To build on Christopher Mills’s excellent post:
Solicitor General Elizabeth Prelogar maintains that the Tennessee law that she is challenging in United States v. Skrmetti facially discriminates on the basis of sex because (as she puts it in her brief) it “defin[es] the prohibited medical care based on the patient’s sex assigned at birth.” But her position that a law’s recognition of basic physiological differences between men and women makes it sex-based—and therefore subject to heightened review—leads to absurd results.
One example should suffice to illustrate the point. Under Prelogar’s approach, an abortion law that includes the term “woman” would be facially sex-based and subject to heightened review while an abortion law that is of identical scope in its operation but that uses the term “person” would be subject only to very deferential rational-basis review.
As Tennessee cogently argues, rather than classifying on the basis of sex, the Tennessee law classifies on the basis of purpose: it draws a line between minors seeking drugs for gender transition and minors seeking drugs for other medical purposes. That line is subject to rational-basis review.
Relatedly, Prelogar is also wrong to object to Tennessee’s declared interest in “encouraging minors to appreciate their sex” and in prohibiting treatments “that might encourage minors to become disdainful of their sex.” Prelogar contends that Tennessee is seeking to promote “stereotypic notions” about gender. But as I have explained, there is no reason to read Tennessee’s interest so narrowly and tendentiously:
One good reason to “encourag[e] minors to appreciate their sex” is to ensure that they understand that they have a natural capacity to become fathers and mothers—“to develop into adults who can create children of their own,” as the same findings state—and to spare them from the damage to that natural capacity that genital mutilation, puberty blockers, and cross-sex hormones can entail. That purpose is entirely compatible with an expansive, indeed unconstrained, view of how boys and girls “look and live.” Nothing in it remotely suggests how boys and girls should dress or how long their hair should be or what games they should play. Instead, it is transgender ideology that advances the stereotypes that a girl, in order to be a “transgender boy,” must, say, deepen her voice and that a boy, in order to be a “transgender girl,” must develop breasts.