Does the US Supreme Court know what a woman is?

On Wednesday this week, the US Supreme Court will hear oral arguments in the case of United States v Skrmetti – a case during which the court will confront the question of whether women and girls exist as a sex class.

This is ostensibly a case about whether a US state (Tennessee) may constitutionally prohibit the provision of puberty blockers and opposite-sex hormones for under-18s. For that reason alone, it’s hugely important.

Tennessee has a law on the books prohibiting the administration of puberty blockers and opposite-sex hormones to minors. A group of ‘transgender’ minors, their parents and a doctor sued the state – Jonathan Skrmetti is the attorney general for the state of Tennessee – arguing that the law violates their rights under the Equal Protection Clause of the 14th Amendment to the US Constitution. The plaintiffs are represented by the American Civil Liberties Union (ACLU), and the US government has also challenged the Tennessee law. The case has now made its way to the Supreme Court.

I represent Women’s Declaration International USA (WDA USA) on its amicus brief in support of Tennessee. WDI USA argues that children have an international human right to grow into adulthood and to be protected from the physical and psychological harms that result from blocking puberty and / or administering opposite-sex hormones.

WDI USA’s brief notes that so-called gender-affirming care has been called a ‘human experiment on children and teens’ by Gerald Posner, one of the most respected investigative journalists in the US. Posner states that ‘ignoring the long-term dangers posed by unrestricted off-label dispensing of powerful puberty blockers and cross-sex hormones, combined with the large overdiagnosis of minors as gender dysphoric, borders on child abuse’. The brief explains that, in contrast to the zeal with which many US states and the federal government have been embracing these harmful practices, several European countries have been going in a different direction.

Skrmetti is a critically important case for everyone who cares about protecting children, including many feminists, scientists, medical professionals and parents who are desperately trying to save their children from the cult that is ‘trans’. WDI USA very much hopes the Supreme Court will rule in support of Tennessee for this reason alone.

But on a deeper level, the case is about more than the administration of puberty blockers. The US Supreme Court has spent decades developing a robust body of law protecting women and girls as a sex class under the Equal Protection Clause of the 14th Amendment to the Constitution. This prohibits a state from denying ‘to any person within its jurisdiction the equal protection of the laws’.

This jurisprudence all stems from the 1971 case of Reed v Reed, where the Supreme Court held for the first time that the promise of equal protection under the constitution applies to women. At issue in that case was an Idaho statute that expressly granted men an advantage over women in the administration of probate estates. The Idaho law stated: ‘Of several persons claiming and equally entitled to administer, males must be preferred to females, and relatives of the whole to those of the half blood’ (emphasis added).

An Idaho man named Richard Reed died without a will and without children, so the administration of his estate would fall to one of his parents, Sally and Cecil Reed, who were divorced. Because of the law in question, the court gave the honour to Cecil. Sally objected and her case made its way through the courts.

A young lawyer named Ruth Bader Ginsburg, who launched the ACLU’s Women’s Rights Project, got wind of the case and stepped in to help prepare Sally’s brief for the US Supreme Court hearing. Ginsburg did not think it was fair for the law to discriminate against women.

In her brief in Reed, Ginsburg argued, with her ACLU co-author Melvin Wulf, that ‘it is presumptively impermissible to distinguish on the basis of an unalterable identifying trait over which the individual has no control and for which he or she should not be disadvantaged by the law’. She was, of course, talking about sex – that is, the difference between men and women – and the ‘unalterable identifying trait’ to which she referred was the fact of her client Sally Reed being female. The Supreme Court agreed and ultimately ruled in a unanimous decision that the Idaho law was unconstitutional because ‘by providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause’.

Notably, as WDI USA has explained in other contexts, so-called gender identity had nothing to do with it. If ‘gender identity’ was in fact a subcategory of sex, Sally Reed could simply have saved everyone a lot of time and declared to the courts that she had the right to a preference in administering Richard’s estate because she ‘identified’ as male.

The Supreme Court has been protecting women and girls under the Equal Protection Clause on the basis of sex ever since. This culminated in the 1996 case of United States v Virginia, where then Supreme Court justice Ginsburg ruled on behalf of a majority of the court that the male-only policy of the Virginia Military Institute violated the promise of equal protection for women and girls.

All of that jurisprudence will be undone if the Supreme Court rules against the state of Tennessee in Skrmetti.

A core issue in the case is whether the phrase ‘transgender minors’ and, by extension, ‘transgender people’ constitute a sufficiently coherent category of people to warrant protection as a ‘quasi-suspect class’. If so, this would trigger what is called ‘heightened scrutiny’ under the Equal Protection Clause. In US jurisprudence, claims of sex discrimination are subjected to what is called ‘intermediate scrutiny’ because the law acknowledges that even though discrimination against women vis-à-vis men is bad, discrimination between the sexes is sometimes permissible. This is one of Justice Ginsburg’s legacies. But if ‘transgender minors’ and ‘transgender people’ are sufficiently coherent phrases to warrant similar scrutiny, that entire legal framework simply falls apart because it will become impossible even to distinguish between the sexes in the law.

Helpfully for those of us who care about material reality, the ACLU has done itself no favours by publishing an utterly incoherent definition of ‘transgender’. It says that transgender encompasses ‘a broad range of identities and experiences that fall outside of the traditional understanding of gender’. It continues:

‘Some of those identities and experiences include people whose gender identity is different from the sex they were assigned at birth, people who transition from living as one gender to another or wish to do so (often described by the clinical term “transsexual”), people who “cross-dress” part of the time, and people who identify outside the traditional gender binary (meaning they identify as something other than male or female). Some transgender people describe themselves as gender variant or gender nonconforming.

‘Not everyone who doesn’t conform to gender stereotypes, however, identifies as transgender. Many people don’t conform to gender stereotypes but also continue to identify with the gender assigned to them at birth, like butch women or femme men.’

As WDI USA argues in its brief, it ‘would defy reason to establish a quasi-suspect class of such people for equal protection purposes, and this court ought not want to be the court that establishes such a classification for a group of people that, at least according to the ACLU, includes part-time cross-dressers’.

Many Americans will be watching this case closely to see if the Supreme Court still thinks women and girls exist as a sex class. A win for Tennessee will suggest that it does.

Kara Dansky represents Women’s Declaration International USA on its amicus brief in US v Skrmetti. She is also the author of the 2023 book, The Reckoning: How the Democrats and the Left Betrayed Women and Girls, published by Bombardier Books.