Tennessee Wants SCOTUS to Enforce Gender Conformity

This piece first appeared in our weekly newsletter, The Fallout.

One sentence uttered by Tennessee Solicitor General Matt Rice during last week’s oral arguments in United States v. Skrmetti, the case challenging Tennessee’s ban on gender-affirming care for minors, summed up the entirety of what the conservative legal movement hopes to accomplish with these bans.

In one exchange, Justice Elena Kagan pressed Rice to at least admit the Tennessee law is a sex-based ban because it only prohibits trans minors from accessing certain medical procedures. She tells Rice, “The whole thing is imbued with sex. I mean, it’s based on sex. You might have reasons for thinking that it’s an appropriate regulation, and those reasons should be tested and respect given to them, but it’s a dodge to say that this is not based on sex, it’s based on medical purpose, when the medical purpose is utterly and entirely about sex.”

“Justice Kagan … we think that’s a request for a substantive right to engage in non-conforming behavior,” Rice responded.

With that response, Rice admitted to what advocates have been warning about in this case all along: These bans are about empowering the state to enforce traditional, racial, and patriarchal gender norms.

At issue in Skrmetti is whether trans kids, with the help and support of their parents and trusted medical professionals, can access medical treatments like puberty blockers. To have the Solicitor General of Tennessee describe receiving medically appropriate treatment as a threat to state power is, frankly, astonishing. To be very clear, that is exactly what Rice does when he identifies accessing prescribed medical care as behavior that doesn’t conform to the state’s expectations of gender norms. He’s arguing that the care itself is a threat to state power.

Let me put it even more clearly: The Tennessee Solicitor General declared the state of Tennessee should be able to use its police power to enforce gender norms—and that includes denying some folks access to life-saving medical treatments. By Tennessee’s logic, that would also include enforcing bans on “cross-dressing” or strict enforcement of gendered dress codes. It could also include endorsing policies that allow businesses to contribute less to a female employee’s retirement and rolling back workplace protections against pregnancy discrimination or being out in the workplace.

What I’m saying is, if the Supreme Court allows Tennessee (and the other states just waiting in the wings) to enforce gender norms in the name of protecting against non-conforming behavior, pretty much every feminist and LGBTQ+ policy gain from the last 50 years will be up for grabs.

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