Tenn. Code Ann. § 68-33-103(a) Is Set For An Internal Conference At The Supremes, On March 15, 2024. A Mandate Has Issued From The Sixth Cir...

Here's a brief update, on where the Supremes are, on this Tennessee "law" that purports to tell doctors they are forbidden from treating juvenile gender dysphoria cases, inside the state [but only if the presenting patients' apparent genital morphology is not "aligned" with the patients' self-perception, of gender]. [Mandate issued in Sixth Circuit. This is harming children, every day that it remains even a threat of law. Parents are leaving the state to get care in Illinois and Colorado, and California, as I type this.]

So, the Court will now discuss it all, at a March 15 (private) conference, and we will likely see argument dates shortly after that.

I suppose it is possible, given the Supremes turning back the TJ HS (Va.) case yesterday, that the Court will summarily report out that Bostock has been decided, and as such, Tennessee § 68-33-103(a) is unconstitutional. But more likely, the Supremes will take the route of hearing argument. Certainly, they cannot duck this one. Here's a bit from the parents' brief:

. . .In defending Tennessee’s ban, Respondents do not dispute the profound importance of the constitutional questions presented or the profound consequences of SB1 for transgender youth and their families. Instead, Respondents advance -- without any support in the district court’s factual findings -- misconceptions about gender-affirming care that the district court rejected, and that were not questioned, much less deemed clearly erroneous, by the court of appeals. Those assertions have no proper place here.

On the merits, the Constitution is not “neutral,” as the Sixth Circuit put it, about laws that classify based on a person’s sex or transgender status. App. 18a. Such laws carry a presumption of unconstitutionality, and the government must provide an exceedingly persuasive justification for the differential treatment. The Sixth Circuit’s sweeping declaration that laws targeting transgender people and the medical decision-making of their families are subject only to rational basis review creates multiple circuit splits, contravenes well-settled precedent, and imposes immediate and devastating harm. This Court’s review is warranted now. . . .

Respondents. . . assert that heightened scrutiny does not apply because Tennessee’s ban “merely” references sex without classifying based on sex. But Tennessee’s ban is nothing like a law regulating abortion that happens to refer to the word “woman.” See Opp. 24. Such a law would have precisely the same meaning if the word “woman” were changed to “person.” By contrast, under SB1, the legality of medical treatment expressly turns on whether the care “[e]nabl[es] a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.” Tenn. Code Ann. (“TCA”) § 68-33-103(a)(1)(A). That Tennessee must treat boys and girls differently to regulate gender-affirming care is not a reason for discarding heightened scrutiny. It is why heightened scrutiny is required. . . .

Tennessee will lose here, just as Alabama will lose in about a year, in the Supremes, on the idea that a clump of 500 cells is a human being. These are. . . indeed, dark times, for the real biological sciences, especially in the largely Southern-, and GOP-controlled, state courts and legislatures.

Onward, just the same.

नमस्ते