Ed Whelan’s Extensive Commentary on United States v. Skrmetti

Published December 4, 2024

National Review Online - Bench Memos

By Edward Whelan

Over a period of months, EPPC Distinguished Senior Fellow Ed Whelan has written extensively about United States v. Skrmetti, the case, argued December 4, in which the Supreme Court will be deciding whether a Tennessee law that prohibits administering puberty blockers and cross-sex hormones as treatment for minors with gender dysphoria violates the Equal Protection Clause. Mr. Whelan’s posts have been published on National Review Online’s Bench Memos blog.

Stemming the Transgender Flood 

July 31, 2004 

In next term’s big case of United States v. Skrmetti, the Biden administration is inviting the Supreme Court to concoct a new rule that laws affecting individuals who identify as transgender are subject to heightened scrutiny under the Equal Protection Clause. If the Court commits the gross folly of accepting that invitation, it will spend the next two decades dealing with the consequences, sorting through the hornet’s nest of impenetrable disputes over whether countless laws and policies are “substantially related to an important state interest”: 

May states bar certain medical treatments for gender dysphoria in adolescents? The Biden administration has recently said that it opposes surgeries (even as it scrambled, in response to political pressure, to say that it opposes laws that bar such surgeries) but it supports puberty blockers and cross-sex hormones (even as it makes wildly false claims about the supposed evidence for these treatments). How are courts to discern a line that the Constitution supposedly draws? What happens as new evidence develops? 

May public schools assign restrooms by sex? If not, may they assign showers and locker rooms by sex? Does it depend, say, on whether the showers are single stall? Or whether they have curtains? Or whether the curtains also protect a changing area? On overnight trips, may public schools assign roommates by sex? May public colleges assign dorm rooms by sex? 

May public schools and colleges preserve girls’ and women’s sports? Does it depend on whether the sport involves physical contact? Does getting slammed in the head by a volleyball count? Does it depend whether a male who wants to take part in girls’ or women’s sports took puberty blockers and cross-sex hormones beginning at a certain age? Does it depend (as one version of International Olympic Committee rules provided) on whether he can demonstrate that his total testosterone level in serum has been below 10 nmol/L for at least 12 months? Does it depend whether the boy hasn’t yet undergone puberty? Does it depend whether he is winning competitions and defeating top female athletes? 

Must health-insurance plans for public employees cover medical treatments for gender dysphoria? Must they cover surgeries? What should the deductible be, and what caps may apply? Must “de-transitioning” treatments also be covered? How about if an individual has a third round of surgery to undo the effects of undoing the first round? 

May male prisoners who identify as female be housed in prisons for men? Does it depend whether they’ve had their genitalia lopped off? Or whether their testosterone is below a certain level? Do they have a right to transgender medical treatments? What process must be used to answer that question? What happens as new evidence develops? If they are housed in prisons for women, do they have a right to share a cell with female prisoners? 

I’ve written this list in just a few minutes, and I’m sure it’s very incomplete. The only sensible approach, and the constitutionally sound approach, is to leave these matters to legislators and policymakers to address and sort out over time. 

Solicitor General’s ‘Overwhelming’ Nonsense on Transgender Medical Interventions—Part 1 

July 26, 2024  

As I noted a month ago, the Supreme Court has granted the Solicitor General’s certiorari petition in United States v. Skrmetti. At issue is a Tennessee law that bars health-care providers from administering certain medical procedures for children with gender dysphoria. The procedures that are prohibited are surgically removing or modifying tissues, cavities, or organs (e.g., chopping off breasts or genitals) and administering puberty blockers or cross-sex hormones. Solicitor General Elizabeth Prelogar contends that the Tennessee law violates the Equal Protection Clause of the Fourteenth Amendment. 

SG Prelogar’s argument rests heavily on her contention that “overwhelming evidence establishes that appropriate gender-affirming treatment with puberty blockers and hormones directly and substantially improves the physical and psychological wellbeing of transgender adolescents with gender dysphoria.” (Emphasis added.) But that contention was not true when the SG filed her certiorari petition last November. And developments since then make it crystal clear that Prelogar would be lying to the Court if she dares to repeat that contention in her merits brief. 

Let’s start with some of those recent developments: 

1. In April 2024, Dr. Hilary Cass published the Cass Review, a comprehensive 388-page report commissioned by England’s National Health Service. Over the course of four years, Dr. Cass commissioned nine systematic evidence reviews, assessed clinical guidelines, and reviewed data from NHS’s (now terminated) Tavistock Centre on pediatric gender care. 

The Cass Review bluntly concludes that there is “remarkably weak evidence” that might weigh in favor of medical interventions on children and young people: “The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress.” (Emphasis added.) 

Among its many findings: 

• “The systematic review showed no clear evidence that social transition in childhood has any positive or negative mental health outcomes, and relatively weak evidence for any effect in adolescence.” 

• On puberty blockers: “[N]o changes in gender dysphoria or body satisfaction were demonstrated. There was insufficient/inconsistent evidence about the effects of puberty suppression on psychological or psychosocial wellbeing, cognitive development, cardio-metabolic risk or fertility.” 

• On cross-sex hormones: “There is a lack of high-quality research assessing the outcomes of hormone interventions in adolescents with gender dysphoria/incongruence, and few studies that undertake long-term follow-up. No conclusions can be drawn about the effect on gender dysphoria, body satisfaction, psychosocial health, cognitive development, or fertility. Uncertainty remains about the outcomes for height/growth, cardiometabolic and bone health. There is suggestive evidence from mainly pre-post studies that hormone treatment may improve psychological health, although robust research with long-term follow-up is needed.” (Quoting University of York “systematic review.”) 

2. WPATH (the World Professional Association for Transgender Health)—the organization that has aggressively promoted transgender medical interventions on children and that has been treated as a reliable authority by many judges—has been exposed and discredited as thoroughly politicized. As journalist Jesse Singal explains in “Unsealed Court Documents Show That Admiral Rachel Levine Pressured WPATH To Remove Age Guidelines From The Latest Standards Of Care,” there is strong evidence that WPATH eliminated its minimum age requirements for various medical interventions in response to pressure from a Biden administration official (and transgender activist). More broadly, discovery in a case in Alabama has revealed (as Alabama’s motion for summary judgment states and extensively supports) that WPATH: 

• violated multiple international standards for the creation of clinical guidelines that WPATH itself claimed to follow in Standards of Care 8 (“SOC-8”); 

• restricted the ability of SOC-8’s evidence review team to publish the systematic evidence reviews finding scant evidence for transitioning treatments; 

• intentionally used SOC-8 as a political and legal document to increase coverage for transitioning treatments and advance WPATH’s political goals; 

• caved to outside political pressure by Admiral Rachel Levine and others to remove age minimums for hormones and surgeries in SOC-8; and 

• “muzzle[d]” WPATH members who tried to inform the public of their concerns over pediatric transitioning treatments. 

But even at the time she filed her certiorari petition, SG Prelogar had ample reason to know that her assertion of “overwhelming evidence” was untrue. Dr. Cass’s interim report, published in March 2022, “highlighted major gaps and weaknesses in the research base underpinning the clinical management of children and young people with gender incongruence and gender dysphoria, including the appropriate approaches to assessment and treatment.” That interim report “highlighted that little is known about the medium- and longer-term outcomes for children and young people receiving NHS support and/or treatment” for gender dysphoria. (I’m quoting what the Cass Review says about the interim report.) 

Further, way back in 2020, the head of the John Hopkins evidence review team that WPATH itself commissioned reported to HHS that it “found little to no evidence about children and adolescents.” HHS wrote back: “Knowing that there is little/no evidence about children and adolescents is helpful.” (See Alabama’s motion for summary judgment, p. 16.) 

The SG’s petition is remarkably shoddy in its supposed support for its assertion of “overwhelming evidence.” SG Prelogar cites three pages (Pet. App. 194a-197a) from the district judge’s opinion, but in those pages the district judge offers evidence that is far from “overwhelming” and is generally very hedged: one doctor’s testimony about her own patients, another doctor’s testimony about what “the available evidence indicates,” the judge’s own assertion that the second doctor’s testimony “is consistent with” WPATH Guidelines as to what studies “suggest” about how some symptoms “tend to” improve, and an assertion of mere correlation (“was associated with”). 

Perhaps most strikingly, SG Prelogar purports to quote the district judge as flatly declaring that administering puberty blockers and cross-sex hormones to children with gender dysphoria “lowers rates of depression, suicide, and additional mental health issues” when in fact the judge says only that “the weight of evidence in the record suggests” such effects. 

We shall see if SG Prelogar does a much better job of living up to her responsibilities to the Court when she files her merits brief or if she will instead continue to deceive the Court in service of the Biden administration’s ideological agenda. 

Solicitor General’s ‘Overwhelming’ Nonsense on Transgender Medical Interventions—Part 2 

August 7, 2024  

More on United States v. Skrmetti, the big case on the Supreme Court’s docket next term in which the Biden administration is arguing that a Tennessee law that bars health-care providers from administering certain medical procedures for children with gender dysphoria violates the Equal Protection Clause. 

In my Part 1 post, I examined Solicitor General Elizabeth Prelogar’s claim in her certiorari petition that “overwhelming evidence establishes that appropriate gender-affirming treatment with puberty blockers and hormones directly and substantially improves the physical and psychological wellbeing of transgender adolescents with gender dysphoria.” (Emphasis added.) As I showed, that claim wasn’t true when the SG filed her certiorari petition last November, and developments since then make it crystal clear that Prelogar would be lying to the Court if she dares to repeat that contention in her merits brief. 

Prelogar uses the adjective “overwhelming” on two other occasions in her certiorari petition and once in her reply brief. In all three instances, she claims that treating minors with puberty blockers and cross-sex hormones is supported by “the overwhelming consensus of the medical community.” Once again, her claim is overwhelming nonsense—false when she made it and in direct contradiction of what is instead a strong and clear international consensus developing against such treatments. 

1. As Dr. James M. Cantor spells out in this declaration, there is a “growing international trend against the medicalized transition of minors”: 

• Twenty years ago, Sweden permitted minors to receive puberty blockers at age 14 and cross-sex hormones at age 16. In 2019, a Swedish health agency conducted a systematic review of the evidence and found that its review “suggests that long-term effects of hormone therapy on psychosocial and somatic health are unknown.” In 2021, the leading Swedish pediatric gender clinic stated that treatments of puberty blockers and cross-sex hormones “are potentially fraught with extensive and irreversible adverse consequences such as cardiovascular disease, osteoporosis, infertility, increased cancer risk, and thrombosis.” In a dramatic reversal, it decided that it would no longer administer puberty blockers and cross-sex hormones to patients under the age of 16 and that patients ages 16 to 18 would receive such treatments only in research settings.” In 2022, the Swedish National Board of Health and Welfare concluded that, “[f]or adolescents with gender incongruence, the . . . risks of puberty suppressing treatment with GnRH-analogues and gender-affirming hormonal treatment currently outweigh the possible benefits.” 

• In 2020, Finland’s health-care service “greatly restricted access to puberty-blocking and cross-sex hormonal treatments, explicating that they may be considered for minors ‘only if it can be ascertained that their identity as the other sex is of a permanent nature and causes severe dysphoria,’ and only ‘if the need for it continues after [any] other psychiatric symptoms have ceased and adolescent development is progressing normally.’” (Dr. Cantor’s italics.) Any such procedures may take place only in “centralized research clinics.” Finland’s health-care service also emphasized the “need for more information on the disadvantages of procedures and on people who regret them.” 

• In 2022, France’s Académie Nationale de Médecine warned that cross-sex hormones have “many undesirable effects, and even serious complications, …such as impact on growth, bone fragility, risk of sterility, emotional and intellectual consequences and, for girls, symptoms reminiscent of menopause.” It concluded that “the greatest reserve is required in their use.” 

• In 2023, Norway’s Health Investigation Board concluded that “The knowledge base, especially research-based knowledge for gender-affirming treatment (hormonal and surgical), is insufficient and the long-term effects are little known” and that “This applies particularly to the teenage population.” 

• On May 29, 2024, consistent with the Cass Review that I highlighted in my Part 1 post, the UK government issued an “emergency ban” on all new prescriptions of puberty blockers to minors by any physician, public or private, across England, Scotland, and Wales. A month earlier, a house editorial in the British Medical Journal (among the most respected medical journals in the world) bluntly declared that the “evidence base for interventions in gender medicine is threadbare” and that “[o]ffering treatments without an adequate understanding of benefits and harms is unethical.” 

2. Any contention that there might be a “consensus” of the American medical community in support of puberty blockers and cross-sex hormones for minors raises a host of troubling questions. Why would such a consensus exist in the face of the contrary evolving international consensus and of the “remarkably weak evidence” (per Cass Review) for such treatments? Isn’t it troubling that WPATH, the organization that has aggressively promoted transgender medical interventions on children and that has been treated as a reliable authority by American medical associations, has been exposed and discredited as thoroughly politicized? (See point 2 of Part 1 post.) What reason is there to believe that the positions set forth by medical associations in group amicus briefs (rather than in formal policy statements adopted after review of the evidence) reflect the considered scientific assessment of those associations rather than the bullying of political activists? 

Solicitor General’s Rhetorical Retreat on Transgender Interventions Masks Persisting Distortions 

September 3, 2024 

To answer my question from last week: In the Biden administration’s opening merits brief in United States v. Skrmetti, Solicitor General Elizabeth Prelogar has abandoned the two propositions of “overwhelming” nonsense that she set forth in her certiorari petition—namely, that (1) “overwhelming evidence establishes that appropriate gender-affirming treatment with puberty blockers and hormones directly and substantially improves the physical and psychological wellbeing of transgender adolescents with gender dysphoria,” and (2) that “the overwhelming consensus of the medical community” supports administering puberty blockers and cross-sex hormones to minors. But while she has retreated from her outlandish rhetoric, she continues to hinge her legal claims on factual assertions that are false. 

Prelogar now asserts: “Medical evidence and clinical experience demonstrate that such care [i.e., puberty blockers and cross-sex hormones], provided in appropriate cases, meaningfully improves the health and wellbeing of transgender adolescents with gender dysphoria.” She objects that Tennessee “rejected the medical consensus” on such treatments. 

1. Prelogar conspicuously fails even to mention, much less grapple with, the findings of the Cass Review, the comprehensive 388-page report commissioned by England’s National Health Service. Over the course of four years, Dr. Hilary Cass commissioned nine systematic evidence reviews, assessed clinical guidelines, and reviewed data from NHS’s (now terminated) Tavistock Centre on pediatric gender care. 

The Cass Review bluntly concludes that there is “remarkably weak evidence” that might weigh in favor of medical interventions on children and young people: “The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress.” (Emphasis added.) 

Among its many findings: 

• “The systematic review showed no clear evidence that social transition in childhood has any positive or negative mental health outcomes, and relatively weak evidence for any effect in adolescence.” 

• On puberty blockers: “[N]o changes in gender dysphoria or body satisfaction were demonstrated. There was insufficient/inconsistent evidence about the effects of puberty suppression on psychological or psychosocial wellbeing, cognitive development, cardio-metabolic risk or fertility.” 

• On cross-sex hormones: “There is a lack of high-quality research assessing the outcomes of hormone interventions in adolescents with gender dysphoria/incongruence, and few studies that undertake long-term follow-up. No conclusions can be drawn about the effect on gender dysphoria, body satisfaction, psychosocial health, cognitive development, or fertility. Uncertainty remains about the outcomes for height/growth, cardiometabolic and bone health. There is suggestive evidence from mainly pre-post studies that hormone treatment may improve psychological health, although robust research with long-term follow-up is needed.” (Quoting University of York “systematic review.”) 

The Cass Review vindicates the judgment of the Tennessee legislature, which (among other things) cited “health authorities in Sweden, Finland, and the United Kingdom” that “have found no evidence that the benefits of these procedures [for minors] outweigh the risks.” 

2. Even more amazingly, Prelogar invokes the supposed “evidence-based guidelines” issued by WPATH (World Professional Association for Transgender Health), which she says “[t]he Nation’s leading medical and mental health organizations recognize … as reflecting the accepted standard of care for treating gender dysphoria.” She thus would try to blind the justices to the fact that WPATH has been exposed and discredited as thoroughly politicized. 

As journalist Jesse Singal explains in “Unsealed Court Documents Show That Admiral Rachel Levine Pressured WPATH To Remove Age Guidelines From The Latest Standards Of Care,” there is strong evidence that WPATH eliminated its minimum age requirements for various medical interventions in response to pressure from a Biden administration official (and transgender activist). More broadly, discovery in a case in Alabama has revealed (as Alabama’s motion for summary judgment states and extensively supports) that WPATH: 

• violated multiple international standards for the creation of clinical guidelines that WPATH itself claimed to follow in Standards of Care 8 (“SOC-8”); 

• restricted the ability of SOC-8’s evidence review team to publish the systematic evidence reviews finding scant evidence for transitioning treatments; 

• intentionally used SOC-8 as a political and legal document to increase coverage for transitioning treatments and advance WPATH’s political goals; 

• caved to outside political pressure by Admiral Rachel Levine and others to remove age minimums for hormones and surgeries in SOC-8; and 

• “muzzle[d]” WPATH members who tried to inform the public of their concerns over pediatric transitioning treatments. 

There is no reason to believe that the positions set forth by medical associations in group amicus briefs (rather than in formal policy statements adopted after review of the evidence) reflect the considered scientific assessment of those associations rather than the bullying of political activists. But insofar as there can be said to be an American “medical consensus” that sharply departs from the international practice (see point 1 here), why should Tennessee be obligated to respect such a consensus, especially when its origins are so suspect? 

*** 

Beyond their unsound factual predicate, the Solicitor General’s legal claims are badly flawed in plenty of other ways. I look forward to addressing them. 

 
Tennessee’s Legitimate Interest in ‘Encouraging Minors to Appreciate Their Sex’ 

September 4, 2024 

Among the many defects in the Solicitor General’s merits brief in United States v. Skrmetti is her distorted attack on Tennessee’s declared interest in “encouraging minors to appreciate their sex.” The SG actually concedes that Tennessee’s law against transgender medical interventions on minors is “perfectly crafted to serve [this] interest.” But she contends that the interest is “illegitimate” because it supposedly “rests on ‘stereotypic notions’ about gender.” 

As we shall see, Tennessee’s declared interest in “encouraging minors to appreciate their sex” does not in fact rest on any “stereotypic notion” about gender. On the contrary, it is transgender ideology that is built on stereotypes about what it means to live as a man or as a woman. As Vanita Gupta, a leading transgender ideologue in the Department of Justice in both the Obama and Biden administrations, has put it: 

Transgender men [i.e., women who identify as men] are men — they live, work and study as men. Transgender women [i.e., men who identify as women] are women — they live, work and study as women. [Emphasis added.] 

It’s impossible to even begin to make sense of Gupta’s statement without adopting stereotypes of what it means to “live, work and study as men” and to “live, work and study as women.” 

Relatedly, DSM-5 (the Diagnostic and Statistical Manual of Mental Disorders)—the reference book published by the American Psychiatric Association—incorporates stereotypes into its criteria for diagnosing gender dysphoria in children: 

• “A strong preference for the toys, games, or activities stereotypically used or engaged in by the other gender.” 

• “In boys (assigned gender), a strong rejection of typically masculine toys, games, and activities and a strong avoidance of rough-and-tumble play; or in girls (assigned gender), a strong rejection of typically feminine toys, games, and activities.” 

• “A strong preference for cross-gender roles in make-believe play or fantasy play.” 

By contrast, the SG has to concoct Tennessee’s supposed “stereotypic notions.” On a remarkable ten occasions, the SG quotes Tennessee’s stated interests in “encouraging minors to appreciate their sex” and in prohibiting treatments “that might encourage minors to become disdainful of their sex.” She asserts that these interests embody an illegitimate purpose of “encouraging boys and girls to look and live like boys and girls.” (Internal quote omitted.) But 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. 

More broadly, what is really at stake—as Texas justice James Blacklock explains in his excellent recent opinion—is an unresolvable metaphysical clash between two fundamentally different understandings of what it means to be male and female. Under what Blacklock labels the “Traditional Vision,” “a boy is a boy, a girl is a girl, and neither feelings and desires nor drugs and surgery can change this immutable genetic truth, which binds us all.” By contrast, under the “Transgender Vision,” whether a person is male or female depends on the person’s subjective “gender identity,” which might or might not correspond to the person’s biological sex. 

Tennessee’s interest in “encouraging minors to appreciate their sex” reflects the Traditional Vision, which has persisted throughout more than 200 years of American history and which was essentially unchallenged until the day before yesterday. The simple bottom-line issue in this case is whether Tennessee is allowed to continue to hold that vision. There is no neutral, middle-ground alternative. The only other alternative is to hold that the Constitution somehow requires that Tennessee adopt the Transgender Vision. 

Tennessee’s Response Brief in Skrmetti Transgender Case 

October 8, 2024 

The state of Tennessee today filed in the Supreme Court its excellent response brief in United States v. Skrmetti. In that case, the Biden administration is challenging a Tennessee law that prohibits healthcare providers from subjecting minors to so-called gender-transition interventions. 

I’ve already written extensively about the Solicitor General’s false claims about the supposed evidence in favor of such interventions, and I’ve also highlighted the hornet’s nest of impenetrable disputes that the Supreme Court would spend the coming decades trying to sort through if it were to commit the gross folly of concocting a new rule that laws affecting individuals who identify as transgender are subject to heightened scrutiny under the Equal Protection Clause. 

For present purposes, I will simply reproduce in the remainder of this post the introduction to Tennessee’s response: 

The Constitution vests politically accountable state officials with primary responsibility for protecting the public health and welfare. With such power has always come wide discretion to regulate medical practices, particularly in areas of scientific uncertainty. That legislative leeway enables differing approaches to evolving medical disputes. This case asks whether the Equal Protection Clause requires courts to short-circuit democratic resolution of one such dispute— the appropriateness of providing life-altering gender-transition procedures to minors. 

In recent years, there has been a rapid rise in the provision of puberty blockers, hormones, and surgeries to transgender-identifying youth. Traditionally, most U.S. doctors declined to provide these interventions to minors. But following the lead of several European countries, the practice exploded in the 2010s. Over time, though, many of the European countries that pioneered these interventions have pulled back, restricting minors’ access based on safety and efficacy concerns. 

So when media reports flagged a Tennessee hospital performing gender-transition interventions on minors, lawmakers examined this live medical dispute. The Tennessee legislature surveyed systematic reviews, took stock of tightened restrictions in Europe, and heard firsthand accounts of regret and harm from detransitioners. The legislature then passed SB1 to restrict pharmaceutical and surgical interventions for gender transition until a person turns 18. Twenty-three other States have adopted similar protections. 

The federal government seeks to displace Tennessee’s legislative judgment by reading its preferred policies into the Constitution. But the Equal Protection Clause does not commission this Court as the nation’s “ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.” Planned Parenthood v. Danforth, 428 U.S. 52, 99 (1976) (White, J., concurring and dissenting in part). It protects against discriminatory classifications, and SB1 contains none. 

SB1 includes no sex classification. It draws a line between minors seeking drugs for gender transition and minors seeking drugs for other medical purposes. And boys and girls fall on both sides of that line. 

With no claim under the existing framework, the government seeks a novel path to heightened review under Bostock v. Clayton County, 590 U.S. 644 (2020). But constitutionalizing Bostock’s but-for-sex test would defy this Court’s equal-protection precedents, distort Bostock’s Title VII-centric reasoning, and perversely permit use of sex-based scrutiny to roll back women’s rights. This Court should decline that doctrinal revolution, especially because sex is not a but-for cause of SB1’s age- and use-based restrictions. 

Nor should this Court break new ground by striking down SB1 on a transgender-discrimination theory. SB1 does not classify based on transgender status. And the government’s cursory argument for heightened review fails to justify expanding this Court’s limited list of quasi-suspect classifications for the first time in half a century. 

SB1 is subject to—and easily satisfies—rational-basis review. It passes constitutional muster under any standard. The government insists that SB1 bucks a “medical consensus” on gender-transition interventions for minors. But that account altogether ignores the risk-benefit assessment of European health authorities and discounts the good-faith decisions of half the States in this country. Willful ignorance of conflicting medical views cannot erase the unknowns. And this Court grants “state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty”—even in heightened-review cases. Gonzales v. Carhart, 550 U.S. 124, 163 (2007). While the government is free to favor its transition-first, ask-questions-later approach, the Constitution does not bind Tennessee to that same choice. 

This case involves a routine exercise of state power that touches on a controversial topic. But not every contentious social issue calls for a constitutional override. The Sixth Circuit should be affirmed. 

WPATH’S Eunuchs 

October 16, 2024 

Eunuchs, indeed. Both figurative and self-identified. That’s the shocking scandal of WPATH—the World Professional Association of Transgender Health—that the state of Alabama exposes in its powerful amicus brief in United States v. Skrmetti (and that I have addressed in previous posts). 

The legal question that the Supreme Court will decide in Skrmetti is whether a Tennessee law that bars health-care providers from administering puberty blockers and cross-sex hormones to children as treatment for gender dysphoria violates the Equal Protection Clause. In leading the crusade against Tennessee’s law, the Biden administration relies squarely on WPATH’s supposed “evidence-based guidelines for the treatment of gender dysphoria,” guidelines it says that the “Nation’s leading medical and mental health organizations recognize … as reflecting the accepted standard of care for treating gender dysphoria.” 

In separate litigation in defense of its similar law, the state of Alabama has uncovered the “medical, legal, and political scandal” of WPATH’s guidelines. It lays out that scandal in its amicus brief. 

Let’s start with the figurative eunuchs, the men and women in the world of science who were supposed to have the courage and integrity to speak accurately about the evidence bearing on transgender interventions on minors but who instead made or acquiesced in changes to WPATH’s proposed guidelines for political reasons. 

As Alabama documents in its brief (pp. 10-23), WPATH developed its guidelines (SOC-8) as a political and legal weapon rather than as medical advice. Its goal, as one WPATH author put it, was to provide “a tool for our attorneys to use in defending access to care.” HHS assistant secretary (and transgender ideologue) Rachel Levine “met regularly with WPATH leaders.” Levine’s office objected strenuously to a draft that listed “specific minimum ages for treatment” on the ground that it would “result in devastating legislation for trans care.” Levine asked WPATH leaders to remove the age recommendations. WPATH initially told Levine that it could not do so because those recommendations had already been approved by its vaunted consensus process. But after the American Academy of Pediatrics threatened to oppose the guidelines if the age recommendations remained in, WPATH caved. And it did so without running that major change through the process that it falsely claimed to have used for the entire guidelines. It then tried to cover up what it had done. 

In plenty of other respects as well (see pp. 24-34), WPATH did not abide by the principles of evidence-based medicine that it claimed to follow. Ignoring standards governing conflicts of interest, it limited participation in writing the new guidelines to individuals who were already enthusiastic about transitioning treatments, including one doctor who acknowledged making “more than a million dollars” from transitioning surgeries in the previous year. It obscured significant differences in the supposed strength of its various recommendations, and it prevented its own evidence-review teams from publishing unwelcome findings—e.g., that the researchers into the effectiveness of various types of interventions “found little to no evidence about children and adolescents.” WPATH instead mandated that any publications “use the Data for the benefit of advancing transgender health in a positive manner.” 

As Alabama points out (pp. 34-36), an entire chapter in WPATH’s new guidelines on those who identify as “eunuchs” illustrates “how unscientific the SOC-8 enterprise was”: “Because eunuchs ‘wish for a body that is compatible with their eunuch identity,’ WPATH recommends ‘castration to better align their bodies with their gender identity.” 

And how, Alabama asks rhetorically, did WPATH determine that castration is “medically necessary gender-affirming care”? The answer is astonishing and completely discrediting: 

From the internet—specifically a “large online peer-support community” called the “Eunuch Archive.” According to SOC-8 itself, the “Archive” contains “the greatest wealth of information about contemporary eunuch-identified people.” The guideline does not disclose that part of the “wealth” comes in the form of the Archive’s fiction repository, which hosts thousands of stories that “focus on the eroticization of child castration” and “involve the sadistic sexual abuse of children.” “The fictional pornography” “includes themes such as Nazi doctors castrating children, baby boys being fed milk with estrogen in order to be violently sex trafficked as adolescents, and pedophilic fantasies of children who have been castrated to halt their puberty.” [Emphasis added.] 

Justice Gorsuch, Bostock, and Skrmetti 

November 12, 2024 

Some folks seem to think that Justice Gorsuch’s majority opinion in Bostock v. Clayton County (2020) means that the Court should rule in United States v. Skrmetti that laws affecting individuals who identify as transgender are subject to heightened scrutiny under the Equal Protection Clause. The Court ruled in Bostock that Title VII’s ban on discrimination “because of … sex” prohibits discrimination on the basis of transgender status, so, the thinking goes, it should rule that heightened scrutiny under the Equal Protection Clause for classifications based on sex extends to classifications based on transgender status. 

Let’s set aside for purposes of this post that the Tennessee law at issue in Skrmetti does not in fact classify on the basis of transgender status. (See Tennessee’s brief at 41-44.) Even if it did, the reasoning in Bostock cuts strongly and decisively against transplanting its Title VII holding into the Equal Protection Clause. 

Justice Gorsuch’s opinion in Bostock turns on the specific text of Title VII. Gorsuch holds that the phrase “because of … sex” in Title VII “incorporates the simple and traditional standard of but-for causation” (cleaned up). But-for causation “is established whenever a particular outcome would not have happened ‘but for’ the purported cause.” Gorsuch concludes that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Therefore, his reasoning goes, Title VII’s ban on discrimination “because of … sex” prohibits discrimination on the basis of sexual orientation and transgender status. 

But the text of the Equal Protection Clause is very different from the text of Title VII. In particular, the Equal Protection Clause does not contain the phrase “because of … sex” or any similar phrase that adopts a test of but-for causation. The Court, as Tennessee explains (pp. 32-35), “has never taken a but-for approach to equal-protection classifications.” It has, for example, never treated sexual-orientation discrimination as a form of sex discrimination for purposes of the Equal Protection Clause. 

Justice Gorsuch’s concurring opinion in Students for Fair Admissions v. Harvard (2023) emphatically rejects but-for causation under the Equal Protection Clause. Gorsuch observes that the phrase “on the ground of” in Title VI is “essentially identical” to the phrase “because of” in Title VII. Under Title VI and Title VII, “it is always unlawful to discriminate among persons even in part because of” the characteristics the laws protect. By contrast, the “such differently worded” Equal Protection Clause “addresses all manner of distinctions between persons.” Far from categorically prohibiting such distinctions (as a but-for test would), the Court has long held that the Equal Protection Clause “implies different degrees of judicial scrutiny for different kinds of classifications.” 

In sum, treating discrimination on the basis of transgender status as sex discrimination under the Equal Protection Clause would make a mockery of Bostock’s reasoning and, as Tennessee puts it, “would abrogate decades of equal-protection jurisprudence.” 

Trump’s Election, Skrmetti, and Party Adverseness 

November 8, 2024 

I had initially wondered whether Donald Trump’s election as our next president might lead to a deferral of the upcoming (December 4) oral argument in United States v. Skrmetti and ultimately to a dismissal of the case. I now think not. Let me explain why. 

Some quick background: In Skrmetti, the Biden administration is contending that a Tennessee law that bars health-care providers from administering puberty blockers and cross-sex hormones to children as treatment for gender dysphoria violates the Equal Protection Clause. As I have outlined in several posts, the Biden administration’s legal claims rest on outrageous misrepresentations of the medical evidence and on a refusal to acknowledge the shocking scandal that underlies WPATH’s supposed “evidence-based guidelines.” Plus, if the Court were to commit the gross folly of concocting a new rule that laws affecting individuals who identify as transgender are subject to heightened scrutiny under the Equal Protection Clause, it would spend the next two decades sorting through the hornet’s nest of impenetrable disputes that such a rule would present. 

President-elect Trump’s Department of Justice will surely repudiate the Biden administration’s position in this case and agree that the Sixth Circuit’s excellent ruling should be affirmed. But the private plaintiffs below, who have filed their own brief (in their capacity as respondents) in support of the Biden administration and who have even been granted oral-argument time, would remain as parties adverse to Tennessee. As Justice O’Connor summed it up in a different case a few years later, her majority ruling in Director of Office of Workers’ Compensation Programs v. Perini North River Associates (1983) “holds that, once a case is properly brought here, the case-or-controversy requirement can be satisfied even if the parties who are asserting their adverse interests before this Court are not formally aligned as adversaries.” In Perini just as here, the private party adverse to the defendant was nominally aligned with the defendant as a respondent in the Supreme Court. 

If there is any doubt about the soundness of that adverseness holding, the Court could at some point (either before or after DOJ reverses its position) simply grant review of question 1 in the private plaintiffs’ still-pending certiorari petition. There would be no reason for any further briefing. And, especially in the absence of a request by either the United States or Tennessee, there is similarly no reason to defer oral argument. 

Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.