Neither the Sixth Circuit nor SCOTUS is hospitable at present to the leftist leaps of fact, law, and logic necessary to rule in favor of this lawsuit.
For the latest episode in Merrick Garland turning the United States Department of Justice into a left-wing blog that continually attacks democracy in the states, consider its complaint filed Wednesday by the DOJ in the Middle District of Tennessee, joining a lawsuit against Tennessee’s law prohibiting the use of puberty blockers and other transgender medical procedures on minors. S.B. 1, the Tennessee law, is derived from two basic premises. One, like the bans in at least 22 states on “gay conversion therapy,” it reflects the state legislature’s determination that what proponents describe in Orwellian terms as “gender-affirming care” is dangerous quackery that the state can appropriately regulate or ban. Two, children and teenagers are legally incapable of consenting to this form of irrevocable change to their bodies, and, like the bans on female genital mutilation in 27 states, it is a sufficiently abusive practice that the legislature can step in to protect kids from having it foisted on them by adults, including their parents. There is a strong presumption in favor of letting parents make health decisions for their children, but it is not an unlimited license to conduct irreversible medical experiments on them — and a democratic system of government allows different states to make different choices about where to draw that line. Indeed, some states have passed laws that, in the same bill, ban gay conversion therapy while encouraging gender-transition treatments.
The DOJ lawsuit — filed, of course, by the Civil Rights Division under Kristen Clarke — argues that S.B. 1 violates the Equal Protection clause of the 14th Amendment. The suit has three separate problems.
The first problem is that it takes a whole bunch of highly contested assertions on one side of a series of live social and medical disputes and demands that the court treat them as sufficiently incontestable facts that no legislature could, constitutionally, disagree. It uses “sex assigned at birth” to describe what was, for all of human history until less than a decade ago, described simply as sex or gender. Thus, we are told that “Gender identity refers to a person’s core sense of belonging to a particular gender, such as male or female. Every person has a gender identity. Transgender people are people whose gender identity does not align with the sex they were assigned at birth.” It describes gender-transition treatments as “medically necessary.” Following these premises, the complaint alleges that SBI “denies necessary medical care to children based solely on who they are.” If the court doesn’t agree that this framing describes the only reality a legislature can permissibly believe in, the whole case collapses.
As the complaint concedes, the legislature reached its own conclusions about whether the treatments at issue were medically supported or abusive to children:
Legislative findings contained in SB 1 characterize gender-affirming medical procedures and treatments as “experimental in nature;” “not supported by high-quality, long-term medical studies;” “harmful;” “unethical;” “immoral;” and encouraging “minors to become disdainful of their sex.” Id. § 68-33-101(b), (m). In addition, the legislative findings identify several purported interests for adopting this law, including: “protecting minors from physical and emotional harm;” “protecting the ability of minors to develop into adults who can create children of their own;” “promoting the dignity of minors;” “encouraging minors to appreciate their sex, particularly as they undergo puberty;” and “protecting the integrity of the medical profession, including by prohibiting medical procedures that are harmful, unethical, immoral, experimental, or unsupported by high-quality or long-term studies, or that might encourage minors to become disdainful of their sex.” Id. § 68-33-101(m).
Are these really interests no legislature is permitted to consider? The complaint cites the American Psychiatric Association’s Diagnostic & Statistical Manual of Mental Disorders (“DSM-V-TR”) as “an authoritative source for psychiatric conditions,” ignoring how often the DSM has been revised — and politicized — over the years. Of course, unlike the Tennessee legislature, the authors of the DSM are neither representative of, nor accountable to, a democratic populace. Moreover, on transgender issues, there is a significant divide between the American medical establishment and the European medical establishment. I’m as rah-rah USA as the next guy, but when that happens, it’s at least reasonable to allow the democratic process to consider the possibility that the Americans are wrong. Once upon a time, the American medical profession refused to accept the European consensus that doctors should wash their hands.
The DOJ tries to thread the needle between invoking medical authority and allowing for ideological definitions of “gender identity”: “The American Psychiatric Association recognizes that not all transgender persons have gender dysphoria. A diagnosis of gender dysphoria is currently required in order to receive many forms of gender-affirming care, including puberty blockers and hormone therapy.” It then argues that “gender-affirming care . . . is widely recognized within the medical community as the only effective treatment for some individuals diagnosed with gender dysphoria.” But is this is the only constitutionally permissible rule?
Amusingly, the DOJ complaint tries to bolster its case against the Tennessee law by citing statements opposed to the bill by Gloria Johnson, the legislator whose insincere apology has set up a narrative that the Tennessee legislature is also racist.
The second problem is that the complaint asserts that “under the Equal Protection Clause, government classifications based on sex or on transgender status are subject to heightened scrutiny and are presumptively unconstitutional.” But this is highly contested: There is a live circuit split. The Supreme Court turned away a request for an emergency ruling on the question, in the women’s sports context, on April 6. The Sixth Circuit (in which Tennessee sits) has not directly weighed in yet. The Bostock decision, treating transgenderism as a protected class, was based on statutory language in Title VII of the Civil Rights Act of 1964 that doesn’t appear in the earlier-enacted 14th Amendment. In the Sixth Circuit’s 2021 decision in Meriwether v. Hartop, Judge Amul Thapar’s opinion upheld the free-speech rights of a state college professor to dissent from transgender orthodoxy, treating the question as a disputed political and social issue rather than one on which antidiscrimination laws permit but one answer. That doesn’t resolve this case, but it does suggest that the DOJ actually has to convince the court of its legal theory as well as its theories of medicine, childhood, and gender.
The third problem is that this is a curious fight for the DOJ to pick. The case is currently before Eli Richardson, a Trump appointee. Judge Richardson seems unlikely to put a heavy thumb on the scales in the DOJ’s favor at the fact-finding stage, as has traditionally happened when gay and transgender causes are pushing for path-breaking judicial decisions. Neither the Sixth Circuit nor the Supreme Court is all that hospitable at present to the ideologically leftist leaps of fact, law, and logic necessary to rule in favor of this lawsuit.