A high court case that challenges the rule of law

By Phil Lawler ( bio - articles - email ) | Dec 04, 2024

As I write, the US Supreme Court is hearing oral arguments in a case that would leave the founders of the American republic shaking their heads in disbelief, appalled that the court they established would indulge in such a distasteful theater of the absurd.

The case involves a challenge to the Tennessee law that makes it illegal to give minor children “medical care” that alters their sexual function. Mainstream newspapers, carefully obedient to the directives of gender theory, refer to such treatment as “gender-affirming care.” That Orwellian term conceals the reality that the treatments are intended for patients who deny their natural gender. The “medical care” involved does not ensure, but in fact frustrates, the natural functions of the body, at times by mutilation. It is not medical care, it does not affirm anything, and for that matter it does not change the patient’s gender, because one’s gender—or rather one’s sex—is fixed at birth. [See correction below.]

But leave all that aside for a moment, and ask yourself: Why is this case being heard by the Supreme Court? Where in the US Constitution is there any hint about which medical procedures a state may or may not restrict?

You might say that horse left the barn in 1973, when the Roe v. Wade decision overturned all state laws regulating abortion. But the Dobbs decision corrected that error, at least partially, by returning the question to the states. If state laws can impose some restrictions on abortion, why not on the mutilation of children?

Notice, too, that we are talking about children in this case. Various state laws restrict the ability of minors to purchase alcohol, to marry, to join the armed forces, or sign a binding contract. Why? Because states have always questioned the judgment of minors, and therefore the wisdom of allowing impulsive young people to make decisions that could permanently alter their lives.

But because this case involves questions about human sexuality, to which the “woke” ideology insists that normal logic cannot be applied, the solons of our highest court are doing their best to keep straight (excuse the expression) faces while a lawyer who goes by the name “Chase Strangio,” a woman masquerading as a man, identified by the compliant mainstream media as “he,” argues that the Tennessee law is a violation of fundamental constitutional rights.

Unfortunately we have been playing this game for so long that otherwise intelligent people fail to recognize that we have, somewhere along the line, stepped through the looking glass into that world in which logic is left behind. Justice Ketanji Brown Jackson says that she is “still seeing a role for the Constitution” in this case, because it seems to be “implicating the equal-protection rights of [Tennessee] citizens.”

Would it ease Justice Jackson’s mind, I wonder, if the Tennessee law banned “gender-affirming” treatment for all people, minors and adults alike? Is she concerned that one class of people—the young—are being treated differently? But minors are always treated differently under the law.

And in any case, Justice Jackson’s main concern is not about age discrimination. She worries aloud, in today’s oral arguments, that a ban on sex-altering treatment is similar to a ban on inter-racial marriage. I cannot explain the logic behind that comparison; it escapes me entirely. But I will remind readers that it was Justice Jackson who, during her Senate confirmation hearings, announced that she could not define the term “woman.” So I’m afraid I cannot regard her as an authority on matters involving human sexual identity.

Sadly, the problem that we face is not only the resistance to logic exhibited by Justice Jackson. When she refused to attempt a definition of “woman” during those confirmation hearings, she signaled—loud and clear—that she would disable her logic circuits at the bidding of gender ideologists. And a majority of the US Senate voted to confirm her anyway.

But if what Justice Jackson really views with suspicion is a law that treats one class of people—those who want medical treatment to change their sexual function—differently, then again a law against all such medical treatment would seem to eliminate her concern. A law written in that way would give all the citizens of Tennessee (or any other state so inclined) the same level of access to sexual-mutilation surgery: None. State laws treat other forms of behavior the same way, after all. Unless I am mistaken, in Tennessee there are some people who feel the impulse to rob banks, and some who do not; the state’s laws treat them equally. The state government in its wisdom has decided that robbing banks is not a good thing. Implicit in the challenge before the court today is the idea that changing one’s sexuality is, at least in some cases, a good thing. Is the state barred by the Constitution from making that judgment? Ask that rhetorical question, stay silent for a moment, and you can almost hear the whir as James Madison and Alexander Hamilton and George Washington spin in their graves.

So now the Supreme Court is treating seriously the arguments that children, who are not allowed to make life-altering decisions, should be allowed to make life-altering decisions; and that the term “medical care” should be expanded to include treatments that interfere with the workings of healthy body parts and even remove perfectly healthy organs. And above all, that a man can, by unilateral declaration, make himself a woman, and insist that society pays to humor him in that imposture, even when the DNA in every cell of his body proclaims the medical reality.

In the end, therefore, the most important question before the Supreme Court is not whether sex-change operations are proper medical care, nor whether minors should be protected, nor even whether the Constitution allows state regulations of these treatments. The real issue is whether legal decisions must be guided by evidence and logic.

Chase Strangio, the lawyer challenging the Tennessee statute, said it herself: “Whatever happens we are the defiance.” Exactly: defiance of the rule of law.

---

CORRECTION:

Actually a child’s sex is fixed long before birth. Indeed the current popularity of the “gender reveal party,” in which expectant parents announce the sex of their unborn child, is one more indication of the howling inconsistencies in our society’s attitude toward this question.