In next term’s big case of United States v. Skrmetti, the Biden administration is inviting the Supreme Court to concoct a new rule that laws affecting individuals who identify as transgender are subject to heightened scrutiny under the Equal Protection Clause. If the Court commits the gross folly of accepting that invitation, it will spend the next two decades dealing with the consequences, sorting through the hornet’s nest of impenetrable disputes over whether countless laws and policies are “substantially related to an important state interest”:
May states bar certain medical treatments for gender dysphoria in adolescents? The Biden administration has recently said that it opposes surgeries (even as it scrambled, in response to political pressure, to say that it opposes laws that bar such surgeries) but it supports puberty blockers and cross-sex hormones (even as it makes wildly false claims about the supposed evidence for these treatments). How are courts to discern a line that the Constitution supposedly draws? What happens as new evidence develops?
May public schools assign restrooms by sex? If not, may they assign showers and locker rooms by sex? Does it depend, say, on whether the showers are single stall? Or whether they have curtains? Or whether the curtains also protect a changing area? On overnight trips, may public schools assign roommates by sex? May public colleges assign dorm rooms by sex?
May public schools and colleges preserve girls’ and women’s sports? Does it depend on whether the sport involves physical contact? Does getting slammed in the head by a volleyball count? Does it depend whether a male who wants to take part in girls’ or women’s sports took puberty blockers and cross-sex hormones beginning at a certain age? Does it depend (as one version of International Olympic Committee rules provided) on whether he can demonstrate that his total testosterone level in serum has been below 10 nmol/L for at least 12 months? Does it depend whether the boy hasn’t yet undergone puberty? Does it depend whether he is winning competitions and defeating top female athletes?
Must health-insurance plans for public employees cover medical treatments for gender dysphoria? Must they cover surgeries? What should the deductible be, and what caps may apply? Must “de-transitioning” treatments also be covered? How about if an individual has a third round of surgery to undo the effects of undoing the first round?
May male prisoners who identify as female be housed in prisons for men? Does it depend whether they’ve had their genitalia lopped off? Or whether their testosterone is below a certain level? Do they have a right to transgender medical treatments? What process must be used to answer that question? What happens as new evidence develops? If they are housed in prisons for women, do they have a right to share a cell with female prisoners?
I’ve written this list in just a few minutes, and I’m sure it’s very incomplete. The only sensible approach, and the constitutionally sound approach, is to leave these matters to legislators and policymakers to address and sort out over time.