Madsplaining: U.S. v. Skrmetti

The SCOTUS case known as US vs Skrmetti is shaping up to be one of the most important of this term. The case was kicked off by the American Civil Liberties Union (ACLU) and a group of Tennessee parents, but it has been taken over by the Biden administration’s Department of Justice. The Court heard oral arguments last week and will hand down a decision next year.

At the heart of the case, is whether a Tennessee law, which bans transgender procedures and puberty blockers for children, violates the equal protection clause of the 14th Amendment. (See the SCOTUSblog site). The women arguing for the prosecution (one of them, bearded and claiming the title of the First Openly-Transgender Man to Argue Before the Supreme Court who also believes toddlers can choose their gender), say that because puberty blocking hormone treatments are given to children to slow the onset of precocious puberty, children experiencing gender dysphoria should also be allowed access to the same drugs for use as “cross sex” hormone treatments to “affirm their gender”. To not allow the drugs intended for girls to be taken by boys and vice versa, they argue, amounts to discrimination on the basis of sex.

If that sounds bonkers to you, then congratulations, you’re sane. Those representing Tennessee followed two main lines of reasoning. Tennessee Solicitor General James Rice pointed out that discrimination in handing out drugs is not on basis of the child’s sex but about “parameters around age- and use-specific regulations”. The defence also argued that the potential harm to many children outstripped whatever benefit may be gleaned by a few. Damage, not only from the drugs themselves but also from minors making irreversible changes to their bodies was too great to be countenanced.

All told, the mood of the Court majority seemed one of reluctance to rule from the bench, especially on medical matters. Court watchers believe it is likely that SCOTUS will eventually uphold Tennessee’s law, which is similar to laws in 25 other states. However, the case has brought the debate about sex and gender to a national spotlight, which has been a long time coming. Culture warriors such as Matt Walsh have been doing a great job of highlighting gender nonsense but Skrmetti has also put sound reasoning about the reality of sex differences on display.

The liberal women on the Court showed their progressive colors, showcasing the most glib and maddening reasons deployed in favor of “transitioning” children:

A pre-teen boy with "unwanted hair" is sort of like a gender dysphoric girl with "unwanted breasts”

Banning pediatric gender medicine is like banning boys from wearing dresses or girls from wearing pants.

Banning transgender procedures from minors is much like Jim Crow and prohibitions against interracial marriage, really.

Every medical treatment has a risk, even aspirin.

Justice Alito pushed back. Contemplating the equal protection clause, riddle me this: if a person can identify as one sex and then another at a later time, how can a transgender identity be an immutable characteristic on which to base protections? (The same can also be said of a homosexuality identity, which is a discussion for another time).

On medical and scientific data, Justice Alito cited the UK’s Cass Report which concluded that children gain no benefit from transgender procedures and studies which said opposite were of “low quality”. The prosecution did concede that the use of puberty blockers leads to sterility and also fumbled to explain the fact that giving puberty blockers does not change the incidence of suicide.¹ But like many progressives, Justices Sotomayor and Brown-Jackson along with the pro-trans lawyers seem to labor under the delusion that benefits still outweigh the harm, ignoring that transgenderism, like other evil, is a contagion, which unleashed will spread. Maybe they think that is a good thing.

The downplaying of harms and flippant comparisons of transgender medicine to inane things like wearing trousers and dresses shows how the peddlers of this ideology have packaged it – toxic venom in a sippy cup. Transgenderism’s war on reality is an end point in a slow dismantling of sex distinctions in our culture. Identity politics, incubated in the social sciences has now infected the hard sciences, as Claire Lehmann points out in a helpful article at Commentary:

Lehmann gives a potted history of how important differences in the sexes have been papered over through decades of scientific research. Females of reproductive age (both animal and human) are often excluded from drug trials (and for good reason):

For a long time in the biomedical sciences it was thought that female animals were just too complex and variable to study, due to their fluctuating estrous cycles. Female sex was seen as a “nuisance variable”—it would provide extraneous data with no real meaning and would cloud and confound the carefully designed studies of academic scientists…[It was assumed that] whatever was fundamental to human beings would be shared by both males and females.

From there, feminist (and then Marxist) ideology has glommed onto these ideas, with activism now impacting medicine. Autonomy, choice and sameness are being privileged over physical world realities:

The question we must ask ourselves is: Why on earth would anyone wish to deny the self-evident truth that the biological differences between men and women from size and shape and bone structure down to the very XX-XY chromosomal separation would have second-order effects on health, the metabolization of medicines, and the way diseases work inside the body? The answer is that we live in an age when politics and ideology override all.

Ignoring differences in men and women when it comes to medicine is placing lives in danger. We know that ethnicity and genetic heritage can affect what ailments a person is susceptible to and what treatments are beneficial. Even just having red hair may affect medical care! So the dismissal of differences so fundamental as male and female must be pure ignorance or malevolence.

It was noted that Justice Gorsuch remained quiet for the duration of oral arguments. You may remember his disappointing decision to side with liberal justices in the case known as Bostock Vs Clayton. That case ruled that employees may not be fired “simply for being” homosexual or transgender. Some see it as a narrow ruling which only affects workplaces, but it certainly put the camel’s nose under the tent when it comes to what is meant by discrimination “on the basis of sex”.

There is a strong possibility that the decision will fall in favor of Tennessee’s law but as with slavery, abortion and many other moral depravities, a state-based approach will not be good for America. If something is evil, it is evil everywhere. With states setting themselves up as “sanctuaries” for parents to bring their children for mutilation, if you recognize the horror, you must speak up and make the case for good.

1. “Suicidality” is a term that was used in oral arguments in this case. It is a tricky subject to study and the link between depression and suicide is not as emphatic as many assert.