This week on Blocked and Reported, a deeper dive into the recent Supreme Court decision on youth gender medicine and its aftermath. Plus, the Washington Post’s unconventional plan to make a few bucks.

Note: After we recorded this episode, Mark Joseph Stern sent Jesse an email laying out his views and responding to Jesse’s b******g on Twitter. That email is below and we’ll discuss it, plus any further correspondence those two have, at the top of the next free episode.

Hi Jesse,

Although I'm not on Twitter anymore, a friend flagged your tweet about my coverage of Skrmetti and your question about sex discrimination. I would like to help explain why SB1 does, indeed, discriminate on the basis of sex in a way that triggers heightened scrutiny under the equal protection clause.

First, I'll note that while the term "sex discrimination" is more common in media coverage, the more accurate legal standard is "sex classification." (The court's canonical cases, like Reed v. Reed and U.S. v. Virginia, favor this term.) The two can be used interchangeably, but I think "classification" is a little clearer for the purposes of addressing your arguments.

You, and the Skrmetti majority, are undoubtedly correct that SB1 classifies on the basis of medical condition. But to do so, at least under many circumstances, it must also classify on the basis of sex. I see that you're suspicious of one way I've been explaining this: a cis boy can receive testosterone to develop more male features, while a trans boy cannot. I still think that example works as a legal matter, even if such treatment for a cis boy is uncommon in real life. (Although—is it? Don’t doctors prescribe testosterone to cis boys with delayed puberty to jump-start secondary sex characteristics that are fundamentally cosmetic, like facial hair?) So set it aside.

Consider instead an adolescent cis boy who experiences gynecomastia, unwanted but harmless growth of breast tissue. Under SB1, he may still receive testosterone therapy to reduce his breasts. Not because the excessive growth of tissue is medically harmful, but because he does not wish to appear to have breasts, as they are incongruent with his gender identity. But an adolescent trans boy may not, under SB1, receive the same treatment to achieve the same effect—reduction of breasts that are incongruent with his gender identity. Why?

I take it you would say: Because the trans boy seeks the treatment for gender dysphoria, whereas the cis boy seeks it for gynecomastia. True enough, but irrelevant for the purpose of deciding whether the law classifies on the basis of sex. That's because, in addition to classifying on the basis of medical condition, the law classifies on the basis of sex to determine who may receive the same treatment to achieve the same outcome. An adolescent's access to testosterone to reduce breast growth turns on the sex they were assigned at birth. Those assigned male can get testosterone; those assigned female cannot. Thus, the law classifies patients on the basis of sex, and triggers heightened scrutiny under the equal protection clause. Put differently, to determine the medical condition—gender dysphoria or gynecomastia—a doctor must consider the patient's sex assigned at birth. That consideration, under longstanding precedent, compels heightened scrutiny.

It is not uncommon for laws that classify on the basis of sex to classify on other bases as well. For instance, in Morales-Santana, the law at issue classified on the basis of a parent's physical presence in the United States. That, all agree, was permissible. But the law also classified on the basis of the parent's sex. And that, the court held, created a "gender line" that triggered heightened scrutiny. There is a similar dynamic at play in Skrmetti. Yes, the law dictates what treatments a minor may receive based on their medical condition. But to do so, it must classify minors on the basis of sex. And that, under the court's precedents, should be enough to trigger heightened scrutiny.

I will note that, as you know, the question of whether a law classifies on the basis of sex is only the first step of the analysis. If the answer is yes, the next step is to apply heightened scrutiny by asking whether the law serves important governmental interests and is substantially related to the achievement of those interests. I think your objections probably lie in this second step; to return to my example, you may think the government has a strong interest in preventing minors with gender dysphoria from altering their bodies, and you believe SB1's restrictions are sensibly drawn to encompass those cases while allowing cis minors to receive the same treatments. But even if that is correct (and I won't opine on it here), SB1 still classifies on the basis of sex, requiring the application of heightened scrutiny to survive constitutional muster. And in my view, the Skrmetti majority erred in denying that reality.

Best,

Mark

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