The Supreme Court’s upcoming decision on trans-ing children hangs on Neil Gorsuch
The U.S. Supreme Court is set to consider state bans on administering puberty blockers, cross-sex hormones, and the performing of trans surgeries on minors, and there are no guarantees such laws will withstand scrutiny.
Court watchers should disabuse themselves of the notion that because the current majority of justices on the bench are Republican-appointed, this will be smooth sailing. Far from it. Supreme Court decisions are notoriously unpredictable as there are often many mitigating factors and thorny legal issues in play, and in my view, whether or not a law prohibiting the hormonal and surgical trans-ing of children will be upheld hangs on the opinion of one justice in particular: Neil Gorsuch.
Earlier this week, the high court agreed to hear the matter of L.W. v. Skrmettiand at issue is whether or not the Constitution allows states – in this case Tennessee – to restrict experimental gender medical practices on minors. Meanwhile, an amorphous, fictitious ghost from a relatively recent Supreme Court ruling haunts this upcoming case.
Writing for the majority in the 6-3 ruling in the 2020 case Bostock v. Clayton County, Justice Gorsuch infamously enshrined “transgender status” in the context of Title VII, the section of the 1964 Civil Rights Act that pertains to employment discrimination. The Bostock ruling consolidated three cases, one of which centered around Aimee Stephens, a now-deceased man who claimed to be a woman who was fired after he refused to comply with the dress code at a Michigan funeral home where he once worked. Firing someone based on their “transgender status”, whatever that means, constitutes sex discrimination under Title VII, according to the majority opinion.
Even though the Court specifically held that the ruling applied narrowly in the employment context, that has not stopped the Biden administration from inappropriately citing Bostock to legitimize gender ideology in many areas of public policy. In his scorching dissent in that case, Justice Samuel Alito predicted that though “the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for too long,” adding that the “entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”
Needless to say, Alito has proven prescient given the abundance of miry disputes that are currently in motion on these issues today.
Justices Thomas and Kavanaugh were the other dissenters in Bostock and it is hard to imagine that their thinking has modulated. It is likewise hard to imagine Amy Coney Barrett, a devout Catholic mother of 7 children who joined the court months after Bostock was decided, voting to allow trans-ing minors.
While I’d love to be proven wrong here, given the political left’s full-fledged religious fervor in championing all things LGBT (especially the T), I fully expect liberal justices Sotomayor, Kagan, and Jackson to vote to strike down Tennessee’s ban. Chief Justice Roberts, who has repeatedly demonstrated that he has zero appetite for touchy social issues, will likely join the dissent. I’d love to be proven wrong on that too.
That leaves us with Gorsuch who would be the clincher fifth vote, presuming that Thomas, Alito, Kavanaugh, and Barrett hang together.
It seems unavoidable that his contention that “transgender status” constitutes a meaningful ontological category of personhood will have to be addressed. If it was germane to Title VII, it’s certainly relevant in the realm of pediatric medical care and whether or not states can set limits in the interest of child safeguarding, particularly when the treatments are experimental and invasive.
Does any person have a “gender identity” or alternative gender “status” knowable only to themselves? Do children? If kids do possess one and thus need risky medical interventions to alleviate the associated psychological distress that comes with it, can they then give informed consent to the foreclosure of their fertility by way of puberty blockers and cross-sex hormones? Much is at stake indeed here with Gorsuch’s “transgender status” locution.
Gorsuch is now in the unenviable position of having to explain just what he meant by “transgender status” despite there being no reputable scientific evidence, brain imaging scan, blood test, or genetic marker definitively proving its existence. Every definition that activists have ever insisted upon for what “trans” is either relies upon cultural stereotypes or is completely circular, trying to foist incoherent meaninglessness into concrete legal meaning. But at root, there’s no there there. Put simply, it’s a complete lie.
The Supreme Court taking up L.W. v. Skrmetti is an important step in the long-awaited reckoning over what many, myself included, believe is some of the most atrocious child abuse and one of the most monstrous medical scandals in history.
Should the justices uphold a state ban to prohibit so-called “gender-affirming care” for minors, it will reduce the number of children who are experimented on in this way. That is, quite obviously, objectively good.
But such a ruling will not address the fact that states like California have gone in the opposite direction and have become a "trans sanctuary”, enabling the machinery of the family courts and other government entities to carry out these practices on out-of-state minors who make it to the Golden State against the wishes of their parents. Prudence and sober-mindedness are necessary when we consider the depth of the damage this ideology has wrought and what it will take to pick up the pieces.
Here’s hoping that the upcoming decision in L.W. v. Skrmetti will be grounded in the science of biology, heralding a return to much-needed sanity and reality – that there are only two sexes, and no psychological “status” or fanciful notion of “gender” can ever alter that brute fact.
If Justice Gorsuch winds up writing the opinion in this matter, he would be wise to retract his Bostock word salad altogether.
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Brandon Showalter has a bachelor's degree from Bridgewater College in Virginia and a master's degree from The Catholic University of America in Washington, D.C. Listen to Showalter's Generation Indoctrination podcast at The Christian Post and edifi app Send news tips to: [email protected] Follow on Facebook: BrandonMarkShowalter Follow on Twitter: @BrandonMShow
