Whose voice was that on the recording?
The Biden Administration is paving the way to ban trans surgeries and hoping the courts basically stop it.
Read between the lines. You all lost.
High Court Argument Promotes Targeted Limits on Transgender Care
The Biden administration’s concession this week that states can reasonably limit when minors may receive gender-affirming care could provide a stronger legal basis for state laws that restrict treatments, attorneys say.
High Court Argument Promotes Targeted Limits on Transgender Care
Summarize
The Biden administration’s concession this week that states can reasonably limit when minors may receive gender-affirming care could provide a stronger legal basis for state laws that restrict treatments, attorneys say.
In oral arguments before the US Supreme Court, US Solicitor General Elizabeth Prelogar argued that Tennessee’s law prohibiting the use of puberty blockers, hormone therapy, and surgery for those under 18 wasn’t specifically tailored to advance the state’s interest of protecting the health and welfare of minors.
But Prelogar went on to say that “there is a real space for states to regulate here,” citing a West Virginia law that in part requires at least two different doctors to diagnose a minor with gender dysphoria before they can receive treatment.
While a majority of justices voiced skepticism to the federal government’s argument that the Tennessee law is a form of sex-based discrimination that violates the Constitution’s equal protection guarantee, legal analysts say the argument on West Virginia’s approach could be used in the future to defend state laws that limit access to gender-affirming care for minors but stop short of completely banning treatments.
“Even if states suffered a temporary setback that said they couldn’t outright ban” care for minors, states could still “push such a draconian regulatory package that effectively eliminates access to care or makes it basically inaccessible to anyone,” said Alejandra Caraballo, a clinical instructor at Harvard Law School’s Cyberlaw Clinic who has worked on LGBTQ+ civil rights litigation.
‘Tailored’ Laws
A total of 26 states have enacted laws or policies limiting youth access to gender-affirming care, with nearly 40% of transgender youth ages 13 to 17 currently living in states with restrictions, according to KFF.
The Biden administration and major medical associations have argued the Tennessee law and those like it go against standard medical practices for treating transgender youth.
Prelogar argued Wednesday that West Virginia took a different approach by taking into account studies defending the benefits of gender-affirming care and imposing “a set of guardrails that are far more precisely tailored to concerns surrounding the delivery of this care.”
In addition to the two-doctor requirement, the West Virginia law also requires the diagnosing medical professionals to express in written opinions that the treatment is necessary to “treat the minor’s psychiatric symptoms and limit self-harm, or the possibility of self-harm.”
The minor or the minor’s parents must also agree in writing to the provision of treatment for gender dysphoria—the psychological distress caused by the incongruence between a person’s gender identity and sex assigned at birth.
“A law like that is going to fare much better under heightened scrutiny,” Prelogar told the high court, referring to the legal standard used by courts to evaluate whether a law’s sex or other characteristic-based classification advances a substantially relevant state interest.
Nicole Huberfeld, a health law professor and co-director of the Boston University Program on Reproductive Justice, agreed with Prelogar’s assessment, saying that “if a state wanted to adopt a gender-affirming care ban, the West Virginia model appears to be the safer path.”
If a state adopted this model, “then that state would be better able to argue that its law is not just rooted in bald prejudice but rather in taking access to gender-affirming care slowly as the science develops,” Huberfeld said.
She argued, though, that taking this approach could lead to states pursuing exceptions that “may be as difficult to apply as abortion ban exceptions.”
Health-care providers have repeatedly criticized exceptions in state abortion bans that allow for the procedure in medical emergencies or in cases of rape or incest, citing situations in which patients should have qualified for care but were unable to get it.
Caraballo said the West Virginia approach could also create incentives for gender-affirming care laws similar to targeted regulation of abortion provider, or TRAP, laws, including those that impose regulations on physicians’ offices where abortions are performed or require that abortion providers have an affiliation with a local hospital.
Biden Win Unlikely
The question over whether gender-affirming care limits for minors should be more narrowly tailored may only come up if the high court sides with the Biden administration in this case, said Thomas Jipping, a senior legal fellow at the Heritage Foundation.
“The question of tailoring is only relevant if it’s a higher standard of proof—in other words, if the justices conclude that the law is a sex-based classification,” Jipping said.
“I will not be surprised if at least five or six justices say, no, it’s not, it applies the same restriction, regardless of sex.”
But if justices say it is a sex-based classification that isn’t sufficiently justified, “it would be obviously wise for states that wanted to pass a restriction like this to modify it accordingly, whether that would be in the way West Virginia’s done or in another way,” Jipping said.
When asked Wednesday by Justice Clarence Thomas about West Virginia’s law, Tennessee Solicitor General Matthew Rice said the “arguments with respect to the alternative approaches is pure policymaking.”
“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,” Rice said.
Theres no evidence of this, especially in Europe that has retracted all of their gender clinics for youths
