldn't you support conversion therapy? It's no less effective than 'gender affirming' therapy, and the side effects are a lot less irreversible.

Conversion therapy is 100% less effective than gender-affirmimg care because it isn't effective at all whereas gender-affirmimg care is very effective (when limited to patients who have been appropriately diagnosed). If conversion therapy worked it would be wonderful! Imagine if there was conversion therapy for race and everyone who wanted to could be white as the driven snow, like Michael Jackson. Who wouldn't want that? But it doesn't work.

[JesusHadBlondeHairBlueEyes]

I've said this repeatedly.

It is mindboggling that people adamantly support "gender affirming therapy" when no human being has ever changed sex.
While at the same time vehemently oppose "identity affirming therapy" when countless people have changed sexual orientation.

Their beliefs aren't coming from a place of reason, but from a place of blind faith and emotion.

A boy will never ever ever become a girl. However, countless homosexuals have chosen to become straight, and many heterosexuals have chosen to become homosexuals.

[Randal]

We can tell that you realize you're just playing word games.

[Sarcastr0]

increase the frequency of sexual deviance in order to destroy societal norms

Inching towards QAnon.

[Randal]

I think children should have access to them and that Tennessee can ban them. But I also agree with the District Court's findings, that the current ban isn't even rational. Tennessee needs to try again with a ban statute that makes at least de minimis sense. Right now it's basically "Trans kids can pound dirt. And really, if we could find a medical treatment that increased their rates of suicide, we'd mandate it." Not great.

[JesusHadBlondeHairBlueEyes]

Transgender care for children doesn't reduce suicides though. That was covered in the oral arguments.

[Randal]

You obviously didn't understand the oral arguments. Suicides are rare enough -- even for trans people -- that you can't get a statistically-significant indication of changes in suicide rate directly from a drug test. So instead they measure proxy symptoms like suicide attempts and thoughts of suicide. If those go down in studies with treatment -- which they did -- that implies suicides themselves will also go down in practice.

[Joe_dallas]

Randal's comment - "If those go down in studies with treatment -- which they did -- that implies suicides themselves will also go down in practice."

Those studies are exceptionally weak/not robust.
Other studies show an increase in suicidal tendencies with transgender treatment.

The studies showing only 1% or 2% regret rate are near academic fraud. The best of those studies have responses rates less than 50% and very short time periods and only include individuals still under mental health care. You have to be extremely gullible to believe those studies are even remotely robust.

[Randal]

Well, the District Court disagrees with you and the Sixth Circuit punted. If you're right, why not have the Sixth Circuit take a look? Maybe they'll agree with you.

[Joe_dallas]

Randal - the Tennessee ban is very rational and heavily supported by actual medical science.

The "medical science " in support of transitioning is absolute crap. The reason European countries a backing out is they are beginning to realize the shoddiness of the pro transitioning studies.

[Randal]

Then you should be happy with a remand. Tennessee is saying that none of that should matter to the court. A remand just says, it matters enough for at least a quick look.

[Savagely Average]

I thought the district court held transgendered people to be a quasi-suspect class and then concluded the law probably failed intermediate scrutiny, not that it concluded the ban didn’t pass a rational basis test.

Also it sounds like the kind of regulation you’d think was constitutionally sound would probably be something short of a blanket ban.

[Randal]

I thought somewhere in the oral arguments it came out that the district court suggested the law wouldn't even pass rational basis scrutiny, but I could be misremembering. Maybe it was just one of the justices reading more into it than was there. I'll defer to you on that, I haven't read the district court opinion myself.

Also it sounds like the kind of regulation you’d think was constitutionally sound would probably be something short of a blanket ban.

Not necessarily, but I would require the state to justify the completeness of the ban, especially when, as here, it's not just an atypical approach for the state to take but unique. The simultaneous over-inclusiveness and under-inclusiveness, all calibrated to really stick it to trans kids, is a tell.

[Savagely Average]

I’ve only read the opinion so maybe the court did say something along those lines at oral argument.

Can you unpack what you mean by “simultaneously over-inclusive and under-inclusive”?

[Randal]

There are a lot more dangerous procedures, including ones involving these very drugs, that aren't subject to complete bans. Can Tennessee explain that? That's the under-inclusive part.

Tennessee bans all gender-affirming treatments equivalently, even though the evidence they have about the risks only applies to a subset. Can Tennessee explain that? That's the over-inclusive part.

[Savagely Average]

Thanks, got it. Underinclusive because it doesn’t include similar treatments with the same or greater risks. Overinclusive because it bans all transitioning treatments for minors even though the risks they identify apply only to some.

So based on your argument, the law might fail some heightened scrutiny test but would probably pass rational basis.

Personally I’d be disinclined to apply heightened scrutiny. The law doesn’t discriminate based on sex for the reasons Rice articulated so intermediate scrutiny based on sex discrimination is out.

And although I think there’s an argument that trans-identifying *adults* might be a quasi-suspect class, I don’t think so-called “trans kids” are an ascertainable group because it’s not an immutable trait. Numbers vary but somewhere between 65% and 90% of cases of youth gender dysphoria resolve without transitioning. That’s pretty damn mutable.

So, if I was deciding cases for the Supreme Court, the Tennessee law would get by on rational basis. But a law imposing a blanket ban on transitioning treatments for adults could be subject to heightened scrutiny and would probably fail.

[Randal]

The law doesn’t discriminate based on sex for the reasons Rice articulated

See my below comment but I'll reiterate it here. Rice's argument would apply equally well to all laws that intend to keep members of suspect classes "in their lane," including anti-miscegenation. It's the same argument, as Jackson made so pointedly clear.

I'm not even saying it's a weak argument. It's not strong, but it's at least plausible. But it would unwind a lot of civil rights law going back to the '60s. Is that what you're advocating? Or do you see some way of distinguishing Tennessee's argument from Virginia's?

It's also not completely politically aligned. A lot of woke lefties would love to be able to "protect" races in a similar fashion. Imagine California passed a law banning anyone from cooking cross-cultural cuisine. Only Indians could cook Indian food, French people could cook French food, Americans could cook American food, Chinese could cook Chinese food, Italians could cook Italian food... I guess I don't need to list all ethnic foods. 🙂 Or New York banned cross-cultural attire and haircuts. No dreads for white people. Do you think that kind of a law should implicate Equal Protection or not?

[Savagely Average]

“Do you see some way of distinguishing Tennessee’s argument from Virginia’s?”

I see lots of ways. How about the obvious way, which Rice discussed at length.

Virginia’s argument in Loving was that the law wasn’t discriminatory because it equally prevented both blacks and whites from intermarrying.

But the problem with that argument was, it created a situation where *the defendant’s race was an element of a criminal offense*. Adam and Bill both marry white women, but Adam is black and Bill is white. Adam is guilty of a crime. Bill isn’t. They both did the exact same thing; they’re similarly situated. The only difference is their race. Equal protection violation.

Why doesn’t that apply here?

Because a girl who takes an estrogen for an endocrine disorder and boy with gender dysphoria who takes estrogen to feminize his body *are not doing the same thing.*

The conditions the drug is treating are completely different. An endocrine disorder is physiological. Gender dysphoria is psychological.

Their bodies are different and, therefore, the ways the drug operates on their bodies are completely different. The boy who takes estrogen is risking sterility. The girl who takes estrogen isn’t.

Simply put, boys and girls who take estrogen are not similarly situated.

That’s not a “stereotype” or a “keeping people in their lane.” It’s a biological reality. We ignore those at our peril.

Arguing that the constitution requires us to view accounting for the real and significant *medical* distinctions between male and female bodies as an inherently suspect and discriminatory act has dangerous implications.

[Randal]

You must have found that very cognitively difficult to write!

Watch how your distinctions evaporate. It's all just clever wordplay on the part of Rice (and Virginia). Ahuh ahem:

Rice’s argument in Skrmetti was that the law wasn’t discriminatory because it equally prevented both boys and girls from transitioning.

But the problem with that argument was, it created a situation where *the defendant’s sex was a criteria for medical treatment*. Adam and Bill both wish to trigger puberty with testosterone, but Adam is XX and Bill is XY. Adam is withheld treatment. Bill isn’t. They're both doing the exact same thing; they’re similarly situated. The only difference is their sex. Equal protection violation.

Why doesn’t that apply to Loving?

Because a white man who marries a white woman for racially pure progeny and black man who marries a white woman for diverse progeny *are not doing the same thing.*

The conditions the children will grow up in are completely different. A racially pure child will be accepted by their culture as normal. A mixed-race child will face the challenges of not fitting in.

The parents' genes are different and, therefore, the ways their genes are passed on to their children are completely different. The mixed-race child risks being ostracized. The white child does not.

Simply put, white men and black men who marry white women are not similarly situated.

That’s not a “stereotype” or a “keeping people in their lane.” It’s a biological reality. We ignore those at our peril.

Arguing that the constitution requires us to view accounting for the real and significant *genetic* distinctions between pure and mixed-race bodies as an inherently suspect and discriminatory act has dangerous implications.

[Randal]

Allow me to attack your argument in a second way. You continue to confuse two questions:

1. Whether the law draws distinctions on the basis of sex

2. If so, whether those distinctions are justified

You keep trying to say that the distinctions are justified, therefore they don't exist. For example:

The boy who takes estrogen is risking sterility. The girl who takes estrogen isn’t. ... Arguing that the constitution requires us to view accounting for the real and significant *medical* distinctions between male and female bodies as an inherently suspect and discriminatory act has dangerous implications.

Your premise is that the law is all about distinguishing between male and female bodies! That's all it takes to answer question #1 in the affirmative. That's the lesson of Loving etc. When you have to say something like "boys and girls... are not similarly situated" in defense of your law, that pretty much automatically triggers heightened review. The judiciary gets to take a closer look at laws like that because of their potential to violate Equal Protection.

That doesn't mean they do. You can still say yes to question #2. That's where your arguments about the medical distinctions between the sexes come in.

Of course states can pass laws that discriminate between the sexes when the discrimination is rooted in physiological distinctions. That happens all the time. But it's dangerous to pretend like such laws aren't discriminating by sex when they obviously are. It would give legislatures a way around judicial review just by saying some magic words about medical science.

In fact, Virginia tried to do exactly that. This is from the Loving decision (Jackson quoted it in oral arguments):

If the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a state to treat interracial marriages differently from other marriages. On this question, the State argues the scientific evidence is substantially in doubt and, consequently, the Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.

Sound familiar?

[Savagely Average]

Your first post just substitutes a bunch of racist stuff that’s totally different from what I wrote using the same paragraph structure. So, not much of a gotcha. But I’ll respond to your second post which is more interesting.

Our disconnect, I think, and the reason you see me as conflating questions 1 and 2, is that you believe *all* laws which make distinctions based on sex, or which result in men and women being treated differently, should get heightened scrutiny. I don't believe that. Some should, but some shouldn't.

Here are some examples of how I would differentiate:

- An assistance program providing free gynecological exams to low-income women.
- My take: Rational basis. Under the program, women can get healthcare and men can't. But that’s because only women need gynecological exams. A law isn’t suspect just because it involves vaginas.

- A “bathroom bill” providing that public restrooms are open only to individuals whose sex corresponds to the sex stated on the door of the facility.
- My take: Heightened scrutiny. Creates physical spaces that only one sex or the other can access based on assumptions about members of that sex.

- A law requiring drug manufacturers to include a certain number of female test subjects in clinical trials for drugs intended to be given to both men and women.
- My take: Rational basis. Men and women respond to many drugs differently. Acknowledging that fact doesn’t make the law suspect.

- An assistance program providing psychological counseling to women who have been sexually assaulted.
- My take: Heightened scrutiny. Provides counseling to female victims but not male apparently based on assumptions about how women vs. men react to being assaulted – or perhaps based on an assumption that only women can be assaulted.

Your take, I believe (correct me if I’m wrong) is that, although some or all of the above laws may be constitutional, they *all* get heightened scrutiny because they all make distinctions based on sex. I think that’s wrong both constitutionally and as a matter of policy.

I think that laws which result in disparate treatment based on *assumptions about how men and women feel and behave* should get heightened scrutiny.

But laws which result in disparate treatment based on *physical differences between male and female bodies* can be reviewed under a rational basis.

In the case of Skrmetti, that girls can get estrogen and boys can’t is down to physical differences between male and female bodies. Estrogen in a male will facilitate transitioning. In a female it won’t - you need testosterone for that. Physical differences, not assumptions about feelings and behaviors, drive the disparate treatment. Hence, rational basis.

[Randal]

Your first post just substitutes a bunch of racist stuff that’s totally different from what I wrote using the same paragraph structure.

Yeah, that's the point. My rewrite discriminates by race in exactly the same way that your post discriminates by sex. And it's the exact argument Virginia made. We've been here before.

Your take, I believe (correct me if I’m wrong) is that, although some or all of the above laws may be constitutional, they *all* get heightened scrutiny because they all make distinctions based on sex.

Correct, except possibly the drug-trials one, depending on the details. It appears to be about enforcing equal treatment of men and women, so it plausibly could be written in a non-discriminatory way. (The literal way you've phrased it, where it's one-sided, is discriminatory.)

... I think that’s wrong both constitutionally and as a matter of policy.

You may very well get what you want, or close to it, based on how oral arguments went. But that would be a (tragic, IMO) change to existing precedent, which is quite clear-cut (US v Virginia, 1996):

The Fourth Circuit plainly erred in exposing Virginia's VWIL plan to a deferential analysis, for all gender-based classifications today warrant heightened scrutiny.

(Emphasis mine, internal quotes omitted.)

Why weaken such a simple principle? The only reason I can think of is to make it easier to slip discriminatory laws through judicial review.

[Area Man]

At this time, I'm agnostic to whether children should be able to access the treatments. Admittedly, I'm skeptical on whether they are good for children. But my real problem is that I don't think the science is settled enough, and that the science has been hyper-politicized, which also makes me skeptical. It might be settled enough one day to overcome my skepticism, but it's not now. In other words, I'm not per se against such treatments for minors.

But, regardless of the science, I think states are well within their legal rights under the federal Constitution to ban these treatments. Nothing in the Constitution speaks to this issue, and certainly not the Equal Protection Clause. Thus, the Tenth Amendment kicks in. The proper forum for these disputes is the political process, not the legal process.

[Savagely Average]

This is pretty much my view.

I’m willing to be persuaded that transitioning might be the best option for some kids in some very rare cases.

But right now the field is totally politicized and dominated by activists, ideology is being conflated with patient welfare, sweeping pronouncements of “settled science!” are being made in areas where the science is really quite vague and uncertain, and dramatic claims are being made (transitioning kids saves lives!) that the evidence we do have does not support at all.

Under the circumstances I don’t know if a blanket ban is the best policy. But it’s certainly a valid one.

[Randal]

Nothing in the Constitution speaks to this issue, and certainly not the Equal Protection Clause.

The reason the Equal Protection Clause is implicated is because of the relationship between the topic and sex. We've long said that Equal Protection doesn't allow the government to enforce conformity or stereotypes, even when the enforcement is done "equally" across different sexes / races / nationalities. The same logic applies here. Just like you can't say that all races are equally prohibited from marrying other races, or all sexes are equally prohibited from marrying the same sex, or all sexes are equally prohibited from wearing the clothing typical of the other sex, you can't say that all sexes are equally prohibited from identifying as the gender of the other sex. Or you can, but you have to be extra careful, aka heightened scrutiny applies.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

The foolish Libertarian views on Natural Law and Religion (inherited from Ayn Rand , whose "For the New Intellectual" converted me to Catholicism!!) are present in the comments about Ketanji Brown and Sotomayor. I heard their insane and hatefully insensitive remarks about trans surgery and all I could think is : This is why Reason won't support Millei and Villareul and also won't oppose Brown and Sotomayor: You would ahve to say THIS IS WRONG AND THIS IS RIGHT.

[Randal]

I think you guys are totally underestimating the extent to which Kavanaugh entirely unintentionally undermined the conservative side by going on and on about how ill-suited the judiciary is to doing much of anything at all. It drew a rebuke from Roberts (!) as well as set up Jackson for her most biting jab, when she pointed out that Kavanaugh was parroting the racist arguments in Loving, like, verbatim. (How did she know to have that quote ready to go! Kavanaugh is so predictable.)

Kavanaugh's rantings mean that upholding the law at this stage would look like an explicit abdication of judicial power. That won't bother Thomas probably, but it'll make everyone else on the court squeamish... even Roberts! Why not just remand for heightened scrutiny now, they'll think, and then uphold the law later but with the judicial power of review intact?

This could go anywhere from 6-3 remand to 6-3 affirm. If it is a remand... Blame Kavanaugh! Blame Kavanaugh! It seems like everything's gone wrong since Kavanaugh came along. Blame Kavanaugh! Blame Ka-va-naugh! He's not even a real justice, anyway.

[JoeFromtheBronx]

"how ill-suited the judiciary is to doing much of anything at all"

Doesn't seem to stop him when it comes to various topics, including guns and "major questions" and Chevron deference issues.

He's not consistent in his judicial restraint, which among other things makes it hard to take him seriously. The Constitution "doesn't take a position" -- I think Justice Jackson had the right answer.

[JoeFromtheBronx]

If only, like lots of lower courts & foreign courts, we didn't have to rely on a few people -- including those who slept outside in the cold (though perhaps some were paid line sitters) -- to tell us Gorsuch's demeanor & there was video of the oral argument.

The ability of the public who were able to obtain limited seating & credentialed media to watch in person underlines there is a value in being able to watch the public governmental hearing in question.

[Rienzi]

Sterilizing the mentally infirm. Sounds like Buck vs. Bell to me. And on children no less.

[David Nieporent]

It's literally nothing like Buck v. Bell, since that was about mandatory, involuntary sterilization.

[Stupid Government Tricks]

I'm waiting for the argument that Daddy can push Junior off a roof if Junior identifies as Superman.

[ReaderY]

Proposition:

If the same physical act, done by a doctor, is described as “female genital mutilation” if done for religious identity reasons but described as “gender affirming care” if done for non-religious identity reasons, this is discrimination against ad/or animosity towards religion prohibited by the First and Fourteenth Amendments.

True or false?

For people who think that the constitution says the state can interfere with parental choice if done for a religious purpose but not if done for a non-religious purpose, why do you consider the cases different? And why don’t the Religion Clauses determine the outcome?

[John Rohan]

The plaintiff side would argue that “gender affirming care” is recommended by doctors while “female genital mutilation” is not. But two problems with that argument - 1) it's an appeal to authority, and a consideration that should be taken up by the legislature. It's not a legal argument.

And 2) expert widely disagree on this issue and as justice Alito pointed out, after extensive study they are rolling these treatments back in Europe.

[ReaderY]

What about the case in my comment below where the Justice Department prosecuted a doctor?

[Randal]

If the same physical act, done by a doctor, is described as “female genital mutilation” if done for religious identity reasons but described as “gender affirming care” if done for non-religious identity reasons...

It's also described as "stopping the infection" when done for debridement reasons. Who are you trying to fool here, yourself? It's not difficult to understand the situation.

It's like... oh my god, the doctor chopped off one of the baby's fingers! Yes, there's something called polydactyly, and that's the treatment. Deal with it.

That doesn't mean it's fine for Christians to chop off their kids' fingers as punishment for masturbating, or whatever it is that Christians do.

[ReaderY]

The reason you think circumcision for religious purposes horrible and awful is because you’re an extremist anti-religious bigot. Of course it’s gender identity affirming care. See my comment below.

[Randal]

I don't really have an opinion on female circumcision, I haven't looked into it in any detail. I'm just pointing out how retarded your argument is.

[Josh R]

The description makes no difference. If the state bans a procedure except for use to affirm one's gender identity, that law applies without reference to a religious belief. Smith applies.

[ReaderY]

But the religious procedure is used to affirm gender identity in that relgion. That’s exactly its purpose. You’re believing there’s a distinction extends from your animosity towards the idea that religion can be central to people’s identity. Only if you have animosity towards religion can you think that gender identity affirmation in the context of a religion isnmt “real” gender identity affirmation, or that care received to effect that affirmation isn’t “real” gender affirming care. Of course it is. Stop being such a bigot!

[ReaderY]

Also, what has the United States Department of Justice done to compensate this doctor for prosecuting and hounding him and his wife for providing gender affirming care?

https://www.justice.gov/opa/pr/detroit-emergency-room-doctor-arrested-and-charged-performing-female-genital-mutilation

[Joe_dallas]

That is not gender affirming care

[ReaderY]

Cisgender affirming care is gender affirming care. Treating one differently from the other is discriminatory.

And gender is a social construct, right? The society this doctor and the children involved were part of has so constructed things that this is how female gender is affirmed in that society.

Why the animosity towards it?

[not guilty]

Professor Blackman writes, "I think the Trump Administration lets this case ride, and it goes to a final judgment."

We are presently still at the preliminary injunction stage. Proceeding to final judgment would involve SCOTUS acting one way or another on the cert petitions filed by the minors, their parents, and a medical provider, and thereafter remanding to the District Court for a full trial on the merits, after which the losing parties could appeal.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

My take: Kagan, Sotomayor , Brown are sub-sub-standard legal minds.
S. mocks everybody with the aspirin comment. B. doesn't know -- she admits --- what makes a woman a woman. And K. (is she lesbian or not?_ said at her hearing :
"“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people.”" The choices-- that's why people hate lawyers. The choices!! If Tren De Aragua wants to kill you, well that's their choice.-

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

REASON is getting sloppy and lazy.
No mention tof CHILE ...why ?
Chile’s Senate has passed a law that prohibits the government from using public funds for sex reassignment surgeries or hormonal treatments for children under 18. This makes Chile the first country in Latin America to adopt such a law, setting a significant precedent for child protection against gender ideology.

It's beginning to look like Reason is distancing itself from Villareul and Millei because Reason wants abortion, really wants it as the standard for human freedom. How damn perverse k-- but it does explain why you can't just bring yourself to say "removing the gentials of a minor is Nazism"

 

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

NOt wanting to call anyone a pervert who can be used in a battle for the right to do every damn thing you want, you fail to mention that the KEY attacker in the Masterpiece Cake case was a demented trans lawyer (and ugly to boot)

Yes, this is a man
https://media.them.us/photos/60cb9c92808fdfe190808a10/16:9/w_1920,c_limit/image001.jpg

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

Not one post from someone who heard Skremmeti speak. I listened to one hour of him on this topic. He is totally convincing.
Attorney General Jonathan Skrmetti Defends the State's Law in the Supreme Court | Case in Point
https://www.youtube.com/watch?v=4v69wmFZha8
I asked ( more like 'begged') Dr. Johanna Olson-Kennedy
Physician
for her help based on the research she refused to publish. and NOTHING.
Listen , and tell me if you can understand without calling the ACLU

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

Overwhelmingly the science is against all trans argumenst. It's perversion.i