ACR Project Files Amicus Brief supporting Tennessee in U.S. v. Skrmetti

In U.S. v. Skrmetti, the Biden Administration would have the Court declare that the Equal Protection Clause prevents states from protecting children from potentially harmful medical interventions, when those interventions are related to children’s purported “gender identities.”  You can read our related brief, filed today, below.  In it, we explain that this is wrong, regardless of what the Court decides a potentially ephemeral “gender identity” at odds with one’s biological sex legally is and–as a result of the answer to that question–the level of scrutiny it applies to this statutory challenge based on it.

Scrutiny Options

The Court could has three potential standards available.  Most properly, because “gender identity” is not sex or race or meaningfully like them, it should engage in rational-basis review.  That’s the default standard applicable everywhere no valid exception applies.  It would then ask only if Tennessee could have thought its statute would serve a legitimate interest (that is not a pretext); if so, the statute would satisfy the Equal Protection Clause.

If the Court finds “gender identity” to be sufficiently akin to a sex classification to justify it, though, it could apply the kind of “intermediate” scrutiny it developed to gauge the Constitutionality of sex-discriminating governmental programs.  The Court would then search for an “exceedingly persuasive” justification that a challenged policy is “substantially related” to.

Alternatively, it could apply (and for the first time fully explain) the “heightened” scrutiny the Court has applied over the last decade in challenges to sex-discriminating policies adopted by governments in their sovereign capacities.  The Court would then search for “lump characterizations” across sexes or “gender identities” and demand a discriminatory policy exhibit a “close means-end fit” in order to survive.

Tennessee Statute Satisfies Any Available Option

Under any of these options, the Court should find Tennessee to have acted Constitutionally in restricting the administration to children of potentially dangerous medical treatments.

Tennessee Statute Also Provides Due Process

While the Court took this case on DOJ’s petition, it began as the private litigation of parents against the state.  Those parents asserted that, in addition to Tennessee violating the Equal Protection Clause, it violated the Due Process Clause in denying them the right to obtain the treatment they felt best for their child locally.  Because their parallel petition remains pending before the Court and because the Court has the right to resolve this case on any basis, our brief addresses the flaws in this line of reasoning.  We explain that Tennessee’s challenged law violates no right “deeply rooted” in American history or tradition, given the relevant history, practices, and prevailing legalities since common law.  We specifically note the relevance of the modern trend of: (a) states using the same power to bar parents from subjecting their children to conversion therapy, (b) parents advancing the same arguments  against those laws, and (c) the courts uniformly rejecting them.

We warn that the Court cannot recognize a “substantive” Constitutional right for parents to obtain for their children sex-transition treatments states find potentially dangerous without simultaneously creating a parallel right of all parents to subject their children to conversion therapy.