What’s at stake in the trans US Supreme Court case

On 4 December, the US Supreme Court heard oral arguments in the case of United States v Skrmetti. In this case, President Biden’s Department of Justice is challenging a Tennessee law that bans the provision of puberty blockers and opposite-sex hormones for under-18s. A group of ‘transgender’ minors, their parents and a doctor claim that Tennessee – Jonathan Skrmetti is the attorney general for the state of Tennessee – is violating 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), which participated in the oral arguments.

Although I worked at the ACLU from 2012 to 2014, I involved myself in the case to oppose its position. I filed an amicus brief in support of the state of Tennessee on behalf of feminist group Women’s Declaration International USA. I also attended the pro-Tennessee demonstration outside the Supreme Court during the oral arguments on that frigid December day.

The case is ostensibly about whether Tennessee’s ban on puberty blockers and opposite-sex hormones for minors is constitutional. That’s an important question, and WDI USA urges the Supreme Court to rule that it is constitutional. WDI USA believes that children should have the right to grow through puberty, into adolescence and adulthood.

But the implications of Skrmetti go far beyond paediatric care. As questioning by several justices revealed, at the heart of the matter is whether the phrase ‘transgender minors’ (and by extension, the broader category ‘transgender people’) should warrant protection as a ‘quasi-suspect class’, and trigger heightened scrutiny under the Equal Protection Clause of the 14th Amendment. The ACLU thinks it should (although the solicitor general tried to deemphasise this aspect of its argument).

During oral arguments, Supreme Court justice Samuel Alito pressed the ACLU’s lawyer, Chase Strangio, on whether being ‘transgender’ is an ‘immutable’ characteristic. Strangio refused to say that it is and instead repeatedly claimed that the ‘distinguishing characteristic’ of ‘being transgender’ is that a person has a gender identity that differs from his or her sex (or ‘sex assigned at birth’, as Strangio had it).

But what is a ‘gender identity’ under the law, and how does it differ from a person’s ‘birth sex’? Strangio did not elaborate, and the justices did not pursue this line of inquiry.

We can look to the ACLU’s original complaint for some clues as to what it thinks ‘gender identity’ is. It states that ‘gender identity is a core, defining trait, that cannot be changed voluntarily or through medical intervention, and is so fundamental to one’s identity and conscience that a person cannot be required to abandon it as a condition of equal treatment’.

We can look to the ACLU’s own publications for some more answers. In a display of circular thinking, it defines the term ‘transgender’ to mean ‘a broad range of identities and experiences that fall outside of the traditional understanding of gender’. It includes: ‘People whose gender identity is different from the sex they were assigned at birth… people who “cross-dress” part of the time, and people who… identify as something other than male or female…’

Why should the Supreme Court establish a quasi-suspect class for a group of people that, at least according to the ACLU, includes part-time cross-dressers? Moreover, if the court does establish such a class (infinitely mutable and identified into or out of by self-declaration alone), what will be the consequences for everyone else? It would almost certainly render biological sex incoherent as a category.

Justice Brett Kavanaugh had some tough questions for the US government about whether a ruling in its favour would impact female-only sports. In my view, the creation of a quasi-suspect class for ‘transgender people’ most certainly would, though the solicitor general did her best to deflect. It would also undo decades’ worth of jurisprudence protecting women and girls on the basis of sex under the Equal Protection Clause.

WDI USA works hard to advance the feminist critique of ‘gender identity’ through pushing our ‘Declaration on Women’s Sex-Based Rights’ in law and policy. Democrats who see the holes in the logic of gender ideology have struggled to get their voices heard through all the partisan noise. An organisation called Democrats for an Informed Approach to Gender (DIAG) is seeking to open the minds of liberals who rely on mainstream-media outlets that uncritically adopt trans-activist talking points.

The meanings (in law and otherwise) of words like sex and gender are one of the most pressing topics facing our society today. And it is front and centre of the arguments being made in the Supreme Court in Skrmetti. Important questions are being raised. Do women and girls exist as a sex class? Can we protect same-sex attraction under the law if we cannot name the material reality of sex? Can we discuss these matters publicly? I hope the Supreme Court gives us some answers.

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.