by
Alex
Wong/Getty
Images)
This
morning,
the
Supreme
Court
issued
its
ruling
in
United
States
v.
Skrmetti,
upholding
a
Tennessee
law
banning
medical
care
for
transgender
kids.
While
a
law
stepping
between
parents-doctors-and-kids
on
the
basis
of
sex
would
seem
a
slam
dunk
violation
of
the
Equal
Protection
Clause,
Chief
Justice
Roberts
wrote
for
an
expected-but-still-depressing
6-3
majority
that
it
was
simply
a
“medical‑purpose”
carve‑out.
While
gender-affirming
care
for
kids
is
legal
in
Tennessee
if
it
comports
with
sex
assigned
at
birth
—
think
breast
implants
for
a
teen
girl
whose
life
goal
is
Miss
Teen
Tennessee
Swimsuit
—
the
state
can
ban
the
treatment
for
gender
dysphoria
and
it’s
not
a
decision
based
on
sex
for…
reasons.
Nor
is
it
discrimination
against
transgender
children,
the
majority
reasons.
To
be
honest,
I
didn’t
start
with
the
majority,
I
hit
control-F
and
leapt
directly
to
Sam
Alito.
The
result
was
expected,
but
the
ranting
of
the
Court’s
direct
pipeline
to
Newsmax-brain
was
obviously
where
the
fun
—
in
a
manner
of
speaking
—
was
bound
to
begin.
And
I
was
not
disappointed!
Alito
took
time
out
of
his
luxury
vacation
schedule
to
declare
in
a
loud
concurrence
that
while
he’s
obviously
pleased
that
the
Court
has
decided
to
substitute
its
judgment
for
medical
professionals
—
a
passion
of
his
—
he’s
unwilling
to
join
the
latter
part
of
the
decision
because,
in
his
estimation,
the
opinion
is
very
clearly
discriminating
against
transgender
people…
and
he
thinks
that’s
good!
Hey,
sometimes
you’ve
got
to
appreciate
the
honesty.
The
disgusting,
bigoted
honesty.
It’s
like
the
“emperor
wears
no
clothes”
but
the
emperor
is
ripping
the
clothes
off
everyone
around
him
too.
Both
male-assigned
and
female-assigned
patients
are
blocked
under
the
Tennessee
law,
the
majority
reasons,
so
it’s
not
sex
discrimination.
That
the
law
applies
explicitly
to
patients
with
a
condition
related
to
sex
doesn’t
matter
because
puberty
blockers
can
be
used
for
all
sorts
of
non-sex
things
so
the
state
is
free
to
constitutionally
ban
its
use
for
sex
treatments
because
medical
treatments
enjoy
the
sort
of
special
exception
to
the
Fourteenth
Amendment
usually
reserved
for
presidents.
Republican
presidents,
anyway.
Different
drugs
can
be
used
to
treat
the
same
thing
(would
you
like
Advil
or
Tylenol
for
your
headache?),
and
the
same
drug
can
treat
different
things
(take
DayQuil
to
ease
your
cough,
fever,
sore
throat,
and/or
minor
aches
and
pains)
Yes.
Just
like
Advil.
If
Advil
required
six
months
of
psychiatric
evaluation
and
got
you
run
out
of
town
by
your
school
board.
What
in
the
skibidi
is
this
Skrmetti
opinion?
As
for
discrimination
against
transgender
people,
Roberts
cites
the
Geduldig
opinion
—
where
the
court
ruled
that
it’s
not
sex
discrimination
for
an
insurer
to
deny
coverage
to
conditions
that
only
come
up
during
pregnancy
—
to
declare
that
“SB1
does
not
exclude
any
individual
from
medical
treatments
on
the
basis
of
transgender
status
but
rather
removes
one
set
of
diagnoses—gender
dysphoria,
gender
identity
disorder,
and
gender
incongruence—from
the
range
of
treatable
conditions.”
The
logic
is
that
we
allowed
private
insurers
to
make
cost-based
decisions
about
treatments
exclusively
applicable
to
one
identity
specific
condition
(which
was
probably
also
wrong,
but
put
that
aside),
so
therefore
the
state
can
make
decisions
about
treatments
exclusively
applicable
to
another
identity
specific
condition?
Not
sure
that
tracks,
bud.
The
majority
also
brushes
away
the
holding
in
Bostock
—
that
it’s
discriminatory
on
the
basis
of
sex
if
actions
are
tolerated
for
one
sex
and
rejected
if
the
person
is
the
other
sex
—
yadda
yadda-ing
that
employment
discrimination
law
just
grants
a
higher
flavor
of
“equality”
than
the
Equal
Protection
Clause.
How
could
it
do
that
without
itself
violating
the
Equal
Protection
Clause
in
a
reverse
way?
DON’T
ASK
QUESTIONS!
But
Alito
doesn’t
have
time
for
these
mental
gymnastics.
Justice
Thomas
writes
separately
to
suggest
who’s
to
say
that
J.K.
Rowling
doesn’t
know
more
about
these
medical
conditions
than
doctors,
continuing
the
conservative
legal
movement
theme
that
Yale’s
Federalist
Society
club
produces
better
virologists
and
gynecologists
than
any
medical
school.
Justice
Barrett
chimes
in
with
an
academic
spin
on
why
discrimination
can
be
legal
sorta,
it’s
Alito
who
cuts
through
it
all:
The
Court
holds
that
the
law
does
not
classify
on
this
ground,
and
the
Court
therefore
applies
rational
basis
review.
Ante,
at
16–18.
I
am
uneasy
with
that
analysis
and
would
reject
the
plaintiffs’
argument
for
a
different
reason:
because
neither
transgender
status
nor
gender
identity
should
be
treated
as
a
suspect
or
“quasi-suspect”
class.
The
Chief
wrote
a
lengthy
opinion
begging
the
public
not
to
pay
attention
to
the
man
behind
the
curtain.
Alito
just
let
his
freak
flag
fly
(upside
down).
Discrimination
on
the
basis
of
transgender
status
is
fine,
Alito
explains,
because
the
same
man
who
swears
all
rights
are
contingent
on
being
“deeply
rooted
in
the
Nation’s
history
and
tradition”
doesn’t
think
discrimination
against
transgender
people
rises
to
the
same
level
afforded
other
minority
groups.
Transgender
status
is
not
“immutable,”
and
as
a
result,
persons
can
and
do
move
into
and
out
of
the
class.
Members
of
the
class
differ
widely
among
themselves,
and
it
is
often
difficult
for
others
to
determine
whether
a
person
is
a
member
of
the
class.
And
transgender
individuals
have
not
been
subjected
to
a
history
of
discrimination
that
is
comparable
to
past
discrimination
against
the
groups
we
have
classified
as
suspect
or
“quasi-suspect.”
He’s
actually
using
the
fact
that
transgender
individuals
can
get
gender-affirming
care
as
an
argument
why
they
cannot
be
protected
under
the
Equal
Protection
Clause,
which
is
objectively
galling.
Like,
he
clearly
never
had
his
gall
bladder
removed
because
this
took
a
titanic
reservoir
of
gall
most
of
humanity
is
simply
incapable
of
producing.
This
argument
rests
on
the
assumption
that
someone
isn’t
transgender
when
they
haven’t
actively
gotten
care,
which
isn’t
true
but
it’s
also
a
conclusion
he
bases
on…
nothing.
This
conclusory
reasoning
on
one
page
is
all
the
more
impressive
given
his
argument
on
another:
Although
transgender
persons
have
undoubtedly
experienced
discrimination,
the
plaintiffs
and
their
many
amici
have
not
been
able
to
show
a
history
of
widespread
and
conspicuous
discrimination
that
is
similar
to
that
experienced
by
racial
minorities
or
women.
Instead,
they
provide
little
more
than
conclusory
statements.
This
is,
itself,
a
conclusory
statement.
Alito’s
recognition
of
racial
discrimination
is
limited
to
string
citing
Plessy
and
Brown
without
signaling
in
which
era
he
thinks
transgender
people
enjoyed
America
as
a
land
of
warm
acceptance.
Actually,
it’s
probably
for
the
best
that
he
doesn’t
elaborate
because
he’d
just
say
something
like
“Bugs
Bunny
wore
a
dress
to
trick
Elmer
Fudd
in
the
1940s
so
QED
America
had
no
problem.”
But
he
DOES
take
a
timeout
to
hint
that
he
thinks
laws
against
religiously
justified
bigotry
that
he
strikes
down
on
First
Amendment
grounds
probably
deserve
the
Fourteenth
Amendment
protection
he
denies
transgender
people
because…
the
nation’s
deeply
rooted
history
and
tradition
of
anti-Christian
bias?
I
guess?
The
Court
has
also
suggested
that
religion
is
a
suspect
class.
See
Carolene
Products,
304
U.
S.,
at
152,
n.
4.
That
determination
follows
from
the
First
Amendment,
which
prohibits
any
impairment
of
the
“free
exercise”
of
“religion.”
But
because
this
right
is
expressly
protected
by
that
provision,
questions
of
religious
discrimination
have
generally
been
decided
on
First
Amendment
grounds.
Of
note,
he
throws
this
into
his
strict
scrutiny
section
and
not
his
intermediate
scrutiny
reasoning
in
case
he
threw
anyone
with
this
masterclass
of
non-subtlety.
After
decades
refining
the
practice
of
disingenuous
semantic
games
designed
to
get
their
results
without
saying
the
quiet
part
out
loud,
Alito
seems
over
the
pretense.
And
in
the
process,
he’s
willing
to
tear
down
the
edifice
of
bullshit
his
fellow
travelers
erected.
If
only
the
public
cared
enough
about
the
courts
to
notice.
(Full
opinion
on
the
next
page…)
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
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Follow
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Joe
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