On Tuesday the Supreme Court heard oral arguments for two cases, West Virginia v. B.P.J. & Little v. Hecox, regarding the legality of state laws that prohibit male athletes from competing in women’s sports. Observers noted that the court seems likely to side with the states and to uphold their laws that prohibit male athletes from competing in women’s sports. Interestingly, lawyers for the plaintiffs narrowly argued that in some situations, banning male athletes from women’s sports constitutes sex discrimination under the equal protection clause and Title IX of the Civil Rights Act. Significantly, they did not argue that all male athletes have a right to play women’s sports, but rather that a subset of male athletes should have constitutional exemptions from being categorized as male. “A key problem for the challengers is that they were reduced to contending that a policy that is nondiscriminatory toward 99 percent of the people it applies to can nonetheless violate intermediate scrutiny on an as-applied basis toward a small subset of transgender athletes. But intermediate scrutiny has never required that a policy be perfectly tailored to avoid gender unfairness toward anyone” National Review’s Dan McLaughlin explains. Lawyers for the ACLU also struggled to advance definitions for men and women, a problem when invoking Title IX and sex discrimination precedent which turns on how sex is defined.
Writing for the Wall Street Journal, Colin Wright explains why the mainstream media’s framing of the Supreme Court’s oral arguments in West Virginia v. B.P.J. & Little v. Hecox is misleading and obscurant. Wright takes outlets like the New York Times and Reuters to task for presenting the state laws under consideration as “transgender athlete bans” or “transgender sports bans.” As Wright explains, these laws prohibit male athletes from competing in women’s sports, but do not prevent trans-identified athletes from competing as their sex. “Preventing males from competing in female sports isn’t the same as ‘banning transgender athletes from sports.’ Transgender athletes aren’t excluded from athletics; they are simply limited to competing with others of their own sex—like everyone else.”
On Tuesday, the Missouri Supreme Court upheld SB 49, which prohibits minors from accessing medical transition procedures for the treatment of gender dysphoria and imposes Medicaid restrictions for dysphoria interventions. “Today’s unanimous ruling marks a landmark victory for Missouri families. By upholding the SAFE Act, the Missouri Supreme Court confirmed the legislature’s authority to safeguard the health and well-being of our state’s most vulnerable citizens” said Missouri AG Catherine Hanaway. Notably, the U.S. Supreme Court ruled earlier last year that Tennessee’s law prohibiting access to pediatric medical transition for the treatment of gender dysphoria does not discriminate based on sex or transgender status but rather draws distinctions based on age and clinical rationale, undermining many of the legal arguments that advance the claim that state laws regulating gender medicine are fundamentally discriminatory.
On Wednesday, the Department of Education announced new investigations into eighteen entities for alleged Title IX violations based on complaints filed with the Office for Civil Rights. “The complaints assert that these entities, which range from K-12 school districts to postsecondary education institutions to state departments of education, maintain policies or practices that discriminate on the basis of sex by permitting students to participate in sports based on their ‘gender identity,’ not biological sex” the DOE’s press release explains. The probes target several educational entities in New York, California, Connecticut, Hawaii, Maine, Massachusetts, Nevada, Pennsylvania, Vermont, and Washington.
Citing federal policy changes, two of the largest pediatric hospitals in Wisconsin have stopped rendering medical transition procedures to minors. The moves by Children’s Wisconsin and UW Health are presumably in response to the Trump administration’s proposed rules which would prevent Medicare and Medicaid from funding sex-rejecting procedures, and condition participation in federal programs on not rendering these procedures. Both hospitals have said that they will continue to treat trans-identified youth with “compassion” and mental health services.
The Arizona Court of Appeals ruled unanimously in favor of reviving a lawsuit challenging a Mesa Unified School District policy that withholds information about a student’s “gender identity” from parents. Parents filed a lawsuit after they found out that their daughter was going by a male name at school, and that the new name was not updated in electronic records to intentionally avoid parental notification. The policy came in response to 2015 guidance which suggested that parents could not be notified about their child’s “gender identity” or pronouns without their child's consent. “I am very pleased that the Court made the correct ruling to defend parental rights and remind schools they should follow the law or risk legal action” said Arizona State Superintendent of Public Instruction Tom Horn.
The Society for Evidence-Based Gender Medicine (SEGM) translated a Norwegian article by the Executive Director of the Harry Benjamin Resource Centre that expounds on the challenges of reconciling “informed consent” principles with patient safety and treatment efficacy. The author, Mikael Scott Bjerkeli, elaborates on how ethical medical practice in gender medicine is not based solely on “informed consent” but must also ensure that treatment recommendations are in the best interest of minor patients. “Health care professionals have an independent responsibility to ensure that treatment decisions are clinically sound. This requires consideration of mental health, identity development, social influences, and comorbidities before offering medical interventions with irreversible or long-term consequences. This responsibility applies regardless of how motivated the patient may be,” Bjerkeli argues. He goes on to highlight issues with the affirmative care model and the need for mandatory psychological assessment and national clinical guidelines informed by systematic reviews.
Last week, U.S. Department of Health and Human Services General Counsel, Mike Stewart, announced investigations into three California hospitals: Children’s Hospital of Orange County, UCSF Hyde Hospital, and Benioff Children's Hospitals. Stewart takes the hospitals to task for continuing to render sex-rejecting procedures for minors, procedures which HHS recently declared to be incompatible with medical standards.
Joseph Figliolia
Policy Analyst
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