U.S. vs Skrmetti: Can Tennessee ban the use of puberty blockers and cross-sex hormones with minors seeking to change sex?

A landmark case. An interesting Supreme Court hearing.

On Wednesday, Dec. 4, the U.S. Supreme Court heard arguments in what is widely considered to be a landmark sex/gender case: United States vs Skrmetti. The case focuses on the constitutionality of a law in Tennessee that bans the use of puberty blockers and cross-sex hormones for the treatment of gender dysphoric children (i.e., those younger than 18). I discussed M. Gessen’s NYTimes op-ed discussing the case in my posting yesterday, and an excellent overview of the case can be found here. The Supreme Court website includes links to both the full audio of the hearing and a complete hearing transcript in pdf format.

I listened to the entire two-hour hearing – the first time I’ve ever done that. Listening to a full hearing is an interesting experience, and this is certainly an interesting and important case. What I have posted below is an annotated (my comments) copy of a few excerpts from the transcript. But first, a brief summary and a few general observations about the hearing.

Although the case was brought on behalf of three specific children who live in Tennessee and who wish to have, or to continue, medical treatments for gender dysphoria (treatments that include administering puberty blockers and cross-sex hormones), the details of their situations were barely discussed at all during the hearing. I was surprised by that, but shouldn’t have been – because the focus of the hearing before the Supreme Court was on the constitutionality of the Tennessee law, not on the details of the lives of these specific children.

Much of the focus of the questioning and discussion during the hearing was on the issue of whether or not the Tennessee law discriminated on the basis of sex. The reason for this focus is that if the Supreme Court determines that the law DOES discriminate on the basis of sex, then the law itself must be subjected to a much higher degree of scrutiny in order to be found to be constitutional than would be the case if it is judged that the law does not discriminate on the basis of sex.

In U.S. law, the highest bar, called “strict scrutiny,” is reserved for laws discriminating based on “suspect classes,” including race, religion, national origin or lack of citizenship. Sex, however, is what is referred to in legal terms as a “quasi-suspect” class, and laws that discriminate based on sex must clear “intermediate scrutiny” if they are to be found to be constitutional. The least rigorous standard of review is referred to as the “rational basis test” and is applied when no legally fundamental rights or suspect classifications are at issue. When the rational basis test is applied, a law may be ruled constitutional as long is it is judged that the law or policy is rationally related to a legitimate government interest. In the case of the Tennessee law, the lower court had ruled that the law was constitutional based upon the application of the rational basis test.

In the Supreme Court discussions of the Skrmetti case, neither side claimed that the Tennessee law would fail the least rigorous rational basis test. And even the “petitioners” in this case (the U.S. government and the ACLU) did not claim that the law would necessarily be found to be unconstitutional if a higher level of scrutiny standard (Intermediate) were to be applied; rather, the petitioners were claiming that the law discriminated on the basis of sex and therefore the case should be remanded to a lower court for a determination of the constitutionality of the law based upon Intermediate scrutiny. In other words, both sides agreed that Tennessee has the right to pass laws that limit the use of certain kinds of medical procedures with children, but the petitioners claimed that because THIS law (according to the petitioners) discriminates on the basis of sex, for the law to be found to be constitutional, it must be shown that the banning of the procedures in question is necessary to avoid significant harm to children in Tennessee, and they were asking that the case be returned to a lower court to make that determination.

It is worth noting that this goal on the part of the petitioners was much more modest than the claims typically made by trans activists (including – when not in court – by Chase Strangio, the lawyer for the ACLU in this case) that gender identity should be considered to be a fully “suspect class” under U.S. law, and that therefore in ANY situation in which a policy involves the separation of the sexes (e.g., sports, prison, bathrooms, locker rooms, women’s shelters) the ONLY legal criterion that should be applied to determine who is “female” would be self-identification.

The petitioners made the following argument in support of their claim that the law involves sex discrimination. They argued that, with this law in place, a female child in Tennessee who expressed a desire to be a boy (and whose parents supported the transition) would NOT be permitted to be treated with puberty blockers or male hormones (testosterone). However, the use of puberty blockers would be legal if the patient was a male child who was experiencing precocious puberty, and testosterone treatments could be used with a boy whose body was producing insufficient testosterone for male puberty to occur. Thus, according to the petitioners, the law subjects the female child to sex-based discrimination.

The opposing argument, presented by the defendant’s (the state of Tennessee) lawyer was that the law does NOT discriminate on the basis of sex, for the simple reason that the banning of the use of puberty blockers and/or cross-sex hormones for the purposes of gender transition applies equally to male and female children.

I’ll make a few additional general observations before moving onto the annotated transcript excerpts. During many parts of the hearing, the “questions” that were asked by the justices were barely questions at all, but instead were statements of what the justice seemed to already believe was true, followed by a request for a comment by the lawyers. In fact, it wasn’t clear to me what the actual purpose was of the hearing. Both sides in the case, and various other groups, had already submitted briefs to the court, the justices had already read those briefs, and there was little hint during the hearing that what the lawyers were arguing during the hearing itself had any hope of changing any justice’s mind. Gorsuch didn’t even ask any questions. And the closest the hearing seemed to come to a “mic drop” moment was when the petitioners were cornered into admitting that “gender identity” is not immutable. This would seem to be a critically important point, since only a monster would want to aggressively treat gender dysphoria with powerful body-altering drugs if a “wait and see” approach is likely to be successful in most cases. In that case (which evidence indicates IS the case), the state would have a compelling interest in banning the use of puberty blockers and cross-sex hormones with minors wishing to change sex, and therefore the Tennessee law should be judged to be constitutional. It did not appear, however, that the justices who seemed to be siding with the petitioners were persuaded by this argument.

Based on their questions and comments, it seemed clear that 4 justices (Thomas, Alito, Kavanaugh, Roberts) are very likely to side with the respondents (that is, with the state of Tennessee) while 3 are very likely to side with those challenging the constitutionality of the law (Sotomayor, Jackson, Kagan). That would mean that if either Barrett or Gorsuch were to side with the respondents, then the challenge to the law would fail — and that seems to be a very likely outcome to the case.

Annotated excerpts from the hearing transcript are below. Text taken from the transcript itself is in italics.

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IN THE SUPREME COURT OF THE UNITED STATES:

UNITED STATES, Petitioner,

v. JONATHAN SKRMETTI, Respondent

APPEARANCES:

GENERAL ELIZABETH B. PRELOGAR, Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Petitioner. CHASE B. STRANGIO, ESQUIRE, New York, New York, supporting the Petitioner. J. MATTHEW RICE, Solicitor General, Nashville, Tennessee, on behalf of Respondents

The lawyers for the petitioners (those challenging the law) spoke first.

GENERAL PRELOGAR: Mr. Chief Justice, and may it please the Court:

This case is about access to medications that have been safely prescribed for decades to treat many conditions, including gender dysphoria. But SB1 [the Tennessee law] singles out and bans one particular use. In Tennessee, these medications can't be prescribed to allow a minor to identify with or live as a gender inconsistent with the minor's sex. It doesn't matter what parents decide is best for their children. It doesn't matter what patients would choose for themselves. And it doesn't matter if doctors believe this treatment is essential for individual patients. SB1 categorically bans treatment when and only when it's inconsistent with the patient's birth sex.

Tennessee says that sweeping ban is justified to protect adolescent health. But the State mainly argues that it had no obligation to justify the law and that SB1 should be upheld so long as it's not wholly irrational. That's wrong. SB1 regulates by drawing sex-based lines and declares that those lines are designed to encourage minors to appreciate their sex. The law restricts medical care only when provided to induce physical effects inconsistent with birth sex. Someone assigned female at birth can't receive medication to live as a male, but someone assigned male can.

If you change the individual's sex, it changes the result. That's a facial sex classification, full stop, and a law like that can't stand on bare rationality. To be clear, states have leeway to regulate gender-affirming care, but, here, Tennessee made no attempt to tailor its law to its stated health concerns. Rather than impose measured guardrails, SB1 bans the care outright no matter how critical it is for an individual patient. SB1 leaves the same medications and many others entirely unrestricted when used for any other purpose, even when those uses present similar risks.

The Sixth Circuit never considered whether Tennessee could justify that sex- based line. Because the Equal Protection Clause requires more, this Court should remand so that SB1 can be reviewed under the correct standard.

I welcome the Court's questions.

In her opening statement, Prelogar lays out the general argument I described above. She claims that the law treats children differently based on their sex (e.g., boys can receive testosterone treatments while girls cannot) and therefore the case should be remanded to a lower court to apply intermediate scrutiny rather than the rational basis test of a law’s constitutionality.

Note also that here, and throughout the hearing, the lawyers for the petitioners use the term “assigned male/female at birth”. This is the phrasing of choice within the world of trans ideology, suggesting that rather than a newborn BEING male or female, the newborn is more simply ASSIGNED as being male or female. That is — patent nonsense. Newborns ARE male OR female, and what parents and doctors do when a baby is born is to observe, based usually on clear physiological features, whether the newborn is male or female. In very rare cases, an error may be made, but that doesn’t mean that a newborn’s sex is merely something that is arbitarily “assigned”, sort of like a child being assigned to one classroom teacher or another at school. The widespread use of the “assigned at birth” phrasing in the media represents a major victory by trans ideology supporters. But note that most parents (throughout the world) would think someone has a screw loose if the person were to ask the parent of a young baby “What sex was your baby assigned at birth?” as opposed to asking “Is your baby a boy or a girl?”.

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JUSTICE THOMAS: Much of your -- the latter part of your opening statement suggests that the -- well, seemed to suggest that there's an outright ban on this treatment. But that's not the case. It's really for minors. So why isn't this simply a case of age classification when it comes to these treatments as opposed to a ban, as you suggested in your opening statement?

Thomas’s very first question basically laid out one position on the claim of sex discrimination; that the law discriminates on the basis of age (which it certainly does), but not sex. In her response (which was rather long and meandering, so I won’t copy it here), Prelogar admits that the law discriminates on the basis of age, but maintains that it discriminates on the basis of sex as well.

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JUSTICE THOMAS: Well, is there no difference in the -- if a girl takes testosterone or if a boy takes testosterone?

GENERAL PRELOGAR: So the district court specifically considered this question in detail and found that with respect to the risks that the State had identified, it was not substantiated that there would be unique risks associated with a cross-sex use of the hormones.

JUSTICE THOMAS: Is there no physiological difference?

GENERAL PRELOGAR: Certainly, I understand that there are biological differences between males and females, but when it came to the specific risk factors that the State was focused on, what the district court found is that many of those risk factors would exist regardless of the birth sex of who was taking those medications.

JUSTICE THOMAS: Well, I'm more interested in whether or not there is a difference in testosterone and its reaction in a male as opposed to in a female and vice versa for estrogen.

GENERAL PRELOGAR: So, if you take hormones, they will prompt the development of secondary sex characteristics, and -- and whether you're a male or a female, if you take testosterone, you might develop a deeper voice register, you might have facial hair growth, and, in fact, that's one of the intended effects of these treatments because that can be critical to helping manage gender dysphoria that transgender adolescents would ever -- would otherwise experience. But I think, when it comes to the question of whether that creates unique risks, the district court found that for the most part, the State had not substantiated those risks and that it leaves regulation of medication unrestricted even in contexts where these same medications or others would pose a comparable set of risks.

This early exchange between Thomas and Prelogar is an important one, because later the lawyer for Tennessee will argue that giving testosterone to a boy vs a girl is simply not the same treatment — an argument which, if accepted, would completely negate the petitioners' argument that the law discriminates on the basis of sex. As a reminder — the “sex discrimination” claim is based on the argument that SB1 makes it legal to treat a boy but not a girl with testosterone and makes it legal to treat a girl, but not a boy, with estrogen. But what Thomas is arguing here is that the effects of testosterone on a girl are so different from the effects on a boy that they should not be considered to be the “same” treatments. Thomas is correct, of course. While the testosterone treatment will promote the growth of facial hair for both a boy and a girl, only the girl will also experience a host of other effects related to her female physiology (e.g. atrophy of ovaries). For Prelogar to argue here that there are no differences in the side effects or risks associated with testosterone treatments with boys vs girls is nothing more than rhetorical sophistry, and it’s pretty obvious she knew she was on shaky ground when trying to respond to Thomas’s question.

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JUSTICE ALITO: General, can I ask you a question about the state of medical evidence at the present time? In your petition, you made a sweeping statement, which I will quote: "Overwhelming evidence establishes that the appropriate gender-affirming treatment with puberty blockers and hormones directly and substantially improves the physical, psychological well-being of transgender adolescents with gender dysphoria." That was in November . Now, even before then, the Swedish National Board of Health and Welfare wrote the following: They currently assess "that the risks of puberty blockers and gender-affirming treatment are likely to outweigh the expected benefits of these treatments," which is directly contrary to the sweeping statement in your petition. After the filing of your petition, of course, we saw the -- the release of the Cass report in the United Kingdom, which found a complete lack of high-quality evidence showing that the benefits of the treatments in question here outweigh the risks. And so I wonder if you would like to stand by the statement that you made in your petition or if you think it would now be appropriate to modify that and withdraw the statement that there is overwhelming evidence establishing that these treatments have benefits that greatly outweigh the risks and the dangers.

GENERAL PRELOGAR: I, of course, acknowledge, Justice Alito, that there is a lot of debate happening here and abroad about the proper model of delivery of this care and exactly when adolescents should receive it and how to identify the adolescents for whom it would be helpful. But I stand by that there is a consensus that these treatments can be medically necessary for some adolescents, and that's true no matter what source you look at.

JUSTICE ALITO: But, for the general run of minors, do you dispute the proposition, in fact, that in almost all instances, the judgment at the present time of the health authorities in the United Kingdom and Sweden is that the risks and dangers greatly outweigh the benefits?

GENERAL PRELOGAR: I do dispute that because, if you actually look at how those jurisdictions are addressing this issue, they have not outright banned this care. The Cass report says at multiple points that this care can be medically indicated for some transgender adolescents. And, of course, it's true that they have called for a more individualized approach to these issues and have questioned whether it should be readily applied to all adolescents as a matter of course.

JUSTICE ALITO: -- but I -- time is running out -- that the National Health Service some months ago limited the prescription of puberty blockers to adolescent males who are over the age of 16 and are already on estrogen, but, for those who are under the age of 16, it's allowed only for experimental purposes? Is that not true?

GENERAL PRELOGAR: So the approach in the U.K. right now is to allow hormone therapy for anyone 16 and older, and with respect to puberty blockers, the U.K. has restricted new prescriptions outside of research settings. I believe that all of that's true. It's outside the record in this case, and so I -- I haven't myself confirmed everything that you just cited, which wasn't before the district court in this case. But let me make a couple of additional points. To the extent that you think that this needs to be taken into account in the application of heightened scrutiny, there's a time and a place for that, and it's with record evidence on remand. We think the Court here just needs to recognize the sex-based classification in this statute and send the case back.

When challenged on the evidence regarding the harms and benefits of gender affirming care with minors, Prelogar splits a few hairs (the treatments aren’t completely “banned” in the U.K, she says — because they can be used under special experimental conditions), argues that what is needed is not a complete ban but lots of regulations to safeguard against what has essentially become standard practice in gender clinics of prescribing a regimen of gender affirming care for any minor who expresses a desire to change sex, and then retreats further into her ultimate fallback position that all the petitioners are asking for is for a lower court to evaluate the evidence more fully. Again, the kind of policy that Prelogar is advocating for here is a far cry from what trans activists have claimed is their “right” — that is, basically unrestricted access to gender affirming care at any age.

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GENERAL PRELOGAR: Our primary argument is that this statute on its face says you can't have medications inconsistent with sex. And no matter what you think about transgender discrimination generally, that's a sex-based line. It's no different than saying you can't dress inconsistent with your sex.

By this point in the questioning by Alito, Prelogar has completely lost her focus, and her argument here is just silly. To say that denying children the “right” to receive cross-sex hormones is not conceptually different from placing legal restrictions on whether they can dress in a manner inconsistent with their sex is just — ludicrous “on its face”. For starters, I’m not sure what that would even mean for girls. And even for boys, dressing “like a girl” does not change a boy’s physiology. This was a very odd argument for Prelogar to have made.

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In response to a later question by Alito:

GENERAL PRELOGAR: The statute says no medications that are inconsistent with your sex. And, second, these aren't drugs that are limited to one sex or another. Both males and females alike for decades have been prescribed puberty blockers, hormones, testosterone, estrogen. They produce the same physical characteristics as I was saying to Justice Thomas, no matter whether your birth sex is male or female.

Again — while it may be true that testosterone increases facial hair growth in both males and females while estrogen promotes breast development in both sexes, to say that these drugs have the same effects on males and females represents sophistry in the extreme. Giving a biological male child estrogen has huge effects on various body parts that only boys have. Similarly, when a girl takes testosterone, the drug has dramatic effects on parts of her body that boys don’t even have. Prelogar’s claim here is patently ridiculous, but unfortunately for her, she was forced to try to defend this indefensible claim because to give even an inch here would make her claim that the Tennessee law discriminates on the basis of sex untenable. Which it is.

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JUSTICE SOTOMAYOR: -- with respect to the discussion about the European countries and the fact that they haven't limited these treatments altogether, the Cass report, as you point out, explicitly says that medical intervention might be necessary for some adolescents, correct?

GENERAL PRELOGAR: That's right.

JUSTICE SOTOMAYOR: Isn't the purpose of intermediate scrutiny to make sure that we guard against our -- I want to -- I'm not intending to insult, but we all have instinctual reactions, whether it's parents or doctors or legislatures, to things that are wrong or right. For decades, women couldn't hold licenses as butchers or as lawyers because legislatures thought that our -- that we weren't strong enough to pursue those occupations. And some -- some people rightly believe that gender dysphoria may cause -- may be changed by some -- in some children. But the evidence is very clear that there are some children who actually need this treatment, isn't there?

GENERAL PRELOGAR: Yes. I think the evidence is uniform on that, whether you look at the standard of care, whether you look at the view of every major American medical association that has taken a position, many of whom are amici here. It's reflected in the clinical practice. The nation's leading children's hospitals for decades have been providing this care.

JUSTICE SOTOMAYOR: Some -- some children suffer incredibly with gender dysphoria, don't they?

GENERAL PRELOGAR: Yes. It's a very serious medical condition.

JUSTICE SOTOMAYOR: I think some attempt suicide?

GENERAL PRELOGAR: Yes. The rates of suicide are -- are striking

There are a couple of reasons why this interchange is quite interesting. First, Sotomayor seems to be conceding that use of puberty blockers and cross-sex hormones (and eventually surgery) is appropriate for only SOME children with gender dysphoria, which represents a marked departure from the oft-stated claim (by trans activists) that this form of treatment should be the treatment of choice for all children with gender dysphoria. Second, Sotomayor does not make the claim that, if these treatments will benefit some (but not all) children with gender dysphoria, that it is possible to know WHICH children these are. That’s important, of course, because — absent such knowledge — it raises the very real specter of children with gender dysphoria unnecessarily experiencing the harms of being treated with puberty blockers and cross-sex hormones without actually being better off in the long term. Third, Sotomayor raises the issue of suicide here — implying that suicide rates amongst gender dysphoric children are likely to be reduced if the children are treated with puberty blockers and cross-sex hormones. However, there is no good evidence that supports that contention — despite large numbers of parents of gender dysphoric children having been told that if they (the parents) don’t agree to the medical sex-change of their child, their child is likely to commit suicide (the classic “Do you want a dead daughter or a live son?” message received by many parents of gender dysphoric girls). It seems that Prelogar may be aware of the suicide rate evidence, because at no point does SHE claim directly that these treatments will reduce suicide rates — instead responding to Sotomayor with the vague statement “Yes. The suicide rates are — striking.”

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[In response to a question from Justice Kagan]

GENERAL PRELOGAR: But we do think there is a real space for states to regulate here, and I point to the example of West Virginia. West Virginia was thinking about a total ban, like this one, on care for minors, but then the Senate majority leader in West Virginia, who's a doctor, looked at the underlying studies that demonstrate sharply reduced associations with suicidal ideation and suicide attempts, and the West Virginia legislature changed course and imposed a set of guardrails that are far more precisely tailored to concerns surrounding the delivery of this care. West Virginia requires that two different doctors diagnose the gender dysphoria and find that it's severe and that the treatment is medically necessary to guard against the risk of self-harm. The West Virginia law also requires mental health screening to try to rule out confounding diagnoses. It requires the parents to agree and the primary care physician to agree. And I think a law like that is going to fare much better under heightened scrutiny precisely because it would be tailored to the precise interests and not serve a more sweeping interest like the one asserted here in having minors appreciate their sex.

Here, Prelogar is arguing that rather than a total ban, it would be better to have state laws, like the one recently passed in West Virginia, that impose clear, and severe, regulations on the kinds of conditions under which treatment with puberty blockers and cross-sex hormones would be permitted. What is left unstated here is that what West Virginia now requires goes FAR beyond what typically has been taking place in gender treatment clinics. So, in effect, Prelogar is conceding here that it would be appropriate for the state to impose strict regulations on treatments for gender dysphoria and that current practices need to be changed.

In terms of the Skrmetti case, it is not clear how this claim is relevant, because the justices are not in a position to write a new law themselves. The justices are not being presented with multiple versions of a law so that they can decide which version THEY think would be best. Rather, the justices must decide if the ACTUAL Tennessee law satisfies the “rational basis” standard, and if it does, whether the law discriminates on the basis of sex — and therefore must be assessed (by a lower court) according to an intermediate standard of scrutiny. Whether of not this precise law is the best law a state could pass doesn’t seem to be relevant to those decisions.

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JUSTICE JACKSON: And I guess my real concern, and I -- maybe I'll just ask you to react to my Loving parallel because I'm getting kind of nervous -- is that in Loving, those same kinds of scientific arguments were made. So I'm -- I'm reading here where the Court says: "The argument is that if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a state to treat interracial marriages differently from other marriages. On this question, the State argues the scientific evidence is substantially in doubt and, consequently, the Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages." And so, for me, this kind of idea that the way we look at it is not, first, are you drawing these classifications and then, State, give us your evidence so we can make sure that there's a proper fit. If, instead, we're just sort of doing what the state is encouraging here in Loving, where you just sort of say, well, there are lots of good reasons for this policy and who are we as the Court to say otherwise, I'm worried that we're undermining the foundations of some of our bedrock equal protection cases.

Justice Jackson’s claim here that there are clear parallels between the banning of medical treatments for gender dysphoria in children and the banning of interracial marriages has attracted a lot of attention — and ridicule. As I noted in my previous post (discussing M. Gessen’s op-ed about the case), Nellie Bowles, for example, has characterized Jackson’s reasoning here as “It’s the “you know what else was illegal once? Interracial marriage” approach.“

In an attempt to give Jackson (more than) the benefit of the doubt, there actually IS a parallel that COULD reasonably be drawn between the two cases. The claim here by the state of Tennessee is that SB1 does not discriminate on the basis of sex because the law applies equally to both males and females. In “Loving” (which overturned bans on interracial marriage) the state might have claimed that the law didn’t discriminate on the basis of race because the law applied equally to all races. The problem with this manner of comparison between the two cases is that (1) Jackson herself did not make this argument regarding the comparability of the two cases, and (2) in the case of Loving, the law banning interracial marriage should have failed even the most lenient rational basis standard, whereas with Skrmetti, neither side claims that the law should be found unconstitutional based upon that standard.

Instead of making that argument, Jackson claims that in both cases (Loving and Skrmetti), the state presented “scientific” evidence in support of the challenged law — which is why, according to Jackson, the two cases are similar. However, to equate the scientific evidence regarding harms produced by puberty blockers and the use of cross-sex hormones with the kind of pseudo-scientific racially bigoted theories offered by the state in Loving is to do a grave disservice to our modern understanding of the nature of the scientific enterprise.

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JUSTICE THOMAS: Both the SG and Petitioner have suggested that a better approach would be the approach of West Virginia. What's your reaction to that?

MR. RICE: Your Honor, the -- my friends' arguments with respect to the alternative approaches is pure policymaking. As Justice Kavanaugh recognized throughout his questioning, they cannot stand up here and say that if these alternatives were imposed that there would be no de-transitioners. So there -- there is -- there -- they cannot eliminate the risk of de-transitioners. So it -- it becomes a pure exercise of -- of weighing benefits versus risk. And the question of how many minors have to have their bodies irreparably harmed for unproven benefits is one that is best left for the legislature.

JUSTICE SOTOMAYOR: I'm sorry, counselor. Every medical treatment has a risk, even taking aspirin. There's always going to be a percentage of the population under any medical treatment that's going to suffer a harm. So the question in my mind is not do policymakers decide whether one person's life is more valuable than the millions of others who get relief from this treatment. The question is: Can you stop one sex from the other -- one person of one sex from another sex from receiving that benefit?

When I listened to the recording of the hearing, I was impressed with how respectful the lawyers were of the justices, and how respectful the justices were of the lawyers — and of each other. The justices commented and asked questions in turn, and rarely interrupted the lawyers when the lawyers were responding to a question. One exception to that feature of the hearing occurred when Sotomayor interrupted Mr. Rice (the lawyer for the respondents) to make the comment above out of turn.

Like Jackson’s comments about interracial marriage, Sotomayor’s mentioning of the potential harmful side effects of aspirin has received a lot of attention — and has been subjected to a lot of well-deserved ridicule. I’m not 100% certain what Sotomayor intended by her reference to aspirin, but I can think of only two possible interpretations — both of which make her comment rather ludicrous.

First — as far as I can tell, everyone who has commented on Sotomayor’s aspirin statement has assumed that Sotomayor was claiming that the potentially harmful effects of puberty blockers and cross-sex hormones are no more common nor more severe than those associated with taking aspirin. That claim is — simply ridiculous. Especially given the evidence that, if left untreated with puberty blockers and cross-sex hormones, most pre-adolescent children with gender dysphoria will grow out of their dysphoria by their mid-teen years, the idea that the harms of these treatments are of a kind with the risks of harm from normal doses of aspirin is nothing short of delusional.

If THAT was not what Sotomayor intended by her comments, perhaps she simply meant that because there will always be at least some tiny risk associated with any medical treatment, any discussion of harms vs benefits of a medical treatment should not enter into a discussion of the constitutionality of laws banning certain medical treatments. I actually think THAT IS what Sotomayor was arguing here — albeit, while making the off-hand reference to “one person” who is harmed by the treatment in comparison with the “millions” who benefit — a gratuitous and grossly (by many orders of magnitude) false claim regarding those who benefit vs those who are harmed by medical “gender affirming care”. The problem with this argument (if, indeed, it was what Sotomayor intended to argue here) is that it is ridiculous to say that a weighing of harms vs benefits is irrelevant to discussions of the legality of a policy that bans certain medical procedures. Indeed, I don’t believe that Sotomayor actually believes that. If, for example, the evidence was clear that a particular medical procedure harms 99.999% of those receiving the procedure while benefitting only one in a million, I can’t imagine that Sotomayor would oppose a ban, even if the ban discriminated on the basis of a protected characteristic.

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If you’re still reading this (heh heh) I’m impressed (or something), but I hope what I’ve copied and commented on here has given you a fair taste of how the hearing went. I do encourage listening to the audio of the hearing. For me, listening to it served, more than anything, to convince me that the justices come to each hearing having already made up their minds and that confirmation bias is the dominant determinant of what each justice says and how each justice interprets the statements by the lawyers during a hearing. Maybe that is less the case with hearings related to other issues, but it certainly seemed to be the case with the hearing on the Tennessee gender-dysphoria-treatment law.