The Constitution doesn’t protect sex-change procedures for minors, an expert in civil rights law told The Daily Signal as the Supreme Court announced it would weigh the issue after its next term begins in October.
The highest court in the U.S. agreed Monday to hear a Justice Department lawsuit against a Tennessee law, passed last year, that bans gender surgeries and cross-sex hormones for those under 18.
The Biden administration alleges that the state violated the Constitution’s equal protection clause by excluding children who say they are transgender from “essential medical care.”
The administration’s claims “don’t hold water” because a variety of laws reserve significant decisions for adults, Sarah Parshall Perry, a senior legal fellow at The Heritage Foundation’s Meese Center for Legal and Judicial Studies, told The Daily Signal.
“States have the power to democratically enact laws that protect minor, vulnerable populations—as evidenced by age limits on alcohol, tobacco, contracting, driving, and more,” Perry said. “The Supreme Court has long recognized that minors lack the maturity and intelligence to make life-altering decisions.”
“To overcome this judicial history,” she added, “the DOJ would have to successfully argue that the laws are discriminatory in nature and violate the equal protection clause of the 14th Amendment.”
The Justice Department’s Civil Rights Division has sued multiple Republican-controlled states for restricting sex-change procedures. Its petition to the Supreme Court argues that such laws “discriminate based on sex and transgender status” and therefore must pass a judicial standard known as intermediate scrutiny.
“In other words,” Perry told The Daily Signal, “Tennessee would have to prove the law furthers an important government interest and must do so by means that are substantially related to that interest.”
“Even under this heightened standard … the state’s defense would stand,” said Perry, who previously was a senior counsel in the Education Department’s Office for Civil Rights as well as a civil rights litigator. “There can be no more important interest than protecting vulnerable adolescents from the life-long complications of these interventions, and the possibility of debilitating regret.”
The Supreme Court’s conservative majority issued an emergency order in April that allowed an Idaho ban on such medical procedures to take effect amid a lawsuit from the American Civil Liberties Union.
The Tennessee case before the high court will decide the fate of children in at least 25 states that have passed similar restrictions.
The Supreme Court’s next term begins in October and a decision in the case is expected by July 2025.
