Justice Barrett Crucially Explains Why ‘Transgenderism’ is Not a Special Class
On June 18, the U.S. Supreme Court issued a critical ruling deciding states have constitutional authority to protect minors from harmful “transgender” medical interventions.
In the 6-3 decision, the Court ruled the 14th Amendment’s Equal Protection Clause does not bar states from limiting minors’ access to puberty blocking drugs, opposite-sex hormones and surgeries to make them appear more like the opposite sex.
Chief Justice John Roberts authored the majority opinion upholding the constitutionality of Tennessee’s SB 1, joined by Justices Thomas, Gorsuch, Kavanaugh and Barrett. Justice Alito joined the majority opinion in part.
The Daily Citizen previously highlighted Justice Thomas’ concurring opinion, in which he went after “major medical organizations” like the World Professional Association for Transgender Health (WPATH) and the American Medical Association (AMA) – which have long supported transgender medical interventions – for building “medical determinations on concededly weak evidence” and “surreptitiously compromis[ing] their medical recommendations to achieve political ends.”
Just as important is a separate concurring opinion authored by Justice Barrett, joined by Justice Thomas, examining whether “transgender status constitutes a suspect class.”
A “suspect class” refers to a group of individuals who have historically been subject to discrimination, and which the Supreme Court has granted extra protection under our nation’s Equal Protection Clause jurisprudence.
Because Chief Justice Roberts and the Court majority decided that SB 1 does not “classify on the basis of transgender status,” the Court did not resolve the question of whether “transgender status constitutes a suspect class.”
“I write separately to explain why, in my view, it does not,” Justice Barrett wrote.
Over the course of 11 pages, the 53-year-old justice incisively explained why.
Under Supreme Court precedent, most laws are subject to “rational basis” review, a low bar which presumes a law is constitutionally valid “so long as it bears a rational relation to some legitimate end.”
However, when a law classifies based on a few “suspect classes” – including race, sex and ethnicity – a higher level of review (called strict or heightened scrutiny) is triggered.
This heightened standard presumes a law is unconstitutional unless the government can show it is “‘narrowly tailored’ to further a ‘compelling government interest,’ and that [it was] the ‘least restrictive means’ to further that interest.”
For four decades, the Supreme Court has repeatedly declined to recognize any new constitutionally protected classes. The plaintiffs in Skrmetti had urged the Court to recognize “transgender status” as a suspect class. The Court declined.
In 2023, the Daily Citizen reported on the U.S. Court of Appeals for the Sixth Circuit’s excellent decision upholding SB 1, in which the court also declined to see “transgender status” as a special suspect class. Justice Barrett largely adopted the court’s reasoning in her concurring opinion.
“The Sixth Circuit held that transgender individuals do not constitute a suspect class, and it was right to do so,” Justice Barrett opined, reasoning:
- “Transgender status is not marked by the same sort of ‘“obvious, immutable or distinguishing characteristics”’ as race or sex.”
- The “transgender population [is not] a ‘discrete group,’ as our cases required. Instead, like classes we have declined to recognize as suspect, the category of transgender individuals is ‘large, diverse, and amorphous.’”
- “Finally, holding that transgender people constitute a suspect class would require courts to oversee all manner of policy choices normally committed to legislative discretion.”
Justice Barrett pointed out that the question of whether “transgender status” warrants a suspect classification has massive implications for other hotly contested policy areas.
“Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy – ranging from access to restrooms to eligibility for boys’ and girls’ sports teams,” the justice observed, adding,
In other words, if the Supreme Court decides in a future case that “transgender status” is not a “suspect class,” laws mandating bathrooms and sports teams be segregated based on sex – rather than “gender identity” – will be upheld in federal courts if the legislatures have a “rational basis” for them.
If, however, the Supreme Court eventually holds that “transgender status” is a “suspect class,” that would require our nation’s courts to apply a far higher level of review (heightened scrutiny) when reviewing such laws, likely dooming many of them.
Clear as mud? You got to love lawyers.
Here’s the main point: If the Supreme Court eventually adopts Justice Barrett’s opinion that “transgender status” does not afford individuals special legal protections, it will make it far easier for states to protect women’s bathrooms, locker rooms and sports from males wishing to invade them by adopting a female “gender identity.” Such laws would easily pass constitutional muster.
Justice Barrett’s concurring opinion is not legally binding on lower courts, nor does it indicate how many other justices agree with her, although, in a separate concurring opinion, Justice Alito explained why he thinks “transgender status …. does not warrant heightened scrutiny.”
Nevertheless, her analysis lays crucially important groundwork for the Supreme Court to uphold women’s right to access bathrooms, locker rooms and sports free from male intrusion in future cases.
That is a good thing indeed.
The case is U.S. v. Skrmetti.
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Related articles and resources:
Counseling Consultation & Referrals
God’s Amazing Grace in a Transgendered Person’s Life
Chloe Cole: Gender Reassignment Surgery Regret
Addressing Gender Identity with Honesty and Compassion
Cheering Justice Thomas’ Important Defense of Children From ‘Trans’ Procedures
US Supreme Court Upholds Tennessee Law Protecting Kids From Transgender Mutilation
Photo from Getty Images.
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