One lamentable, though legally inconsequential, feature of the Chief Justice’s otherwise strong opinion in United States v. Skrmetti is his confused and confusing use of jargon favored by transgender ideologues in this passage and at least one other:
When, for example, a transgender boy (whose biological sex is female) takes puberty blockers to treat his gender incongruence, he receives a different medical treatment than a boy whose biological sex is male who takes puberty blockers to treat his precocious puberty. [Emphasis added.]
Competent speakers of English would think that the term transgender boy, to the extent it has any coherent meaning, would mean a boy who is transgender—that is, a boy who identifies as female. The Chief Justice has to explain in a footnote that he is using the term “to refer to an individual whose biological sex is female but who identifies as male.”
The Chief’s confusion then leads him to use masculine pronouns for the biological female. I can see avoiding the pronoun issue altogether (and I don’t think it would have been difficult to do). But I don’t understand why the Chief makes this bow to transgender ideology.
Lincoln famously asked how many legs a dog has if you call a tail a leg. When someone would answer “five,” he’d explain that the correct answer is four because calling a tail a leg doesn’t make it one. Similarly, calling a girl who identifies as male a “transgender boy” doesn’t make her a boy of any sort.
I would hope that one or more of the justices who joined the Chief’s opinion accepted his transgender semantics only on the theory that the authoring justice gets a lot of deference on matters of style.
In modest defense of the Chief: At least he spells out what he means by the unnatural terms transgender boy and transgender girl. It’s astounding how many judges—yes, even very fine judges, like the members of the Seventh Circuit panel in this recent opinion—use those terms without doing so. And if you maintain that everyone understands what those terms mean, I’d be very surprised if you’re right.
As I’ve pointed out before, some very smart liberal judges have been discombobulated by these terms into thinking that “treat[ing] transgender girls differently from cisgender girls … is—literally—the definition of gender identity discrimination,” when such treatment actually differentiates on the basis of sex.