Wednesday, five justices on the U.S. Supreme Court released an opinion holding that a Tennessee statute similar to those enacted in almost half the states did not violate the Fourteenth Amendment’s Equal Protection Clause. The statute prohibited the use of various medical interventions to address a minor’s gender dysphoria. But, what did the Court actually decide about transgenderism?
Before addressing that question, let me say that those who believe there are only two sexes (genders) should be grateful for the result. Certain lines of rationale employed by the justices should also be received gratefully and applauded. However, Christians must not overlook a fundamental point about transgenderism that went unaddressed.
Understanding Supreme Court decisions is tricky business for the average person. The Court tends to decide constitutional disputes on as narrow grounds as possible. There can be wisdom in this approach, but it often leaves larger underlying issues unaddressed.
For example, since Roe v. Wade in 1973, Christian lawyers have not put before the Court the fundamental question of whether a human being in the womb is a “person” entitled to protection under the Fourteenth Amendment. Because that issue was not put before the Court in the 2023 Dobbs case reversing Roe, it wasn’t decided. That is why states remain free to put pro-abortion provisions in their state Constitutions and enact pro-abortion statutes.
Chief Justice John Roberts, writing for himself and four other justices, stated the constitutional issue narrowly as follows: “We are asked to decide whether SB1 [Tennessee’s statute] is subject to heightened scrutiny under the Equal Protection Clause. We hold it is not. SB1 does not classify on any bases that warrant heightened review.”
Without getting too far into the legal weeds, the Court has previously held that laws affecting certain “suspect classes” get a closer look—“heightened scrutiny”— into their constitutionality than laws affecting everyone else.
If a suspect class is not involved, the judicial “test” for a law’s constitutionality can be traced back to the Court’s decision McCulloch v. Maryland (1819):
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
The Court decided that persons who consider themselves transgendered, along with all its psychological and terminological variations, do not constitute a constitutionally protected class of human beings. That is good news; I can’t think of any state law that has been held constitutional when “heightened scrutiny” was applied.
Because no protected class was involved, the Skrmetti Court said the Equal Protection Clause left “the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field . . . to the people, their elected representatives, and the democratic process.”
Therefore, for now, the state of the science means Tennessee’s law is not unconstitutional.
In the amicus brief I filed with the United States Supreme Court in this case, I stated the fundamental issue this way (if you want to read it, click this link):
The contest in this case . . . raises questions as to whether there is a human nature, whether male and female are objective conditions of identity that State law may recognize, and whether the State may protect vulnerable children within its borders from the medical manipulation of persons’ sexed bodies in furtherance of a denial of any given human nature.
In other words, the brief says “the fundamental issue for this Court is not ‘whether the Constitution is neutral about legislative regulations of new and potentially irreversible medical treatments for minors.’” It asked if there is anything true about being human, and being male and female.
The brief went further by asking,
[W]hether States may refuse the novel proposal by some in society that a child is a blank construct for self-definition and medical manipulation and may also refuse the consequences to law and society that will come once such a radical departure from an objective human nature and historic community precept and embedded in our nation’s jurisprudence is made normative.
In other words, I wanted the justices and their clerks who read the brief to know two things. First, at bottom, they are deciding whether there is anything true about being human that would necessarily guide the decisions of parents, physicians, and legislative bodies. Second, I wanted them to recognize that accepting the transgender community’s argument would necessarily change everything in law and society that, for centuries, had been predicated on male and female.
Finally, the brief argues that “the concept of health itself vanishes from the law’s apprehension of health if it can no longer recognize a pre-existing and given human nature by which conformity to or deviation from wholeness and integrity can be judged.” If we don’t know what it means to be human, we can’t objectively know what it means form a human to be healthy.
Though none of the justices commented on the preceding fundamental issues, the result is good for minors in a number of states. But, at some point, Christian legislators and legal advocates must muster the courage to put this most fundamental of issues (is there a given human nature that is true for all person in every state?) squarely before the Court.
Put another way, do we believe there is a given law of human nature by which the justice of any decision, not just those involving health care, can be measured. Until we do, there can be no true rule of law.
Moreover, our nation will continue to live in a Nietzschean cosmology. In that cosmology, there is just stuff, and we get to decide, even from state to state, what it means to be human. In other words, the Court’s Skrmetti decision means transgenderism as a possible understanding of what it means to be human remains alive in our nation’s jurisprudence.
There is still a long way to go for Christians before the good of the nature given by God is restored in our nation’s thinking. That, to me, needs to be the goal.
