In a major victory for conservatives, the Supreme Court on Wednesday upheld a Tennessee ban on sex change surgeries for minors. Although the majority opinion was legally straightforward, Justice Amy Coney Barrett, in a concurring opinion, argued that the ruling didn’t go far enough, a stance that caught many conservatives off guard, considering her recent votes against the Trump administration.
In the 6-3 decision, United States v. Skrmetti, the majority opinion, authored by Chief Justice John Roberts, employed the most lenient standard to review the law, as the Court acknowledged that research on so-called gender-affirming care is still highly debated and experimental. The case, therefore, was not to be solved by the direct text of the Constitution; it only had to prove that it was rationally related to a legitimate government interest. In other words, whether or not the state properly justified the law. The majority opinion emphasized that the law’s classifications were based on age and medical use (ordinary classes), not on sex or transgender status (protected classes), and therefore was not antithetical to the Equal Protection Clause of the 14th Amendment, and did not require extra scrutiny.
The majority opinion did not try to determine whether 'transgender' was a suspect or protected class. This would have been far more controversial with the left than it already is, but Justice Barrett, in a concurring opinion, decided to take on that challenge. She wrote:
Because the Court concludes that Tennessee’s Senate Bill 1 does not classify on the basis of transgender status, it does not resolve whether transgender status constitutes a suspect class...I write separately to explain why, in my view, it does not.
She argued:
To begin, transgender status is not marked by the same sort of“‘obvious, immutable, or distinguishing characteristics’” as race or sex.
Justice Barrett added that "transgender" people as a group are "large, diverse, and amorphous," similar to other groups the Supreme Court has decided not to qualify as a "suspect" class, like intellectually disabled people, the elderly, and the poor. If it is decided in a future case that "transgender" is not considered a protected class, the lowest standard of judicial review will be applied to cases concerning the issue. This would mean that the Court would only analyze whether the challenged law has any legitimate government interest, as opposed to whether the law is discriminatory. It would be much more difficult for those who support "transgenderism" to bring discrimination cases to court.
Justice Barrett, who has faced increased criticism from conservatives in recent months for siding against the Trump administration in several high-profile cases, took a decisively firmer stance in this decision. By openly rejecting the idea that transgender individuals are a protected class under constitutional law, she signaled a potential realignment in future equal protection cases. If her reasoning gains traction with the rest of the Court, it could pave the way for a legal path to decisive political victory for conservatives on the issue.
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