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Justice Clarence Thomas during a 2018 legal discussion (YouTube/Library of Congress).
On Wednesday, the conservative majority of the U.S. Supreme Court delivered a 6-3 ruling supporting Tennessee’s decision to uphold a ban on specific medical treatments for transgender minors. Justice Clarence Thomas wrote a concurring opinion, criticizing “self-described experts” as “irrelevant” and advocating for judicial restraint should other states decide to follow Tennessee’s lead.
In the case of U.S. v. Skrmetti, the majority, with Chief Justice John Roberts at the helm, concluded that Tennessee’s law, SB1, which bars specific medical interventions for transgender minors, is not subject to heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment and meets rational basis review criteria. This outcome marked a significant defeat for three transgender teenagers and their families who contested the restrictions on puberty blockers and hormone therapies.
The high court declined to say that the law discriminates based on sex in light of Justice Neil Gorsuch’s 2020 opinion in Bostock v. Clayton County.
“We have yet to explore whether Bostock’s reasoning extends beyond the scope of Title VII, and it is unnecessary to do so in this case. For the reasons already articulated, modifying a minor’s sex or transgender status does not affect the enforcement of SB1,” Roberts stated for the majority.
Thomas’s concurrence began by supporting the majority’s but was mainly written to “address some additional arguments made in defense of Tennessee’s law.”
Among those “additional arguments” was Thomas’ panning of “self-described experts” as “irrelevant,” his criticism of the term “gender-affirming care,” and his skepticism of “medical consensus.”
“Taken together, this case serves as a useful reminder that the American people and their representatives are entitled to disagree with those who hold themselves out as experts,” Thomas wrote, praising the majority for recognizing that the citizens of Tennessee have the “right to decide for themselves.”
“The views of self-proclaimed experts do not ‘shed light on the meaning of the Constitution,”” Thomas continued, citing the Dobbs v. Jackson Women’s Health, the landmark abortion case that overturned Roe v. Wade and its progeny. “Thus, whether ‘major medical organizations’ agree with the result of Tennessee’s democratic process is irrelevant.”
The justice again referenced Dobbs a few lines later when emphasizing the “importance of reserving to the democratic process the right to decide controversial medical questions.”
“In Dobbs, the respondents sought to invoke the authority of ‘overwhelming medical consensus’ and ‘numerous major medical organizations’ to dispatch with Mississippi’s asserted interest in minimizing pain for the unborn,” Thomas continued.
Similarly, Thomas added, the Supreme Court on Wednesday “rightly” rejected “efforts by the United States and the private plaintiffs to accord outsized credit to claims about medical consensus and expertise” on medical care for transgender youths.
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After criticizing the term “gender-affirming care” as a “sanitized description” which “obscures the nature of the medical interventions at issue,” Thomas encouraged the courts to proceed with restraint should other state legislatures embrace similar legislation in the future.
“This case carries a simple lesson: In politically contentious debates over matters shrouded in scientific uncertainty, courts should not assume that self-described experts are correct,” he concluded.
Justice Sonia Sotomayor, “[i]n sadness,” led the dissenting liberals of the court to say the majority twisted “logic and precedent” to uphold a “categorical ban on lifesaving medical treatment[.]”
“Thus, the majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims,” she wrote. “In sadness, I dissent.”
In her concluding paragraph, Sotomayor stated that the majority refused to “call a spade a spade” and, in doing so, did “irrevocable damage to the Equal Protection Clause,” invited “legislatures to engage in discrimination by hiding blatant sex classifications in plain sight,” and authorized “untold harm to transgender children and the parents and families who love them.”
