Sam Alito Provides Breath Of Fresh Air In Transgender Care Case. Vile, Bigoted Fresh Air, But Fresh Air Nonetheless

This morning, the Supreme Court issued its ruling in United States v. Skrmetti, upholding a Tennessee law banning medical care for transgender kids. While a law stepping between parents-doctors-and-kids on the basis of sex would seem a slam dunk violation of the Equal Protection Clause, Chief Justice Roberts wrote for an expected-but-still-depressing 6-3 majority that it was simply a “medical‑purpose” carve‑out. While gender-affirming care for kids is legal in Tennessee if it comports with sex assigned at birth — think breast implants for a teen girl whose life goal is Miss Teen Tennessee Swimsuit — the state can ban the treatment for gender dysphoria and it’s not a decision based on sex for… reasons.

Nor is it discrimination against transgender children, the majority reasons.

To be honest, I didn’t start with the majority, I hit control-F and leapt directly to Sam Alito. The result was expected, but the ranting of the Court’s direct pipeline to Newsmax-brain was obviously where the fun — in a manner of speaking — was bound to begin. And I was not disappointed!

Alito took time out of his luxury vacation schedule to declare in a loud concurrence that while he’s obviously pleased that the Court has decided to substitute its judgment for medical professionals — a passion of his — he’s unwilling to join the latter part of the decision because, in his estimation, the opinion is very clearly discriminating against transgender people… and he thinks that’s good!

Hey, sometimes you’ve got to appreciate the honesty. The disgusting, bigoted honesty. It’s like the “emperor wears no clothes” but the emperor is ripping the clothes off everyone around him too.

Both male-assigned and female-assigned patients are blocked under the Tennessee law, the majority reasons, so it’s not sex discrimination. That the law applies explicitly to patients with a condition related to sex doesn’t matter because puberty blockers can be used for all sorts of non-sex things so the state is free to constitutionally ban its use for sex treatments because medical treatments enjoy the sort of special exception to the Fourteenth Amendment usually reserved for presidents. Republican presidents, anyway.

Different drugs can be used to treat the same thing (would you like Advil or Tylenol for your headache?), and the same drug can treat different things (take DayQuil to ease your cough, fever, sore throat, and/or minor aches and pains)

Yes. Just like Advil. If Advil required six months of psychiatric evaluation and got you run out of town by your school board. What in the skibidi is this Skrmetti opinion?

As for discrimination against transgender people, Roberts cites the Geduldig opinion — where the court ruled that it’s not sex discrimination for an insurer to deny coverage to conditions that only come up during pregnancy — to declare that “SB1 does not exclude any individual from medical treatments on the basis of transgender status but rather removes one set of diagnoses—gender dysphoria, gender identity disorder, and gender incongruence—from the range of treatable conditions.” The logic is that we allowed private insurers to make cost-based decisions about treatments exclusively applicable to one identity specific condition (which was probably also wrong, but put that aside), so therefore the state can make decisions about treatments exclusively applicable to another identity specific condition? Not sure that tracks, bud.

The majority also brushes away the holding in Bostock — that it’s discriminatory on the basis of sex if actions are tolerated for one sex and rejected if the person is the other sex — yadda yadda-ing that employment discrimination law just grants a higher flavor of “equality” than the Equal Protection Clause. How could it do that without itself violating the Equal Protection Clause in a reverse way? DON’T ASK QUESTIONS!

But Alito doesn’t have time for these mental gymnastics. Justice Thomas writes separately to suggest who’s to say that J.K. Rowling doesn’t know more about these medical conditions than doctors, continuing the conservative legal movement theme that Yale’s Federalist Society club produces better virologists and gynecologists than any medical school. Justice Barrett chimes in with an academic spin on why discrimination can be legal sorta, it’s Alito who cuts through it all:

The Court holds that the law does not classify on this ground, and the Court therefore applies rational basis review. Ante, at 16–18. I am uneasy with that analysis and would reject the plaintiffs’ argument for a different reason: because neither transgender status nor gender identity should be treated as a suspect or “quasi-suspect” class.

The Chief wrote a lengthy opinion begging the public not to pay attention to the man behind the curtain. Alito just let his freak flag fly (upside down).

Discrimination on the basis of transgender status is fine, Alito explains, because the same man who swears all rights are contingent on being “deeply rooted in the Nation’s history and tradition” doesn’t think discrimination against transgender people rises to the same level afforded other minority groups.

Transgender status is not “immutable,” and as a result, persons can and do move into and out of the class. Members of the class differ widely among themselves, and it is often difficult for others to determine whether a person is a member of the class. And transgender individuals have not been subjected to a history of discrimination that is comparable to past discrimination against the groups we have classified as suspect or “quasi-suspect.”

He’s actually using the fact that transgender individuals can get gender-affirming care as an argument why they cannot be protected under the Equal Protection Clause, which is objectively galling. Like, he clearly never had his gall bladder removed because this took a titanic reservoir of gall most of humanity is simply incapable of producing. This argument rests on the assumption that someone isn’t transgender when they haven’t actively gotten care, which isn’t true but it’s also a conclusion he bases on… nothing.

This conclusory reasoning on one page is all the more impressive given his argument on another:

Although transgender persons have undoubtedly experienced discrimination, the plaintiffs and their many amici have not been able to show a history of widespread and conspicuous discrimination that is similar to that experienced by racial minorities or women. Instead, they provide little more than conclusory statements.

This is, itself, a conclusory statement. Alito’s recognition of racial discrimination is limited to string citing Plessy and Brown without signaling in which era he thinks transgender people enjoyed America as a land of warm acceptance. Actually, it’s probably for the best that he doesn’t elaborate because he’d just say something like “Bugs Bunny wore a dress to trick Elmer Fudd in the 1940s so QED America had no problem.”

But he DOES take a timeout to hint that he thinks laws against religiously justified bigotry that he strikes down on First Amendment grounds probably deserve the Fourteenth Amendment protection he denies transgender people because… the nation’s deeply rooted history and tradition of anti-Christian bias? I guess?

The Court has also suggested that religion is a suspect class. See Carolene Products, 304 U. S., at 152, n. 4. That determination follows from the First Amendment, which prohibits any impairment of the “free exercise” of “religion.” But because this right is expressly protected by that provision, questions of religious discrimination have generally been decided on First Amendment grounds.

Of note, he throws this into his strict scrutiny section and not his intermediate scrutiny reasoning in case he threw anyone with this masterclass of non-subtlety.

After decades refining the practice of disingenuous semantic games designed to get their results without saying the quiet part out loud, Alito seems over the pretense. And in the process, he’s willing to tear down the edifice of bullshit his fellow travelers erected. If only the public cared enough about the courts to notice.

(Full opinion on the next page…)

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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