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Part I

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A Win for Sanity at the Supreme Court: SCOTUS Sides with Tennessee in Ban on So-Called Transgender Treatment for Minors

Yesterday the Supreme Court of the United States sided with the state of Tennessee. That state had overwhelmingly adopted legislation that prohibits so-called transgender treatments for minors, that is to say children and adolescents under the age of 18. The state of Tennessee thus became one of about half of the states in the union that have legislatively adopted some kind of limit on so-called transgender treatments.

Some of those children and teenagers, or actually their families, filed suit against the Tennessee law, stating that this was an infringement on medical care and a violation of the Constitution’s equal protection clause. And that went all the way to the federal courts. A district court held for the families, that is to say for the transgender teens that would’ve struck down the Tennessee legislation.

The sixth Circuit, that is to say the U.S. Court of Appeals for the sixth Circuit, sided with the state of Tennessee, saying that the state’s action, the legislation, did not violate the Constitution. And yesterday, a very clear majority, six-three majority of the Supreme Court sided with the state of Tennessee.

The case is known as United States versus Skrmetti. And Skrmetti in this case is Jonathan Skrmetti, the Attorney General of Tennessee, and it was named in terms of the original case. And the Supreme Court case now, the decision handed down yesterday, puts his name in the legal history of the United States.

It is a very important case and once again, we see that the case that was settled yesterday, the decision handed down yesterday, is incredibly important when you put it in the context of what would’ve happened, had the court ruled the other way. Now, this is one of the issues we’ll have to consider, but it just goes back to the fact that one person gets to nominate justices to the United States Supreme Court.

That person is the President of the United States. Thus, it matters tremendously who is sitting in the White House behind that desk in the Oval Office. It matters hugely who will be making nominations to the federal courts in general, but particularly to the Supreme Court of the United States. This six-three decision, and that recognizes the fact that there are six conservatives on the court, that was made possible by successive elections of Republican presidents who had pledged to appoint conservative jurists to the nation’s highest court. That is to say in contrast that if the Democrats had won those elections and a Democratic president had been sitting behind that desk, you’d be looking at something very different than this decision. You’d be looking at a liberal majority, a progressivist leftist majority on the Supreme Court.

I just want to state, even at this point in our consideration today, it just underlines the incredible importance of presidential elections. Of course, there’s more to it than that, because those nominations must be confirmed by the United States Senate, so just add the Senate and elections to the Senate in terms of the importance of these issues.

It is just a reminder to us that in a constitutional system, those who are the elected representatives, those who are the jurists and the judges, the justices appointed through that process, they have incredible power. And when it comes to the Supreme Court, and especially federal judges in general, but U.S. Supreme Court justices specifically, they have a life term, which is to say if you have a problem, you’re going to have a very long problem, at least in most cases. If you have a good justice, your hope is that justice will serve a very long term. But to summarize, just once again, it matters who is sitting on that court and a case like this makes that very clear.

So in the majority opinion by the court, written by the Chief Justice himself, John G. Roberts Jr., there was a very careful parsing of the issues. That’s what the Supreme Court does. It isolates the issues and it isolates the arguments, and it then brings constitutional analysis. In the majority opinion, the Chief Justice says, “Look, the state of Tennessee in terms of this legislation, was making two different distinctions.” Those distinctions came down to number one, the distinction based on age. The law applies to those who are minors legally defined, all minors, those who are under age 18, they’re all covered. It is a law that differentiates, indeed discriminates in one sense, on the basis of age.

The second issue of distinction in the Tennessee legislation, the Chief Justice said, is that it makes a distinction based upon whether or not there are certain hormonal conditions that would indicate the necessary use of some kind of medical intervention. And that’s where the Supreme Court came back and said, “You know, those are two distinctions that have nothing to do with sex.” When it comes to the application of the first, that is to say age, that is not an issue that is considered covered under the 14th Amendment, and thus this particular law, even as those who had challenged the legislation claimed, it is not in that sense an infringement of the Constitution. It does not put that law under a stricter context of scrutiny, which would’ve meant that the state of Tennessee might well have been told it didn’t have a constitutional right to pass this legislation.

So this is a very big deal. And it’s a very big deal, because the majority opinion here says there are really two different issues. There are two different issues of distinction. Number one, the distinction of age. Number two, the distinction of appropriate medical treatment. and since it is applied without reference to sex, the majority said, then the state’s law would stand.

The court’s summary of the majority opinion says this, that the state’s law, “does not turn on sex.” “The law does not prohibit certain medical treatments for minors of one sex while allowing the same treatments for minors of the opposite sex.” Instead, the law, “prohibits healthcare providers from administering puberty blockers or hormones to any minor to treat gender dysphoria, gender identity disorder or gender incongruence, regardless of the minor’s sex.”

Okay, that’s really crucial. And you can see very quickly there what would’ve happened if you had a liberal majority on the court. Because the liberal majority almost certainly would’ve taken the position of the three more liberal justices when they said, “No, this is an infringement on constitutional rights, because you have two people here, one’s a biological male, one’s a biological female. You have hormones here, say male puberty hormones. They can be given to the boy who is, say, not experiencing puberty on time, but they can’t be given to the girl. Therefore, that’s discrimination.” The majority came back and said, “No, that’s medicine.”

Two different examples are given, one in the majority opinion, another in the dissent from Justice Sotomayor. They both have a hypothetical teenager. In the case of the chief justice in the majority opinion, the hypothetical teenager is biologically female, but claims to be a transgender boy. And the opinion states, “When, for example, a transgender boy whose biological sex is female, takes puberty walkers to treat his gender incongruence, he receives a different medical treatment than a boy whose biological sex is male, who takes puberty blockers to treat his precocious puberty.” Okay, hold that thought for just a moment.

A contrasting example is given by Justice Sotomayor in her dissent. She says that the Tennessee law operates in an unconstitutional way. She writes, “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, the Tennessee law, “allows the physician to alleviate her distress with testosterone suppressants. But if the adolescent was identified male at birth, the Tennessee law precludes the patient from receiving the same medicine.”

It’s just important to recognize you have two different parables, you might say here. You have one coming from the conservative argument, one coming from the liberal argument, and it just shows that we’re talking about real life situations here. Because you are talking about real children, not just hypothetical children when it comes to the legislation there in Tennessee. And I’m going to argue that the state of Tennessee not only did what is constitutional, but did what is right and morally sane.

And the chief justice in the majority opinion makes that point pretty graphically when he goes back to the history of the transgender movement and points out that even in the original protocols when it came to the treatment of transgender individuals, coming even from transgender-positive medical authorities, it stated that minors should be reserved from these procedures. And you also have a litany of countries, all the way from Finland to the United Kingdom to many others, cited in the majority opinion, stating that these countries have come to the conclusion that there’s more danger to minors when it comes to the use of these treatments than there is advantage, and thus, it is a medical decision. That’s the bottom line of the majority opinion. This is a qualified, justified, medical opinion, in which there is ample evidence to say that more harm than help may come by these procedures. Therefore, the state of Tennessee is justified in making this distinction, the most important distinction being on the basis of age. This is a law that prohibits transgender treatments for minors.?

So we need to be very careful in seeing a case like this, we don’t state that there’s more here than there is. There is not a blanket prohibition on transgender, hormonal or medical treatments or surgical treatments. That’s just not here. It’s not even envisioned in this decision. And as a matter of fact, reading the entire decision, and looking at the opinions and even the concurring opinions, that means opinions that are in agreement with the majority, and then looking at the three liberal justices and what they have to say, here’s the bottom line. There is no indication that this court is about to retreat from the earlier mistake of identifying transgender persons as a class coming under the protection of the 14th Amendment, and then thus basically declaring there’s a constitutional right to be transgender. In some sense, the court was never clear, at least not clear yet about what that means. It has here carved out an exception when it comes to age. That’s the entire point of the Tennessee legislation.

But I want to point to the fact that, embedded in this entire document, when you look at the majority opinion, you look at the concurring opinions, you look at the dissenting opinions, here’s the big problem. The language that is used here just assumes the transgender revolution. Even the majority opinion upholding the law in Tennessee, it in one sense gives away the store by the use of this kind of vocabulary.

On page 12 of the majority opinion, that’s where you find the chief justice’s parable of the so-called transgender boy, there’s even a footnote, “We use transgender boy to refer to an individual whose biological sex is female, but who identifies as male, and transgender ‘girl’ to refer to an individual whose biological sex is male, but who identifies as female.” So embedded even in the conservative majority opinion here, which upholds the Tennessee law, is the idea that there is a reality referred to as transgender boy or transgender girl.

And thus, when you read some of these documents, even the words boy and girl end up being inevitably confused.

Part II

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‘The Experts Have Been Wrong Before’: Justices Thomas Speaks the Truth About Subversion by the Elites

Another vitally important aspect of the decision handed down yesterday, is the fact that there’s a war over the idea of expertise and the authority of experts. And this is where you have a face-off between two of the justices on the Supreme Court, one of them a conservative justice, Justice Clarence Thomas, and the other more liberal Justice Sonia Sotomayor. And here’s where it comes down to this battle over expertise and experts. In the majority opinion, the Chief Justice cites a group known as WPATH, that is the World Professional Association for Transgender Health, and that’s when the Chief Justice pointed out that even in earlier statements in that organization, it was recognized that minors belong to a protected category. They should not come under those treatments. Professional groups changed their policy, and thus several of them are now enthusiastically for transgender treatments for teenagers and children, and in particular teenagers.

But there is this war over expertise. This is really, really important. It’s important for Christians to see. So for example, when it comes to those organizations, so thus you have Justice Sotomayor citing the expertise and authority of groups such as the American Academy of Pediatrics, the American Medical Association, the American Psychiatric Association, the American Psychological Association, the American Academy of Child Adolescent Psychiatry, who Justice Sotomayor say, “all agree that hormones and puberty blockers are appropriate and medically necessary to treat gender dysphoria when clinically indicated.”

In contrast, Justice Thomas, a conservative justice, writes, “In politically contentious debates over matters shrouded in scientific uncertainty, courts should not assume that self-described experts are correct.” He went on to say, “Deference to legislatures, not experts, is particularly critical Here.” Many prominent medical professionals have declared a consensus around the efficacy of treating children’s gender dysphoria with puberty blockers, cross-sex hormones and surgical interventions, despite mounting evidence to the contrary.

He continues, “They have dismissed grave problems undercutting the assumption that young children can consent to irreversible treatments that may deprive them of their ability to eventually produce children of their own.” Justice Thomas continues, “They have built their medical determinations on concededly weak evidence, and they have surreptitiously compromised their medical recommendations to achieve political ends.” He then makes this incredibly important statement: “The court today reserves to the people, their elected representatives and the democratic process, the power to decide how best to address an area of medical uncertainty and extraordinary importance.” Justice Thomas then inserts a statement emphatically meant to make his point: “Experts and elites have been wrong before, and they may prove to be wrong again.”

So the bottom line in all of this is that sanity prevailed as the state law there in Tennessee was upheld. Specifically it was found not to be unconstitutional, forgive the double negative, but that’s actually the finding of the court. The court found that Tennessee’s law was not unconstitutional. That doesn’t mean that they sanction everything in the law or in the surrounding legislation. No, they’re just isolating the case that was presented to them, the question that was accepted by the court.

My argument is that this was a demonstration of sanity. At the same time, it is a warning to us, given the fact that even the majority opinion just assumed so much of the transgender construct. It’s a reminder that it is still very much a problem, even at the Supreme Court of the United States. When it comes to the LGBTQ plus revolution, the Supreme Court is certainly not a bastion of sanity. We need to be thankful whenever sanity breaks out. But it was the Supreme Court of the United States that gave us the decisions, for example, striking down all laws against same-sex marriage in all 50 states.

And furthermore, going on to extend many of those same rights to transgender citizens, or those who identify or claim to be transgender. That fundamental problem still applies. But, you know, we should be thankful whenever the slightest amount of sanity shines through.

Part III

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A Shift Toward Preferring Girls? The Economist Finds the Question Interesting, But Not Morally Important

All right, while we’re thinking about biological sex, it’s important to recognize that even when you have a case like this come down, all the headlines about it, and the news media have responded as predictably as you could imagine, those on the left are immediately saying, “This is another demonstration of the conservative court’s threat to constitutional liberties. Here is another setback for the LGBTQ plus revolution.” And they’re lamenting that, and they are attacking the court for this decision.

On the other hand, you have the conservative side looking and saying, “Well, this was an escape from insanity, but it’s not everything we had hoped for.” But at least let’s remember that if you just step out a moment from this kind of case, this kind of question, you know, people still think in terms of biological sex. And even if they don’t want to, they still do. And by the way, otherwise you’re not going to get babies. But not only that, the vast majority of human beings have no basic question about their own gender identity. It is their biological sex.

And, you know, when it comes to covering even some of the most massive stories related to sex and gender in the mainstream media, that’s just assumed. So even as you have the transgender revolutionaries claiming you can’t assume any of this, you have The Economist, one of the most influential news sources in the entire English-speaking world, that comes back with a cover story about the decline of boy preference when it comes to births worldwide. And you know what? It’s counting boys and girls. And it pretty much knows who’s a boy and who’s a girl, otherwise they don’t have a cover story.

Okay, so The Economist story is, on its own terms, very interesting to us, and it has to do with the historic pattern of boy preference. That is the preference towards having boy babies rather than girl babies. Now, a part of that is simply baked into the human story, because of just the fact that if you are a nation, you need boys to become men to fight in the army. You need, if you’re a farmer, a son, to take over the farm after you.

And so a lot of this has been tied to some of the agrarian and military ambitions of nations, and the necessity of just having enough men around to do what the men have to do in society. But Christians understand that when you are looking at male and female, there is an absolute commonality, both made in the image of God. Made by God’s intention, made for God’s glory, and thus, any kind of discrimination against the birth of girls, is simply, from a biblical worldview, wrong, categorically wrong.

But when you have situations such as China’s now infamous one-child-only policy, you had parents who were so preferring to have boys, that there was a discrimination against girls, and that came down to abortion. It came down to the use of modern diagnostic technologies to define the sex of the baby in utero. And you also had infanticide, you had abortion and all these things that were undertaken. One moral horror just led to subsequent moral horrors. But now you have, at least The Economist claims, something of a reversal, and that is a stunning decline of boy preference across cultures.

Now, when you look further in the article, you find out that it hasn’t absolutely disappeared, but there is a marked change in some cultures towards, if not an equal preference for boys and girls, then even in some situations a preference for girls. In an editorial that comes along with the major research in the cover story, The Economist declares, “the global decline of this scourge,” that’s the scourge of gendercide, as it was called, “is a blessing. First,” they write, “it implies an ebbing of the traditions that underpinned it, the stark belief that men matter more and the expectation in some cultures that a daughter will grow up to serve her husband’s family, so parents need a son to look after them in old age. Such sexist ideas,” said The Economist, “have not vanished, but evidence that they are fading, is welcome.”

They go on to say It’s also good news just in terms of demographics because of the fact that there have been so many men, for example, born in China, who are never going to be able to find a bride and get married. That is obviously a big problem. It is referred to by The Economist as among the, quote, “harms caused by surplus men.”

Now, why this be the case? In other words, why would parental preference shift in any way here away from historic boy preference, which by the way goes all the way back to the ancient Greeks and the ancient Romans, for example? Why would there be a change? Well, the suggestion is that as people are growing older, as old age becomes more common, having daughters who may be able to help care for aging parents, is an advantage over having sons.

If you want an army, if you want an industrial might, if you want male workers on the farm, you need boys and primogeniture, meaning even the transfer of wealth, the transfer of name and all the rest. But if you’re looking for someone to take care of you in your old age, it turns out having a son may be disadvantageous to having a daughter. But then there’s the suggestion that comes in the research article and also in the editorial, saying maybe a part of this is because of the contemporary boy problem caused by massive social changes in the society in which, very clearly many boys have not found their place.

But as interesting as all this is, I haven’t even gotten to the main point, I think, that comes out of this article. So let me read to you this part of the statement from the editorial board of The Economist, published in London. “More important, more parents who conceived children the old-fashioned way are likely to use cheap blood-based screening in the first weeks of pregnancy to find out about genetic traits. These tests can already reveal the sex of the embryo. Some people trying for a girl may use pill-based abortive fashions,” that’s abortion pills, “to avoid having a boy”.

Next sentence is this, I’m going to read this very carefully. “As a liberal newspaper, The Economist would prefer not to tell people what kind of family they should have. Nonetheless,” say the editors, “it’s worth pondering what the consequences might be if a new imbalance were to arise, a future generation with substantially more women than men.” The important thing I want us to see here is the attempt to be absolutely value-neutral, the attempt to embrace a form of moral relativism. The editorial board is saying, “You know, we’re not telling you how to run your sex life. We’re not telling you what kind of family to have.” To use their words: “As a liberal newspaper,” and the key word there is liberal. They mean personal autonomy, personal liberty. “As a liberal newspaper, The Economist would prefer not to tell people what kind of family they should have.” That’s also a euphemism, “what kind of family they should have,” we’re talking here about sex selection, abortion, and worse. And all it comes down to is a decision and a liberal context about what kind of family you want to have.

The cover story is interesting, but the moral point made by the editors is absolutely horrifying. They’re saying, “You know, there’s not a major moral issue here. We’re not going to recognize a moral issue. We’re a liberal newspaper. There’s no moral argument here. But you know what? You can do the math and it just might not add up to use abortion pills in order to tilt the gender scale one way or the other.”

They’re trying to say, there’s no morality here, but there is some math. That’s a horrifying statement to Christians. We’re not denying the math, but we have to insist upon the morality. Another way of underlining, for Christians, the fact that when you look at an issue like this, you need to pay attention not only to what is said, but what is unsaid. Not only to the arguments made, but to the arguments missing.

I guess one final point for our consideration today comes down to the fact that we don’t get our morality from the major media. We don’t get our morality from The Economist. We also don’t get our morality from the Supreme Court of the United States. The supreme source of our understanding of biology, of morality, of good and of evil, and of everything else, is the Holy Scripture. It is the Word of God. We should be thankful when the Supreme Court avoids disaster, but we can’t look to the Supreme Court of the United States for rescue.