FAIR is proud to have filed an amicus brief in the upcoming United States Supreme Court case, US v. Skrmetti.
This case focuses on whether a Tennessee law that bans “gender-affirming” medical care for minors violates the Equal Protection Clause of the Fourteenth Amendment.
In their petition to the Supreme Court, the Petitioners (transgender Tennessee children and their families, joined by the United States Department of Justice) have asked the Court to strike down the law. The Petitioners argue that transgender individuals constitute a “quasi-suspect class” and therefore a law that deprives them of particular medical care amounts to unconstitutional discrimination. The Petitioners also argue that Tennessee does not have a right to ban a particular medical treatment within the state.
The Respondents (the state of Tennessee, represented by its Attorney General, Jonathan Skrmetti) argue that the state’s ban on “gender-affirming” medical care does not constitute a violation of the Equal Protection clause and that the State of Tennessee is within its rights to ban medical care it finds harmful to its residents.
FAIR filed its brief in support of the Respondents on behalf of FAIR, Genspect, and clinical psychologist and psychoanalyst Joseph Burgo, PhD. Our brief was written and coordinated by FAIR Network Attorney and international human rights lawyer Mitra Forouha
The first argument set forth in our brief demonstrates why “subjective classifications such as ‘gender identity’ are not tenable within the framework of ‘the rule of law’ principles, and therefore should not receive heightened review of a quasi-suspect status.” Without judicial treatment of “gender identity” as a quasi-suspect classification on par with biological sex (as the Petitioners have requested of the Court), the ban on gender-affirming care will survive constitutional scrutiny because it does not constitute an Equal Protection violation.
The second argument set forth in the brief is that the current practice of “gender-affirming” medicine is discriminatory against gay and lesbian children and youth. “The sex stereotyping that is embedded in the oversimplified definition of Gender Dysphoria and permeates the practice of gender medicine presents a great risk of harm to gay and lesbian children who are typically gender non-conforming children and may suffer from internalized homophobia.” While safety measures had historically been in place to protect gays and lesbians from wrongful transition, “those safeguards have been removed without any empirical support, thereby exhibiting deliberate indifference toward the risk of harm to gays and lesbians.”
A central principle of FAIR’s vision is the belief that objective truth exists and is discoverable. FAIR also believes that sex is binary and cannot logically be conflated with “gender identity,” a concept based on a set of ideas and beliefs that are not grounded in evidence-based science or objective reality, but instead dependent on an individual’s inner feelings, which “are elusive, mutable, and unverifiable.”
Our brief aims to assist the Court with the arguments presented in this case by emphasizing the importance of recognizing and distinguishing between objective biological sex and subjective gender identity in the law. It is an objective truth that males and females are biologically distinct in many important respects. In circumstances where such biological distinctions are consequential to the protection of individual rights, judicial scrutiny must be appropriately applied. Failure to maintain and recognize this distinction inherently erodes certain sex-based rights. For these reasons, FAIR opposes according quasi-suspect status to transgender status or gender identity because doing so “would create conceptual disorder and violate the principles of the rule of law in judicial interpretation.”
It is precisely because we believe that objective truth exists and is discoverable that we continuously engage in efforts to foster open and civil discourse and to highlight the fundamental need for open inquiry and viewpoint diversity, especially in the practice of scientific and medical research.
The duty to protect children cannot be emphasized strongly enough, nor can it be upheld unless physicians, researchers, and all health care practitioners are free to explore, debate, and challenge ideas and work together in the discovery of objective truth.
It is among FAIR’s top priorities to advance the highest ethical standards in medical practice. We believe that the practice of “gender-affirming” medical treatments has been hastily encouraged in children based on inadequate and incomplete research that has not been subjected to rigorous, scientific scrutiny. Accordingly, we support the Respondents’ decision to ban such treatments as a matter of public policy.
More than 50 amicus briefs have been filed in this case, and the Court is set to hear oral arguments on December 4, 2024. You can read FAIR’s brief in full, below.
FAIR is a nonpartisan organization dedicated to advancing civil rights and liberties for all, and promoting a common culture based on fairness, understanding, and humanity.
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