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Justice Clarence Thomas during a 2018 legal discussion (YouTube/Library of Congress).
As the U.S. Supreme Court’s conservative majority ruled 6-3 on Wednesday in favor of upholding Tennessee’s ban on certain medical care for transgender minors, Justice Clarence Thomas penned a concurrence slamming “self-described experts” as “irrelevant” and urging judicial restraint should other state legislatures follow in the footsteps of the Volunteer State.
In U.S. v. Skrmetti, the majority led by Chief Justice John Roberts held that the state’s law, SB1, “prohibiting certain medical treatments for transgender minors is not subject to heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment and satisfies rational basis review,” a decisive loss for three transgender teenagers and their parents who challenged prohibitions on puberty blockers and hormone therapy.
The high court declined to say that the law discriminates based on sex in light of Justice Neil Gorsuch’s 2020 opinion in Bostock v. Clayton County.
“We have not yet considered whether Bostock’s reasoning reaches beyond the Title VII context, and we need not do so here. For reasons we have already explained, changing a minor’s sex or transgender status does not alter the application of SB1,” Roberts wrote for the majority.
Thomas’s concurrence began by supporting the majority’s but was mainly written to “address some additional arguments made in defense of Tennessee’s law.”
Among those “additional arguments” was Thomas’ panning of “self-described experts” as “irrelevant,” his criticism of the term “gender-affirming care,” and his skepticism of “medical consensus.”
“Taken together, this case serves as a useful reminder that the American people and their representatives are entitled to disagree with those who hold themselves out as experts,” Thomas wrote, praising the majority for recognizing that the citizens of Tennessee have the “right to decide for themselves.”
“The views of self-proclaimed experts do not ‘shed light on the meaning of the Constitution,”” Thomas continued, citing the Dobbs v. Jackson Women’s Health, the landmark abortion case that overturned Roe v. Wade and its progeny. “Thus, whether ‘major medical organizations’ agree with the result of Tennessee’s democratic process is irrelevant.”
The justice again referenced Dobbs a few lines later when emphasizing the “importance of reserving to the democratic process the right to decide controversial medical questions.”
“In Dobbs, the respondents sought to invoke the authority of ‘overwhelming medical consensus’ and ‘numerous major medical organizations’ to dispatch with Mississippi’s asserted interest in minimizing pain for the unborn,” Thomas continued.
Similarly, Thomas added, the Supreme Court on Wednesday “rightly” rejected “efforts by the United States and the private plaintiffs to accord outsized credit to claims about medical consensus and expertise” on medical care for transgender youths.
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After criticizing the term “gender-affirming care” as a “sanitized description” which “obscures the nature of the medical interventions at issue,” Thomas encouraged the courts to proceed with restraint should other state legislatures embrace similar legislation in the future.
“This case carries a simple lesson: In politically contentious debates over matters shrouded in scientific uncertainty, courts should not assume that self-described experts are correct,” he concluded.
Justice Sonia Sotomayor, “[i]n sadness,” led the dissenting liberals of the court to say the majority twisted “logic and precedent” to uphold a “categorical ban on lifesaving medical treatment[.]”
“Thus, the majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims,” she wrote. “In sadness, I dissent.”
In her concluding paragraph, Sotomayor stated that the majority refused to “call a spade a spade” and, in doing so, did “irrevocable damage to the Equal Protection Clause,” invited “legislatures to engage in discrimination by hiding blatant sex classifications in plain sight,” and authorized “untold harm to transgender children and the parents and families who love them.”
