Big US legal case decided by Supreme Court - US v Skrmetti

[AtoC]

It's nice to know that our US cousins are gradually catching up.

A few hours ago the US Supreme Court issued its judgment in this case. It was all over Twitter (I still can't get used to calling it "X").

@Britinme also made a quick post about it on another thread earlier today:

https://www.mumsnet.com/talk/womensrights/5312100-womens-rights-general-conversations-thread-10?reply=145087328

Although the US is really quite a long way behind the UK on this issue in some respects, this ruling is really quite big news. It comes from the Supreme Court so all the States must follow this ruling.

It's quite a long story but, essentially, this is the US version of the Court of Appeal case, Bell v Tavistock NHS Trust back in 2021.

However, they went much further than our Court of Appeal.

In Bell v Tavistock ([2021] EWCA Civ 1363) the Court of Appeal said that children over the age of 16 or who were younger and Gillick competent could be given puberty blockers.

However, NHS England then decided anyway to discontinue using puberty blockers for children in 2024 (apart from some "trials") following the Cass Review.

The situation in the US came about due to a case from Tennessee. They passed a law that said it was illegal to provide puberty blockers to children under the age of 18.

A company that provides these puberty blockers (along with the parents of three children) then brought a claim against Tennessee (the Attorney General of Tennessee is John Skrmetti, hence the name of the case).

The case eventually worked its way up to the Supreme Court which is where we arrive at today.

https://www.supremecourt.gov/opinions/24pdf/23-4772cp3.pdf

It's a long read (118 pages).

The judgment was divided and there were a number of different judgments given (even when they agreed with the majority opinion).

But, in one sense, the US are now ahead of us. It would appear that laws banning even "trials" of puberty blockers on children are now fine in the US.

Of course, newspapers like the Guardian described it as "Ruling is devastating loss for trans rights supporters in case that could set precedent for dozens of other lawsuits"

That was the argument put forward by the parents and the medical company.

The Supreme Court rejected that argument and said that the Tennessee law doesn't discriminate on the basis of sex, but only on age and medical use (ie the purpose for giving those drugs).

The law says that adults can obtain puberty blockers (PBs) and hormones for gender dysphoria but children cannot. It also says that children of both sexes can be given PBs and hormones for certain medical conditions but specifically not for gender dysphoria.
.

The plaintiffs put their claim in two different ways. Firstly that since the bill specifically used the word "sex" it must be discriminating on the basis of sex. Secondly, that the way the law is applied is based on sex.

The main argument was that testosterone was banned from being given to girls but not to boys and oestrogen was banned from being given to boys but not to girls.

The Supreme Court rejected this and said that this ignored the key aspect of any medical treatment; that is what is the underlying medical concern the treatment is intended to address.

A particular drug, they said, can be licenced to treat different medical conditions. There are some drugs that are licenced for only one sex for a particular treatment (eg many breast cancer treatments are only approved for women and some HIV treatments are only approved for men).

So, in a medical context, the mere use of sex based language does not mean that a law is necessarily discriminatory.

The Supreme Court said that when talking about a "medical treatment" that must encompass not only the drug given, but also the reason (ie the underlying medical condition you're trying to treat) why it was given.

So, when a boy receives PBs to treat gender dysphoria that is a different "medical treatment" to when a girl receives PBs in order to treat her precocious puberty.

The same thing applies where testosterone is given to a girl to treat gender dysphoria compared to when it is given to a boy in order to treat hypogonadism.

Deleted because preceding post goes into much greater depth.

Another so called intelligent person speaking through her arse, maybe she should stick to the law when she's given a dissent and leave biology to more qualified people. There's no sex discrimination in this ruling.

The Supreme Court said that when talking about a "medical treatment" that must encompass not only the drug given, but also the reason (ie the underlying medical condition you're trying to treat) why it was given.

Well quite.

I typed “Skrmetti” into YouTube and got a lot of response. Some even look balanced. Jonathan Skrmetti held a 25 minute press conference.

Supreme Court sounds sensible over there, too. I wonder if this is because courts' procedures and structures were based on before-times rationality. And I wonder if they were created again now whether they'd retain that ability. Or whether it's just a case of sober, experienced, intelligent people looking carefully at the evidence and asking questions and applying genuine critical thinking?

@ArabellaScott
In this case, the republican nominated judges voted one way and the democrats the other. Current split is 6-3 Rep-Dem. US Supreme Court is often criticised for political bias. I don’t know enough to have an opinion, but in certain cases it seems the leanings of the justices is pretty clear.

Unfortunately you're seeing a decision that's come from a split along the progressive-conservative fault line. The 6 conservative justices referred in the judgment of the court to things like the Cass Review and the fact that the fundamental argument in support of "gender affirming care" was legally flawed:

... the Cass Review determined that the “evidence [the researchers] found did not support th[e] conclusion” that “hormone treatment reduces the elevated risk of death by suicide” among children suffering from gender dysphoria. Cass Review 33; see also id., at 187 (“[T]he evidence does not adequately support the claim that gender-affirming treatment reduces suicide risk”)

While the 3 progressive judges applied the non-legal doctrinen of #bekind and referred to things like the increased risk of suicide in "trans youth". Their view was represented by the dissent opinion of Justice Sotomayor which, to be frank, contains plenty of gaslighting nonsense:

Suicide, in particular, is a major concern for parents of transgender teenagers, as the lifetime prevalence of suicide attempts among transgender individuals may be as high as 40%.App. to Pet. for Cert. 264a. Tragically, studies suggest that as many as one-third of transgender high school students attempt suicide in any given year.

What saved the day for the safeguarding of children was Trump packing the court with conservative justices.

@nauticant I do find that strange because Chase Strangio of the ACLU did say as part of his evidence that trans children don’t commit suicide,

I know I have only heard soundbites but one does wonder if they ever read evidence placed before them?

I can't be pleased over any Supreme Court decision, even when I agree with the outcome, because the whole system is an antidemocratic sham: judges who are supposed to decide cases on the basis of the Constitution instead twisting it to support their own preconceived political views.

Oh, I see. Well, that's depressing.

The judges shouldn't surely be involved in political parties at all, at least not overtly?!

You're not wrong in finding that strange. Justice Sotomayor seemed to put her own feelings above evidence and above sound legal reasoning.

In an unusual (but not forbidden) move she read her dissenting opinion aloud speaking for nearly 15 minutes. She seemed to want to shame the 6 conservative justices and to broadcast her own virtue.

Party-line decisions in the SC aren't that common, really. When it was a 5-4 split the liberals probably won more than they lost on controversial issues, and even at 6-3 they've a decent chance of a win. All they need is to stay in lockstep, which they usually do, and peel off two conservatives, which is far from impossible because the six are always arguing with each other.

Because the six Republican-appointed justices can be further broken down into two hardcore conservatives (Thomas and Alito), three cautious institutional conservatives (Roberts CJ, Kavanaugh and Barrett) and one idiosyncratic libertarian who's really hard to predict and will often side with the left on anti-discrimination cases (Gorsuch). Additionally Roberts likes his narrow rulings and is paranoid about 5-4 rulings on anything controversial, so if it looks like a partisan split he's likely to join the majority and limit the scope of the ruling.

The fact that it was 6-3 just tells me that the three didn't have anything that would convince any of the six, even Gorsuch who wrote the Bostock ruling on sexual orientation and gender identity in the workplace, and you can tell they wanted to because all Sotomayor has apart from #BeKindism is leaning on the Bostock reasoning and trying to apply it to this quite different case.

Fair point

@SionnachRuadh thanks for the précis.

Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson

All 3 owe their positions to Obama. Who owes his position to J B Pritzker. Big in Illinois and in the Trans Machine.

This isn't a surprise, they had no choice but to vote this way.

Sotomayor dressed up activism as a dissenting opinion:

"Transgender adolescents’ access to hormones and puberty blockers (known as gender-affirming care) is not a matter of mere cosmetic preference. To the contrary, access to care can be a question of life or death."

Then there's plenty that's just highly deceptive:

"Consider the mother who contacts a Tennessee doctor, concerned that her adolescent child has begun growing unwanted facial hair. This hair growth, the mother reports, has spurred significant distress because it makes her child look unduly masculine. The doctor’s next step depends on the adolescent’s sex. If the patient was identified as female at birth, SB1 allows the physician to alleviate her distress with testosterone suppressants. See App. to Pet. for Cert. 266a (describing such treatments); App. 100 (same). What if the adolescent was identified male at birth, however? SB1 precludes the patient from receiving the same medicine."

[SB1 is shorthand for the anti-gender medical treatments in Tennessee.]

The conservative justices might be rueing the day that they allowed dodgy reasoning in the Bostock judgment to get to an outcome that was considered to be just (rather than coming from logic and sound legal principles):

“it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex ... that discrimination based on incongruence between sex and gender identity was discrimination “because of sex”