During oral arguments in the U.S. v Skrmetti case, the public witnessed attorneys for the plaintiffs – including an ACLU “transgender woman” – make an equal protection argument, citing the 14th Amendment, before the nine justices.
After losing in an appeals court, their goal is to end a Tennessee law that bans gender-confused minors from undergoing surgery and hormones in the state.
Tennessee’s law was defended Wednesday by the state’s solicitor general, Matthew Rice. He told the court at one point the only way the plaintiff’s attorneys can argue sex discrimination is to equate “fundamentally different medical treatments” for underage boys and girls.
“Giving testosterone to a boy with a deficiency is not the same treatment as giving it to a girl who has psychological distress associated with her body,” Rice argued.
Senate Bill 1 not 'sex-based law'
Thomas Jipping, senior legal fellow at The Heritage Foundation, tells AFN the legal argument from the Biden administration was to compare Tennessee’s law to sex discrimination. The reason for that, he explains, is because a state law discriminating by sex would require a much tougher standard to hold up in court.
“It’s the same law applied to everybody so, on its face, it’s not a sex-based law,” he says of that strategy. “And, therefore, I think the Biden administration is going to lose that argument.”
That doesn’t mean the liberal justices didn’t attempt to help the other side. In a telling moment, Justice Ketanji Brown Jackson compared Tennessee’s law to past state laws banning interracial marriage.
“They sound in the same kinds of arguments that were made back in the day, the ‘50s and '60s, with respect to racial classification,” Brown said during a friendly exchange with Elizabeth Prelogar, the U.S. solicitor general.
Alito exposes fallacy of 'immutable'
Jenna Ellis, an attorney and show host on America Family Radio, also followed the oral arguments Wednesday. Rice did a good job of pushing back on the claims of sex-based discrimination in the law, she says, which was helped by similar observations from Justice Samuel Alito in his questions to Chase Strangio, the ACLU attorney.
“Justice Alito asked the ACLU attorney if transgenderism is immutable,” Ellis, citing a key moment of the oral arguments, points out.
The word “immutable” is an important one in legal terms because it is cited in racial discrimination arguments over a race, such as black or African-American, that cannot change.
A huge legal hurdle for the plaintiffs is transgender ideology itself. A fundamental claim of transgender ideology is that “gender” is a personal belief, not the same immutable trait as a person’s sex. That is why the list of genders is now up to 72 definitions according to the website Medicine.net.
In his exchange with Strangio, the ACLU attorney, Alito cited the term “genderfluid” to point out some people born male later identify as female, and some people born female later identify as male.
“Are there not such people?” Alito asked.
“There are such people. I agree with that,” Strangio, who herself fits that definition, replied.
“So it’s not an immutable characteristic is it?” Alito summarized.
“It was a very important point in the whole argument,” Ellis observes, “because the ACLU and the Biden administration set up their entire argument today on a secular humanist playing field."
When the SCOTUS ruling comes next year, Ellis says everyone should care about the outcome because it will affect 20-plus states that have similar laws to Tennessee.
"It's going to be a red-letter day in terms of whether the U.S. Supreme Court is going to be fixed in reality,” Ellis warns, “which is there are two immutable genders and God Himself gives us our chromosomes.”
Editor's Note: American Family Radio is a division of the American Family Association, the parent organization of the American Family News Network, which operates AFN.net.
