Among the many defects in the Solicitor General’s merits brief in United States v. Skrmetti is her distorted attack on Tennessee’s declared interest in “encouraging minors to appreciate their sex.” The SG actually concedes that Tennessee’s law against transgender medical interventions on minors is “perfectly crafted to serve [this] interest.” But she contends that the interest is “illegitimate” because it supposedly “rests on ‘stereotypic notions’ about gender.”
As we shall see, Tennessee’s declared interest in “encouraging minors to appreciate their sex” does not in fact rest on any “stereotypic notion” about gender. On the contrary, it is transgender ideology that is built on stereotypes about what it means to live as a man or as a woman. As Vanita Gupta, a leading transgender ideologue in the Department of Justice in both the Obama and Biden administrations, has put it:
Transgender men [i.e., women who identify as men] are men — they live, work and study as men. Transgender women [i.e., men who identify as women] are women — they live, work and study as women. [Emphasis added.]
It’s impossible to even begin to make sense of Gupta’s statement without adopting stereotypes of what it means to “live, work and study as men” and to “live, work and study as women.”
Relatedly, DSM-5 (the Diagnostic and Statistical Manual of Mental Disorders)—the reference book published by the American Psychiatric Association—incorporates stereotypes into its criteria for diagnosing gender dysphoria in children:
- “A strong preference for the toys, games, or activities stereotypically used or engaged in by the other gender.”
- “In boys (assigned gender), a strong rejection of typically masculine toys, games, and activities and a strong avoidance of rough-and-tumble play; or in girls (assigned gender), a strong rejection of typically feminine toys, games, and activities.”
- “A strong preference for cross-gender roles in make-believe play or fantasy play.”
By contrast, the SG has to concoct Tennessee’s supposed “stereotypic notions.” On a remarkable ten occasions, the SG quotes Tennessee’s stated interests in “encouraging minors to appreciate their sex” and in prohibiting treatments “that might encourage minors to become disdainful of their sex.” She asserts that these interests embody an illegitimate purpose of “encouraging boys and girls to look and live like boys and girls.” (Internal quote omitted.) But there is no reason to read Tennessee’s interest so narrowly and tendentiously.
One good reason to “encourag[e] minors to appreciate their sex” is to ensure that they understand that they have a natural capacity to become fathers and mothers—“to develop into adults who can create children of their own,” as the same findings state—and to spare them from the damage to that natural capacity that genital mutilation, puberty blockers, and cross-sex hormones can entail. That purpose is entirely compatible with an expansive, indeed unconstrained, view of how boys and girls “look and live.” Nothing in it remotely suggests how boys and girls should dress or how long their hair should be or what games they should play. Instead, it is transgender ideology that advances the stereotypes that a girl, in order to be a “transgender boy,” must, say, deepen her voice and that a boy, in order to be a “transgender girl,” must develop breasts.
More broadly, what is really at stake—as Texas justice James Blacklock explains in his excellent recent opinion—is an unresolvable metaphysical clash between two fundamentally different understandings of what it means to be male and female. Under what Blacklock labels the “Traditional Vision,” “a boy is a boy, a girl is a girl, and neither feelings and desires nor drugs and surgery can change this immutable genetic truth, which binds us all.” By contrast, under the “Transgender Vision,” whether a person is male or female depends on the person’s subjective “gender identity,” which might or might not correspond to the person’s biological sex.
Tennessee’s interest in “encouraging minors to appreciate their sex” reflects the Traditional Vision, which has persisted throughout more than 200 years of American history and which was essentially unchallenged until the day before yesterday. The simple bottom-line issue in this case is whether Tennessee is allowed to continue to hold that vision. There is no neutral, middle-ground alternative. The only other alternative is to hold that the Constitution somehow requires that Tennessee adopt the Transgender Vision.