We’ve already seen (in two posts by Christopher Mills and me) that the Solicitor General can’t coherently maintain that Tennessee’s law facially discriminates on the basis of sex. Here I would like to address an additional fatal defect in the Solicitor General’s position—namely, her contention that the treatments for gender dysphoria in children that the Tennessee law prohibits are the “exact same treatments” that Tennessee allows “when prescribed for any other purpose.” (SG Brief at 15.)
For starters, it is bizarre to speak of a treatment in isolation from its medical purpose. The very concept of treatment invites the question treatment for what? You might well say that a D&C after miscarriage involves the same procedure as a D&C for abortion, but it would be very weird to say that they are the “exact same treatments.”
The Solicitor General’s wordplay ignores the actual medical conditions for which Tennessee allows hormone therapy and puberty blockers, and instead abstracts to the concepts of “masculinizing” or “feminizing” a child’s body. Under this wordplay, a woman who has a double mastectomy as treatment for breast cancer is “masculinizing” herself in the same way as a girl who has a double mastectomy for gender dysphoria.
It’s simply not the case that hormone therapy for, say, a boy with delayed puberty is the “exact same treatment[]” as cross-sex hormones for a girl who wants to masculinize herself. Yes, both involve administering testosterone. But there are some large differences:
- Testosterone therapy for a boy with delayed puberty cures a physical abnormality and helps to ensure his healthy fertility. Testosterone to treat a girl’s gender dysphoria causes physical abnormalities: It “can cause lifelong infertility.” It “induces severe hyperandrogenism that can cause clitoromegaly, atrophy of the lining of the uterus and vagina, irreversible vocal cord changes, blood-cell disorders, and increased risk of heart attack.” And it poses risks of “liver dysfunction, coronary artery disease, cerebrovascular disease, hypertension, and breast or uterine cancer.” (Tennessee brief, at 6 (citations omitted).)
- For a boy with delayed puberty, small doses of testosterone—50 to 100 mg per month— are typically required for a period of several months. For a girl with gender dysphoria, the doses that would be pumped into her body progressively increase to 50-100 mg per week and would continue for the rest of her life. The methods of delivery are also different: intramuscular versus subcutaneous injection.*
To compound the confusion, the Solicitor General even argues in her reply brief that boys, in the absence of physical abnormality or other medical condition, can freely obtain “medications to cause the development of masculine characteristics.” (Reply, at 4-5.) And in case there was any doubt that’s what she meant, at oral argument she embraced Justice Jackson’s erroneous contention that under Tennessee law a boy who wants “to take [a] medication to affirm their [sic] gender as a male because the medication deepens their voice …. can get that medication.” [Transcript 68:15-69:2.] But, as Tennessee’s solicitor general explained, Tennessee law would not enable a doctor to prescribe a drug to a boy for the nontherapeutic purpose of deepening his voice. (Under Tenn. Code § 63-6-214(a)(12)), doctors may be punished for dispensing or prescribing drugs where the purpose is “not to cure an ailment, physical infirmity or disease.”)
Bottom line: The Solicitor General is flat wrong in her core claim that the treatments for gender dysphoria in children that the Tennessee law prohibits are the “exact same treatments” that Tennessee otherwise allows.
* I draw here on the sources that the SG cites in footnote 1 of her reply brief. The SG contends in that footnote that treatment for gender dysphoria does not involve “‘different dosages’ than other uses of the relevant medications,” but the sources she cites refute her.