By David Fowler, Esq.

Fundamental Worldview Point:

In sum, the elephant in the room — human meaning — was either ignored by the justices and the litigants or gender theory was implicitly caught up in an unarticulated yet new understanding of human meaning under the 14th Amendment’s use of the word “person.”

Predicted Outcome:

I believe six justices will agree that a judgment should be rendered in favor of the constitutionality of the law, but I don’t think there will be a five-justice majority opinion agreeing on the reason for the judgment.

I expect Roberts, Kavanaugh, and Barrett will concur in one opinion effectively saying this is a case about regulating the practice of medicine in a state, and given that this practice involves “disputed” and “evolving” science, it is a matter best left up to state “regulation.” Thomas and Alito may join in parts of it.

I think Thomas may write an opinion saying there is no remedy that the Court can give to the alleged injury — the denial of access to treatments — because the Court has no power to “mandate” that a state allow blanket access to certain medical treatments. This rationale would allow the question of human meaning and whether “transgendered” is a new legal category of constitutional persons to be reserved for another day.

Practical Effect of Outcome:

I think the lack of uniformity in rationale for the judgment means we will see states having the “right” to democratically (legislatively) decide what it means to be human. Remember: What constitutes “healthcare” in a state is based on what it means to be human, even if the meaning is assumed and not stated. In fact, Tennessee conceded that other states may choose to allow the treatments.

So, we’ll be in the same position on this issue as we now are regarding abortion after the Dobbs decision. Expect an ongoing push to get states to permit the sterilization of minors.

Finally, expect the parental rights issue to be brought to the Court in those states that prohibit the treatment. Not sure what the Court will do with the parental rights case against Tennessee currently pending for a grant or denial of Cert. The Court may hold it and remand to the lower court for further review based on the conglomeration of opinions issued in the present case.

Worldview Implications of Tennessee’s Legal Argument:

In my view, and for reasons set forth below, Tennessee’s position effectively denies to law any uniformity of human meaning arising from the overarching and controlling cosmology given us in Genesis in the creation of Adam and Eve — namely, that gender and sex are objective, coterminous, and immutable with a telos directed toward procreation.

Think of saying former slaves cannot be “citizens” under the U.S. Constitution and each state can decide what rights they have, and you’ll get the picture. That was the Dred Scott decision in 1857.

Tennessee’s argument sure seems to me to conform to the denial of any transcendent authority to law espoused by SCOTUS in Erie Railroad v. Thompkins in 1938 that I cover in my book, The Naked Court.

Analysis of Oral Argument:

No one touched the question of what, in law, is a “person” under the 14th Amendment despite the fact its Equal Protection Clause applies to a “person.”

It seemed to me that Tennessee’s argument accepted the premise of the law’s pro-transgender opponents — namely, that gender and sex are distinct and not coterminous. It did so by acknowledging that a purpose for which the drugs in question can be used is to change one’s gender. Tennessee is effectively saying it just can’t be done by minors.

That led to Justice Sotomayor asking if the state’s position would allow a state “to deprive grown adults of the choice of which sex to adopt.” (Interestingly, she said “sex,” not “gender.”) Tennessee’s answer was: “Democracy is the best check on a potentially misguided law.”

To me, this answer suggests there is no truth about the relationship between sex and gender or their mutability, and it is a matter left up to majority vote in the states. In my view, this position effectively denies to law any uniformity of human meaning arising from the overarching and controlling cosmology given us in Genesis in the creation of Adam and Eve — namely, that gender and sex are objective, coterminous, and immutable with a telos directed toward procreation.

The impending “Dobbs effect” among states on this issue of child mutilation (formerly known as mayhem or maiming in common law) results, again, from a refusal to put to the Court the legal meaning of the word “person” in the 14th Amendment. What the state should have said about adults, had it made a common-law-based argument about the meaning of the word “person,” is, “Yes, the logic would mean that, but nothing in the Constitution compels a state to enact laws that prohibit the treatments in relation to adults or allow civil damages to be recovered if there is later ‘regret.’”

Interestingly, and given the foregoing ethical/moral/worldview observation, Justice Kavanaugh noted that Tennessee was defending the law based on “public health and safety, not morals.” Surely the justice is not ignorant of the fact that what constitutes health depends on a moral judgment about what a person is — what it means to be human.

David Fowler is a constitutional lawyer and former Tennessee state senator.