The Constitution protects transgender people. The Supreme Court may have other ideas

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The Constitution protects transgender people. The Supreme Court may have other ideas

If the United States Supreme Court ordinary court apply long-standing principles and precedents to topical issues, United States v. Skrmetti, which asks the justices to decide whether Tennessee’s wholesale ban on gender-affirming health care for teens is unconstitutional, would be an easy case. No, the debate does not require them to consider whether this care is good or bad policy, address the science behind it or even take sides in a political or social debate. and healthcare has electrified Washington, our national politicsand the Democratic Party still at sea about how to respond to this moment. The dispute does not even call for them to repeal the ban.

At its most basic, this case simply asks the Supreme Court – to borrow the opinion of the Justice. Elena Kagan—act as a court. And here, the court has only one problem before it: deciding whether the law prohibits parents, in consultation with a doctor, from seeking puberty blockers, hormone therapy and other whether other treatment for their child’s gender dysphoria constitutes prohibited sex discrimination. The Constitution guarantees equality before the law.

If so, that is all that needs to be decided. “We think the Court here should simply recognize the sex-based classification in this statute and remand the case,” Elizabeth Prelogar, outgoing attorney general of the Department of Justice, speak judges on Wednesday. She was work long enough to know you can’t ask for too much this court. And so she threaded the needle carefully—patiently answering Justice’s questions Samuel Alito on how European countries deal with the care of transgender minors; from the Chief Justice John Roberts about “evolving standards” of treatment in this area; and from Justice Brett Kavanaugh About any potential impact on girls’ sports, as well as the Constitution’s supposed neutrality on an issue that should be left to the democratic process.

“The Constitution takes no side in resolving that health care and policy debate,” Kavanaugh insisted, repeating his own reflections when he voted to overrule Roe v. Wade. “The Constitution is neutral on this issue.” Prelogar was ready for that: “Well, I think the Constitution says that individuals have the right to equal protection of the law.”

Indeed, the reason we have the 14th Amendment in the first place is to check the democratic process itself – to prevent democratically elected governments from singling out their own citizens because of race, gender, or sex. their or some other so-called. immutable properties. When the federal appeals court lucky Tennessee experiment against transgender youth last year, judge dissents, White Helene—an appointed person George W. Bush— explains clearly how her colleagues were lost on this point. “In its normal course, the Constitution treats the states as laboratories of democracies that variously resolve the controversies of the day,” White wrote. “But when it comes to fundamental rights or freedom from discrimination, testing has no place.” In other words, just because you just won a majority in a free and fair election doesn’t mean you can only target certain people or groups for sport. Does that ring a bell?

For decades, starting in the 1970s, black laws dictated policies that discriminated against men or women. strengthen supervision—an analysis that asks judges to scrutinize laws that single out a person’s gender for differential treatment. Before becoming a justice, Ruth Bader Ginsburg was an important legal architect behind this line of cases—reaches its climax a milestone in 1996written by Ginsburg herself, asserted once and for all that “generalizations” and “stereotypes” about women’s proper place in society could no longer justify policies that made them worse.