DANIEL VAUGHAN: The Supreme Court Gets It Right On Tennessee Transgender Treatment Law
The Supreme Court's decision to uphold Tennessee's ban on transgender surgeries on minors is seismic for many reasons. Still, the main takeaway is that the entire legal machinery of the transgender movement lost. This case wasn't just a victory for Tennessee; it's a victory for every other state pursuing regulations. With one decision, those regulations are likely to win now.
The primary question before the Supreme Court was whether or not bans on transgender surgeries violated the Equal Protection Clause of the U.S. Constitution. The question the court faced was this: Does the Tennessee law deserve strict scrutiny review or rational basis review?
Without getting into the details of why that is, this is what it means. When judges decide whether a law is upheld or struck down, they choose a "lens" through which to view it.
The sharpest lens is strict scrutiny. Under this test, the government must prove two things beyond doubt about the law it is defending: first, that its goal is genuinely crucial. Examples are stopping racial bias or protecting national security. Laws that fit this description include the Civil Rights Acts of the 1960s, which prohibited discrimination based on race.
That's a law that looks at people's race. However, we allow it because it prevents discrimination on that basis. You can't change something immutable, like race. We have similar, though lower barriers, for sex. We'll return to this point.
Second, the legislation the government wrote is the narrowest tool possible, leaving no fairer or softer option on the table. Because these demands are so exact, most laws crack under the pressure and get struck down. It's tough to survive strict scrutiny for a state.
At the other end sits rational basis review, a much gentler lens. Here, the government wins as long as it can point to a sensible link between the law and a legitimate purpose, such as public safety, health, or even just an orderly budget. Judges do not ask if the rule is perfect or best; they ask, "Is this idea reasonable?" If the answer is yes, the law remains in effect.
Picture strict scrutiny as squeezing through a keyhole and rational basis as strolling through a wide doorway. The narrower the opening, the fewer laws make it through. If the government is asked to defend a law on strict scrutiny grounds, it is likely to lose. If it's a rational basis test, the government usually wins.
The plaintiffs in this transgender surgery lawsuit claim that the law discriminates against them on the basis of sex. The Supreme Court rejected this argument. The Supreme Court noted that it didn't do that at all; it discriminated on the basis of age and treated all sexes equally. Additionally, the law discriminated on the basis of medical treatment.
Neither age, especially for minors, nor medical treatment require strict scrutiny. With that obstacle removed, the court proceeded with its day and allowed the state government's law to stand. Chief Justice Roberts shut down any further role of the Supreme Court in adjudicating this topic by writing:
Our role is not "to judge the wisdom, fairness, or logic" of the law before us, but only to ensure that it does not violate the equal protection guarantee of the Fourteenth Amendment. Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process.
That is, simply said, the role of the Supreme Court. Roberts is leaving this issue to the political process to solve, where it belongs. Democrats are demanding easy victories in the court system, yet they are losing. This is a good thing. The Supreme Court is not making the same mistake of abortion.
Amy Howe noted in SCOTUSBlog, "According to KFF, more than half the states have laws similar to Tennessee's. The decision also comes just under five months after President Donald Trump signed a series of executive orders affecting the rights of LGBTQ+ people – and, in particular, transgender people. One such order, signed on Jan. 28, seeks to restrict the availability of certain medical treatment for transgender people under the age of 19."
It is almost certain all these state laws will be upheld now. Trump's executive orders will likely stand, barring some other lower court judge from trying to block them on inane grounds.
The ruling issues in a wave of new regulations that state legislatures have passed through the democratic process. States will be allowed to hold these debates, sift through the evidence, and reach a natural consensus. Judges are not acting as legislators in the process.
This is how it should be, and the result is a wise one. There is one last question of whether or not those calling themselves transgender are a protected class. The concurrence written by Amy Coney Barrett argued persuasively that they are not. The full court would likely reject that argument as well. I suspect her concurrence will get cited by lower courts as often as the majority opinion.
I haven't mentioned the dissents because there isn't much to say. They had little in the way of counterarguments to anything presented. Sotomayor's dissent read like a rant you'd find on BlueSky, lacking even the semblance of a legal argument. Were it not for the Supreme Court headings, you could be excused for thinking it was a lengthy social media post.
For a case pitched as divisive, it was a remarkable opinion that gave way to common sense on the highest court. States will have a decisive say in what happens moving forward. That's how a democracy works, much to the chagrin of the Democratic Party.