The decision of the Supreme Court to defend a prohibition of Tennessee of the attention affirmed by the genre for transgender young people is a tragic abdication of the responsibility of the Judiciary to protect minorities.
In 1937, in the products of the United States against Carolene, the court explained that, although the courts should generally differ to the political process, the deference is unjustified when there is discrimination against “discrete and insular minorities”, the groups that are unlikely to be protected against discrimination. The transgender young people are obviously a minority, but the Supreme Court, in a ruling of 6-3 divided along ideological lines, abandoned them.
The problem with the Supreme Court was if Tennessee can prohibit puberty that blocks administration hormones to transgender adolescents. Twenty -six states, all with state legislatures controlled by Republicans, have prohibited the attention that gender affirms by minors. It is estimated that there are 110,000 transgender people in these states that will be prevented from having medical attention that they, their parents and doctors want to administer.
President of the Supreme Court John G. Roberts Jr., writing for most in the United States against Skrmetti, He emphasized the need for the court to postpone to the judgment of the Tennessee Legislature. He concluded his opinion by saying that the issue remains “to the people, their chosen representatives and the democratic process.” Similarly, Judge Clarence Thomas, in a concurrent opinion, said: “Deference to legislatures, not experts, is particularly critical here.”
But such deference is inappropriate and unjustified under the precedents of the Supreme Court when a law weighs a group that has historically been subjected to discrimination. Such discrimination is present in this case in two ways.
First, Tennessee's law discriminates on the basis of sex. Roberts's majority opinion argues that denying medical care does not equals sexual discrimination because all Children are prohibited from receiving gender affirmation care. But this ignores that the law allows certain hormones to be delivered to boys and not girls, and vice versa. That, by definition, is sexual discrimination.
The Justice Sonia Sotomayor explained it in this way in its dissident opinion: “Sex determines access to covered medication. Doctors in Tennessee can prescribe hormones and puberty blockers to help a male girl, but not a girl, they look more like a child; and to help a girl, but not a male child, they look more like a girl.”
Second, the law discriminates to young transgender. Roberts also rejects this, saying that the law “does not classify on the basis of the transgender state.” But that is exactly what the law does: it stands out for transgender young people and prevents them from receiving some medical care.
By justifying the conclusion of the majority, the court is based on one of the most ridiculous decisions in history.
Geduldig vs. Aiello (1974) said that excluding pregnancy, and only pregnancy, due to disability coverage was not sexual discrimination. The decision said that there are two categories of people: non -pregnant people and pregnant people, and because women are in both categories, pregnancy -based discrimination is not sexual discrimination. As Judge Ruth Bader Ginsburg said later, Geduldig was “atrociously wrong”: “Discrimination of pregnancy is inevitably sexual discrimination.”
Roberts's logic works in this way: there are those who would use the hormonal treatment for the attention that gender affirms, which is prohibited by Tennessee's law, and those who would use hormonal treatment for other purposes, which is allowed. Because transgender people can be in both groups, there is no discrimination against them.
But, of course, this ignores that the whole purpose of the law prohibits the medical treatments that doctors, parents and transgender young people believe it is appropriate. It also leads to absurd conclusions, as Sotomayor said: the court approach would mean that “a law that deprives all people who 'never, or one day, menstruate' of access to health insurance would be neutral sex simply because not all women menstruate.”
By ignoring the discrimination inherent to the Tennessee Law, the Court avoided applying high scrutiny to the case. If that level of scrutiny had been applied, it would not have been possible to simply postpone to the Tennessee Legislature. The Court would have had to address whether the prohibitions of medical care were justified, as well as the Federal District Court in this case. The lower court, carefully looking at the evidence, determined that the general weight of the authority supports the attention affirmed by gender for transgender youth.
The human costs of defending the state laws that prohibit the attention that gender affirms will be enormous. As Sotomayor pointed out, “tragically, studies suggest that up to a third of transgender high school students try to commit suicide in a certain year.” She added: “When withdrawing from a significant judicial review, exactly where it matters most, the court leaves transgender children and their families to political whims.”
The implications extend beyond the prohibitions in Tennessee and other states against gender statement care. The Trump administration has banned transgender people to serve in the Army without providing the slightest basis for its action other than prejudice. He is also aggressively looking for Federal support for gender statement care for patients of all ages. Skrmetti's decision of the Supreme Court suggests its willingness to maintain such actions.
Unfortunately, the conservative judges took sides in the cultural wars and in doing so they abandoned both the constitutional principles of long data and the transgender people.
Erwin Chemendnsky, dean of the UC Berkeley Law Faculty, is a writer who contributes to the voices.
