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DOJ Challenges Tennessee Law Protecting Minors from Gender Transition Procedures

April 28, 2023

The U.S. Department of Justice (DOJ) filed a complaint Wednesday, alleging that a new Tennessee law (SB 1) protecting children from gender transition procedures violates the equal protection clause of the 14th Amendment. The complaint alleges the Tennessee law “denies necessary medical care to children based solely on who they are” — thus imputing to SB 1 an objective more inhumane than any law from America’s century of racial segregation.

To establish this argument, the DOJ states as fact the dogmas of transgender ideology: “Gender identity refers to a person’s core sense of belonging to a particular gender, such as male or female. Every person has a gender identity.” And “Transgender people are people whose gender identity does not align with the sex they were assigned at birth.” The 19-page complaint mentions the notion that sex is “assigned” at birth seven times.

In essence, the DOJ’s complaint subtly argues in favor of an alternate reality from that set forth in SB 1, which defines “sex” as “a person’s immutable characteristics of the reproductive system that define the individual as male or female, as determined by anatomy and genetics existing at the time of birth.” A person’s sex (male or female) is “determined by anatomy and genetics,” not “assigned.”

The subtlety of the DOJ’s revisionist reality is at work in the following paragraph, taken from the complaint:

“SB 1 prohibits certain forms of medically necessary care for transgender minors with a diagnosis of gender dysphoria. Specifically, SB 1 bans certain medical procedures and treatments for minors, including puberty blockers and hormones, if performed for the purpose of enabling a minor to identify with or live with an identity inconsistent with the minor’s sex as assigned at birth, or treating discomfort or distress from discordance between the minor’s sex assigned at birth and their asserted identity.” (emphasis added)

Compare this to the relevant lines of SB 1:

“(a) A healthcare provider shall not perform or offer to perform on a minor, or administer or offer to administer to a minor, a medical procedure if the performance or administration of the procedure is for the purpose of:

(1) Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or

(2) Treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” (emphasis added)

The DOJ’s paraphrase is nearly word-for-word — so similar they should have used quotation marks — but with small but important differences — which are subtler due to the absence of quotation marks. First, they struck out the word “purported,” which means that something is stated to be true but isn’t necessarily. The DOJ believes that a person’s gender identity is absolutely true. Second, they add the phrase “assigned at birth” to modify “the minor’s sex,” indicating their belief that a minor’s biological sex is less than absolutely true.

Underlying the DOJ’s reversion of reality is the postmodern notion that truth comes from within. Thus, they argue that a person’s gender identity is their “core sense of belonging” — nothing more inward — while a person’s sex is “assigned” — by an external agent — and not determined by (inward) genetic code. This also leads them to transgender ideology’s absurd conclusion that subjective and changeable feelings are a more accurate guide to what is true than objective and unchangeable scientific facts, such as genetic code.

The Department of Justice also abandons the longstanding method for interpreting the law and replaces it with transgender ideology — an unjustified and telling decision from the department tasked with enforcing federal law. The DOJ would retroactively rewrite laws distinguishing the sexes, which were long understood to do just that, to etch over the reality of biological sex with the fiction of gender identity.

David Fowler, president of the Family Action Council of Tennessee, told The Washington Stand:

“The Department of Justice, under the guise of ‘equal protection,’ would have the court reconfigure the understanding of persons under the Constitution from being what they were at common law — male or female human beings — to a new understanding of humanity that divides human beings based on who is transgendered and who is not. This effectively means transgender ideology now defines what it means to be human and a person.”

For example, the DOJ complained, as proof of anti-transgender discrimination, that:

“SB 1 permits a doctor to prescribe testosterone for a non-transgender male minor suffering from delayed pubertal development or a condition such as hypogonadism, but the law prohibits the same doctor from prescribing the same testosterone to a transgender male [that is, a biological female] youth to affirm his gender identity.

In other words, the sex a minor was assigned at birth determines the legality and availability of medically necessary treatments.”

Do DOJ lawyers not have a second set of eyes to review their work? They here pretend to discover that certain medical treatments are permitted to treat maladies for which they are approved, but not to treat maladies for which they are not approved. This (not) breathtaking revelation they present as a smoking gun to prove that certain medical treatments — specifically ones dealing with the reproductive system and sex hormones — are legal and available for one sex but not the other — the horror! Perhaps next the DOJ will sue the Vermont School District replacing “male” and “female” with “person who produces sperm” and “person who produces eggs.”

Fortunately, real health care professionals have to study anatomy, and therefore they understand the biological differences between the sexes that make for different “medically necessary treatments.”

The DOJ tried to wrap its Swiss-cheese case in an equally porous legal argument. “Under the Equal Protection Clause, government classifications based on sex or on transgender status are subject to heightened scrutiny and are presumptively unconstitutional,” they wrote. Heightened scrutiny is an intermediate standard of review between “strict scrutiny” and “rational basis,” which the Supreme Court created to review claims of sex-based discrimination. However, the Supreme Court has not privileged transgender status with this heightened protection except in the case of Bostock v. Clayton County (2020), where the court redefined “sex” to include it, but only for the purposes of Title VII employment law.

The complaint continued to assert that “SB 1 cannot survive heightened scrutiny because they are not substantially related to achieving Tennessee’s asserted interests.” It also added, in case the court applied a different standard of review, “in the alternative, these sections of SB 1 could not survive any level of scrutiny because they are not rationally related to a legitimate government interest.” These claims should make the case open-and-shut, because SB 1 explicitly outlines five state interests in enacting those laws and how the state achieves those interests.

First, “This state has a legitimate, substantial, and compelling interest in protecting minors from physical and emotional harm.” The legislature found that gender transition procedures “can lead to the minor becoming irreversibly sterile, having increased risk of disease and illness, or suffering from adverse and sometimes fatal psychological consequences.”

Second, “This state has a legitimate, substantial, and compelling interest in protecting the ability of minors to develop into adults who can create children of their own.” The legislature found that “minors lack the maturity to fully understand and appreciate the life-altering consequences of such procedures and that many individuals have expressed regret for medical procedures that were performed on or administered to them for such purposes when they were minors.”

Third, “This state has a legitimate, substantial, and compelling interest in promoting the dignity of minors.” The legislature found that “healthcare providers in this state have posted pictures of naked minors online to advertise such surgeries.”

Fourth, “This state has a legitimate, substantial, and compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty.” The legislature found that “a minor’s discordance can be resolved by less invasive approaches [counseling, a wait-and-see approach] that are likely to result in better outcomes for the minor.”

Fifth, “This state has a legitimate, substantial, and compelling interest in protecting the integrity of the medical profession, including by prohibiting medical procedures that are harmful, unethical, immoral, experimental, or unsupported by high-quality or long-term studies, or that might encourage minors to become disdainful of their sex.” The legislature found that “healthcare providers in this state have sought to perform such surgeries on minors because the surgeries ‘make a lot of money’ and ‘are huge money makers,’ not necessarily because the surgeries are in a minor’s best interest.”

The DOJ must know that the legislature can provide evidence showing that SB 1 is substantially related to these five legitimate state interests. It must also know that courts grant legislatures broad discretion in pursuing legitimate state interests. It might be prepared to argue that the legislature merely listed these legitimate aims to conceal its more sinister purpose of discrimination, but it would require real evidence to prove such a motive in a court of law. Instead, the DOJ prefers to live in Fiction Land, believing that it can prevail by repeating the dogmas of transgender ideology instead of matters of fact and law.

Not only is the DOJ living in Fiction Land, but it apparently is so busy filing frivolous lawsuits against good state laws that it has failed to comply with paperwork requests filed under the Freedom of Information Act (FOIA) to release records related to the FBI investigating “radical traditionalist Catholics” as domestic terrorists.

The left-wing American Civil Liberties Union (ACLU) and pro-trans activist group Lamba Legal already filed suit against SB 1 on April 20, so the DOJ is merely seeking to intervene in that lawsuit. In April 2022, the DOJ intervened in another ACLU lawsuit against Alabama’s Vulnerable Child and Adolescent Protection (VCAP) Act, which also protects children from gender transition procedures. Alabama’s law has been halted while the lawsuit against it proceeds.

Joshua Arnold is a senior writer at The Washington Stand.