A legal expert is skeptical that the Biden administration will be able to convince the U.S. Supreme Court that Tennessee’s ban on transgender medical procedures for minors violates the Equal Protection Clause of the 14th Amendment.
Thomas Jipping, senior legal fellow for the Heritage Foundation, believes that the legal argument opposing the law will fail because it will not create a parallel between the puberty blocker Tennessee law and previous Supreme Court precedent that involved a higher or tougher legal standard.
Jipping stated that the Biden administration’s argument is trying to shoehorn Tennessee’s law into a slot that makes it tougher for the state to defend its law, and that it will not hold water. He believes that the Tennessee law does not set a parallel to sex discrimination or a parallel to interracial marriage, and that the legal argument will fail.
The Supreme Court heard oral arguments in the case U.S. vs. Skrmetti on Wednesday, which could pose challenges to the more than two dozen other state laws banning transgender medical procedures for minors. The case involves Tennessee’s SB1, which prohibits medical procedures for minors when the specific purpose is to enable a minor to identify with or live as a purported identity inconsistent with the minor’s sex or treat purported discomfort or distress from a discordance between the minor’s sex and asserted identity.
The Biden administration’s Justice Department and the ACLU argued that the restrictions on minors are based on sex and thus violate the Equal Protection Clause of the 14th Amendment. Justice Ketanji Brown Jackson seemed receptive to that claim, drawing backlash on social media with thousands of comments expressing outrage at the comparison to interracial marriage.
Jipping surmised that Jackson was trying to illustrate that if the Tennessee law did classify based on sex, it could be subject to a heightened standard that would be tougher for the state to defend. However, Jipping did not see this argument holding water, believing that the Tennessee law does not set a parallel to sex discrimination or a parallel to interracial marriage.
The court’s ruling could have sweeping implications for other legal fights over transgender rights, including bathroom access and participation in scholastic sports. It could also serve as a legal template for future disputes involving the LGBTQ+ community, and whether sexual orientation is a “protected class” that deserves the same rights that involve a person’s race and national origin.
