Yesterday, far-left Axios ran an unintentionally terrific and accidentally encouraging story headlined, “
Supreme Court seems likely to uphold ban on gender-affirming care.” By “gender-affirming care,” Axios meant “sterilization and genital mutilation.”
On Wednesday, the Supreme Court heard oral arguments over a terrific Tennessee law banning “gender-affirming care”
for children. Adults can still get chop-a-dictomies until they run out of spare forearm. The Tennessee law is similar to laws passed in nearly all the red states at this point.
The
legal issue boiled down to whether Tennessee is simply regulating the practice of medicine, long approved as fully within state purview, or whether the law unconstitutionally discriminates against trans kids based on the immutable characteristic of their biological sex.
Fortunately, as I predicted, the Justices’ questions signaled deep skepticism, not just that Tennessee’s law was constitutionally sound, but also whether transgenderism could
ever be considered a constitutionally protected category. Boiling it down, the conservative majority seemed inclined to leave difficult questions of developing medicine and evolving medical ethics to legislatures, suggesting more than once the complex issue was not appropriate for courts to decide.
But something else, something wonderful, miraculous, and unexpected happened during oral arguments. Maybe it was obvious in hindsight. But,
for the first time, Biden’s weaponized trans activists (via their lawyers, one of whom was trans), were forced to
rationally defend their irrational ideology. They
had to answer the Justices’ questions. When they dodged, the Justices called them out on it.
The result was that trans “science” dissolved in the heat of judicial scrutiny. That is probably why corporate media predicted the Supreme Court will uphold the law. It was a rhetorical bloodbath.
For example, Justice Thomas asked a simple question that I first thought was a veiled criticism but turned out to be a wily judicial trap: “What remedy are you seeking?” he asked the government’s lawyers. Trans lawyer Chase Strangio (pictured above) was flustered, but eventually coughed up something about an injunction. (
My goodness, what an ironic last name.)
The implied criticism was that if the Justice had to ask, the requested remedy must not have been completely clear from the briefs, which is a rookie mistake, and one that it is nearly unbelievable the overpaid government lawyers could have made. But that’s not where he was going. Then Justice Thomas sprang the trap with a followup question: “So practically, you would get different treatment based on sex?”
In other words,
either way girls and boys are treated differently. Under the Tennessee law, boys “receive” testosterone (naturally) but girls “aren’t allowed to.” But if the law were enjoined, girls could receive testosterone supplements (from doctors) but boys can’t, since boys who are “transitioning” must get testosterone
blockers.
That simple question left the government’s equal protection case in a shambles. But that wasn’t even close to all.
Justice Alito laid a similar trap that sliced the trans case in two. He asked them “whether transgender status is immutable.” This was key because only innate, unchangeable characteristics, like race or biological sex, are considered constitutionally protected. People’s characteristics that can change, such as their weight, hairstyle, national origin, virtuous yard sign ownership, face tattoos, or smoking status,
cannot be protected by discrimination laws for a very straightforward reason.
If discrimination laws were available for
mutable characteristics, then people could
choose to voluntarily join a discriminated class and immediately acquire more legal rights over other citizens. Plus, as a practical matter, trying to protect characteristics that people can select between and change quickly becomes completely unworkable.
Consider the example of morbidly obese persons and airplane seats. If, to satisfy equal protection, fat folks get an extra airplane seat for free, how do you measure that? In other words,
how fat is
fat enough to get a free seat? If someone gains 50 pounds just to get a free seat, does that count? Should the law punish overweight people for losing weight by taking their free seat away? What happens if they weren’t fat enough for a free seat when they booked the ticket, but gained enough weight by the time they boarded the plane?
In other words, the Fourteenth Amendment’s Equal Protection Clause was only designed to address systemic inequalities tied to deeply ingrained societal prejudices over things people cannnot control, like their skin color, rather than protecting people’s individual preferences or lifestyle choices.
CLIP: Justice Alito questions Strangio about immutability of transgender status (1:29).
So, when Justice Alito asked attorney Strangio the simple question of whether transgender status is immutable, he pressed the bearded lady onto the razor-sharp horns of an impossible dilemma. If transgenderism
isn’t immutable, then it isn’t biologically based, and thus isn’t protectable. Strangio had no choice. She stuttered out her only possible answer:
I -- I think that the record shows that the -- the discordance between a person's birth sex and gender identity has a strong biological basis and would satisfy an immutability test.
At that point, Justice Alito had Strangio right where he wanted her. Alito then asked, what about gender fluidity? Strangio had to admit that transgenders “include people who have different understandings of -- of their gender identity.” But a person’s understanding is not an immutable characteristic, however hard Strangio then tried to cling to a “biological basis.” The contradiction was a classic modern example of Orwell’s ‘doublethink,’ which he defined as ’a simultaneous belief in two contradictory ideas.’
Best of all, Justice Alito did not neglect the most important and most critical issue of all: the harms to kids. On this issue, the mild-mannered Justice judiciously called the government’s lawyers liars, in polite legal language, asking “I wonder if you think it would be appropriate to modify or withdraw your statement that the treatment benefits outweigh the risks?” Listen:
CLIP: Justice Alito calls Biden’s lawyers liars (1:52).
CLIP: Justice Alito presses Strangio on suicidality (0:53).
Elizabeth Prelogar is one of the federal government’s main appellate lawyers. She regularly argues for the Biden Administration at the Supreme Court. Justice Alito cited to Prelogar a number of studies, including the bombshell Cass Report, which found no evidence trans kids were less likely to attempt suicide than kids whose gender dysphoria was treated in other ways. Justice Alito noted that, after the publication in Britain of the Cass Report, the UK and other European countries banned puberty blockers.
As Axios (and others) noted, and as I predicted, it seems likely from the questions that the Supreme Court will uphold the Tennessee law and, by extension, the laws in 26 other sane states. But more importantly, this series of questions could — I’m not saying it will, I’m just saying it’s possible — it
could have broken the back of the entire transgender movement, at least its pernicious status as presumptively valid.
Men winning women's awards; Supreme Court transitions transgender arguments; Daniel Penny trial update; nearly all federal workers have vanished; Tucker Carlson returns to Moscow; and more.
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