| SCOTUS Trans Case & Advocacy Groups’ Perverse IncentivesSystem Update #377Watch the Interview; Listen as a Podcast; Subscribe on Locals.On a recent After-Show on Locals, the most common question was from people who wanted us to address the oral argument held at the Supreme Court this week that discussed the constitutionality of a law in Tennessee that banned all minors, all people under the age of 18, from getting what is called gender-affirming medications, particularly cross-sex hormone. So, giving, for example, estrogen to boys when they claim that they’re trans women or trans girls, or giving testosterone to young girls who claim that they’re actually trans men. Tennessee has banned the issuance of medication for that purpose and the federal government, the Biden administration, and the ACLU, both sued the state of Tennessee on behalf of three trans teenagers who had been using cross-sex hormones to treat their gender dysphoria, claiming that it violates their constitutional rights. The question for a lot of people is: how can it possibly be the case that there’s anything in the Constitution that requires states to allow minors to use cross-sex hormones for gender reassignment? How could there possibly be anything in the Constitution that allows that, that applies to that one way or the other? Tennessee’s argument is half the states in the country permit this medication and this medical treatment, half the states don’t and in a democracy, every state should be allowed to decide for itself whether to allow it or not. That was the argument that led the Supreme Court to overturn Roe v. Wade and Dobbs. They didn’t ban abortion in the United States, they didn’t require abortion in the United States – they said each state has the right democratically to decide for themselves what they believe. It’s a pro-democracy decision on the grounds that there’s nothing in the constitution that limits what majorities can do. Obviously, the point of the Constitution is to limit what majorities can do, even if majorities want to ban criticism of Joe Biden, even if 80% of the people are in favor of that, legislatures vote in favor of that, the Constitution doesn’t let them do that because there was a free speech clause in the Constitution. But the argument of Tennessee is we democratically decided that we think these treatments are dangerous, even if the parents support them and there’s nothing in the Constitution that bans us. The argument from the United States government and the ACLU about why the Constitution doesn’t allow this is the following: under the equal protection clause, the government – the federal government, the state governments – are banned from discriminating against people based on certain immutable characteristics, one of which is sex. There are permissible uses, where the same medications – estrogen, testosterone and other hormonal medications – can be administered to minors. There are medical disorders where boys have a deficiency of testosterone or girls, have a deficiency of estrogen, or some other conditions where estrogen for girls or testosterone for boys will improve or enable them to treat various medical conditions. So, the argument of the ACLU and the U.S. government was this is discrimination based on sex because only boys are allowed to take estrogen, but girls aren’t, only girls are allowed to take estrogen, but boys aren’t. And so, it’s the kind of sex discrimination that the Constitution was designed to prohibit. Of course, Tennessee’s argument was boys and girls are treated exactly equally. You’re allowed to use these hormones for other medical conditions. What you’re not allowed to use them for is gender reassignment or dysmorphia or for gender-affirming care. You’re not allowed, whether you’re a boy or girl, to take the opposing the opposite sex hormone. That was the argument of Tennessee. It seemed very much like the six justices on that Supreme Court were going to rule in favor of Tennessee. They don’t think there’s anything in the Constitution that bars Tennessee from doing this. Sounds like the three liberal judges based on oral argument are going to rule against Tennessee and say that this is sex discrimination. It’s often difficult to know from an oral argument, other things can happen, so, it’s not 100% guaranteed, but it seems like that’s the likely outcome. The question, though, is how we got to the point where a gay and lesbian movement that began being called the gay and lesbian movement at some point took on the B four bisexual and at some point, later on, took on the T and became the LGBT movement – now the LGBTAI+ Q movement, whatever, mix of those that you prefer – how did they get to this point where for decades the basis and principle of this movement was adults have the right to make decisions about their own lives. In the 70s and 80s and 90s and 2000s when this was being actively debated, opponents of gay rights or same-sex marriage would raise the issue of children. The argument was immediately the same from advocates of this movement, which is we have nothing to do with children. It’s not about children. We aren’t talking about children. We’re talking about adults, adults who have the right to love whom they want, to spend their lives with whom they want, to conduct their own private lives how they want without the government making it illegal or tying them with whom they can and cannot share the life with whom they can and cannot enjoy equal legal rights. And that was always the basis for the argument was adult autonomy. I remember this movement. I participated in it from the time that I was politically active. Obviously, it was an important part of my life and that was always the central animating principle. Suddenly, over the last few years, we’ve gotten to the point where this movement that had always denied it had any interest in children and only had an interest in adults didn’t just switch from same-sex couples and the equality of same-sex marriages to trans issues – providing housing and employment rights to trans people to make sure they’re not discriminated against, that they have the right as adults to be treated with dignity and respect, as all American adults do, who aren’t breaking the law. But it wasn’t even that they specifically went to an area that was very obviously going to produce an enormous amount of backlash and for which there was very little popular support, which is the rate of “trans kids” beginning at first with post-pubescent teenagers, 16, 17, moving back to early post-pubescent teeners 13, 14 now going to pre-pubescent children, talking about therapies of gender reassignment for kids who are eight or seven or six. And the question is, how did we get here? So, I want to look at this question from a different perspective for the moment than looking at the LGBT movement. I want to look at something the Anti-Defamation League did today, because, for me, it is extremely similar in terms of the institutional dynamics that cause these kinds of advocacy groups to engage in this sort of advocacy, seemingly designed to always insist that they’re facing bigotry and discrimination, almost generating it on their own by taking the most extreme and unpopular positions. The ADL on December 4, just a couple of days ago, issued a press release that claimed the following: |
John Barleycorn 
You must be logged in to post a comment.