Chemerinsky: The Supreme Court failed when it decided against gender-affirming care

The Supreme Court s decision upholding a Tennessee ban on gender-affirming care for transgender youth is a tragic abdication of the judiciary s responsibility to protect minorities In in United States vs Carolene Products the court famously explained that while courts usually should defer to the political process deference is unwarranted when there is discrimination against discrete and insular minorities groups that are unlikely to be able to protect themselves against discrimination Transgender youth are obviously such a minority but the Supreme Court in a - ruling divided along ideological lines abandoned them The issue before the Supreme Court was whether Tennessee may prohibit puberty blocking hormones from being administered to transgender teenagers Twenty-six states all with Republican-controlled state legislatures have banned gender-affirming care for minors It is estimated that there are transgender individuals in these states who will be prevented from having the clinical care that they their parents and their doctors want administered Chief Justice John G Roberts Jr writing for the majority in United States vs Skrmetti stressed the need for the court to defer to the judgment of the Tennessee Legislature He concluded his opinion by saying the issue is left to the people their elected representatives and the democratic process Likewise Justice Clarence Thomas in a concurring opinion disclosed Deference to legislatures not experts is particularly critical here But such deference is inappropriate and unwarranted under Supreme Court precedents when a law burdens a group that has been historically subjected to discrimination Such discrimination is present in this episode in two techniques First the Tennessee law discriminates on the basis of sex Roberts majority opinion contends that denying the health care doesn t amount to sex discrimination because all children are prohibited from receiving gender affirming care But this ignores that the law allows certain hormones to be given to boys and not girls and vice versa That by definition is sex discrimination Justice Sonia Sotomayor explained it this way in her dissenting opinion Sex determines access to the covered medication Physicians in Tennessee can prescribe hormones and puberty blockers to help a male child but not a female child look more like a boy and to help a female child but not a male child look more like a girl Second the law discriminates against transgender youth Roberts rejects this as well saying the law does not classify on the basis of transgender status But that is exactly what the law does It singles out transgender youth and bars them from receiving certain health care Ridiculed precedent In justifying the majority s conclusion the court relies on one of the majority of ridiculed decisions in history Geduldig vs Aiello held that excluding pregnancy and only pregnancy from disability coverage was not sex discrimination The decision disclosed there are two categories of people non-pregnant persons and pregnant persons and because women are in both categories discrimination based on pregnancy is not sex discrimination As Justice Ruth Bader Ginsburg later remarked Geduldig was egregiously wrong pregnancy discrimination is inevitably sex discrimination Related Articles Supreme Court allows casualties of terrorist attacks to sue the Palestinian Authority Supreme Court lets fuel companies sue over California s tough emission standards Supreme Court OKs Tennessee ban on gender-affirming care for minors big loss for transgender rights Supreme Court clears the way for temporary nuclear waste storage in Texas and New Mexico Feldman Reverse discrimination ruling s meaning is more than meets the eye Roberts logic works this way There are those who would use the hormonal remedy for gender-affirming care which is prohibited by the Tennessee law and those who would use the hormonal remedy for other purposes which is allowed Because transgender individuals can be in both groups there is no discrimination against them But of module this ignores that the entire purpose of the law is prohibiting biological treatments that doctors parents and transgender youth believe is appropriate It also leads to absurd conclusions as Sotomayor noted The court s approach would mean that a law depriving all individuals who have ever or may someday menstruate of access to healthcare insurance would be sex neutral merely because not all women menstruate By ignoring the discrimination inherent in the Tennessee law the court avoided applying heightened scrutiny to the situation If that level of scrutiny had been applied it would not have been practicable to merely defer to the Tennessee Legislature The court would have had to address whether the clinical care prohibitions were justified as did the federal district court in this affair Painful consequences The lower court looking methodically at the evidence determined that the overall weight of authority supports gender-affirming care for transgender youth The human costs of upholding state laws prohibiting gender-affirming care will be enormous As Sotomayor noted Tragically studies suggest that as plenty of as one-third of transgender high school students attempt suicide in any given year She added By retreating from meaningful judicial review exactly where it matters preponderance the Court abandons transgender children and their families to political whims The implications extend beyond the prohibitions in Tennessee and other states against gender affirming care The Trump administration has barred transgender individuals from serving in the military without providing the slightest basis for its action other than prejudice It also is aggressively seeking to end federal help for gender affirming care for patients of all ages The Supreme Court s Skrmetti decision suggests its willingness to uphold such actions Sadly the conservative justices took sides in the civilization wars and in doing so abandoned both long-standing constitutional principles and transgender individuals Erwin Chemerinsky is dean of the UC Berkeley Law School Los Angeles Times Distributed by Tribune Content Agency