Changing the Subject: Hidden Assumptions in Justice Sotomayor’s Defense of Gender Transition Medicine  

In United States v. Skrmetti, the Supreme Court upheld a Tennessee law that bans the use of puberty blockers and cross-sex hormones to help minors attempt to medically transition from one sex to the other or to reduce discomfort with one’s natal sex. In a dissenting opinion, Justice Sotomayor argues that Tennessee’s law discriminates on the basis of sex. Because Tennessee allows certain medications and treatments for boys that it does not allow for girls (and vice versa), Justice Sotomayor claims the law should receive “heightened scrutiny” and is a clear violation of the Equal Protection Clause of the Fourteenth Amendment.  

However, Justice Sotomayor’s critique depends on several faulty assumptions that she never acknowledges or defends. She presupposes a body-self dualism that sees puberty not as a healthy and expected phase of human development, but instead as a potentially adverse process that can threaten an individual’s health, well-being, and identity. This error leads Justice Sotomayor to see the practice of medicine (at least in this field) in essentially consumerist terms, suggesting that the key factor in determining whether minors should receive certain medical treatments is whether bodily changes are “unwanted,” not whether the treatments promote healthy development. Making sex-specific medical treatments available to only one sex does not violate the Equal Protection Clause. 

What’s Missing: Puberty as a Healthy Phase of Human Development 

Early in her dissenting opinion, Justice Sotomayor notes that “[d]octors in the United States prescribe hormones and puberty inhibitors to treat a range of medical conditions,” including helping “minors conform to the typical appearance associated with their sex identified at birth” (emphasis added). Throughout her dissent, Justice Sotomayor focuses on the fact that puberty blockers and cross-sex hormones can be used to alter the appearance of a girl or a boy, and argues that using such medical treatments for one sex but not the other constitutes sex discrimination: “Physicians in Tennessee can prescribe hormones and puberty blockers to help a male child, but not a female child, look more like a boy; and to help a female child, but not a male child, look more like a girl,” she writes.  

In this account, a male child and a female child who want to “look more like” a boy are similarly situated. They both want the same medications to achieve the same outcome. The upshot, for Justice Sotomayor, is that Tennessee discriminates on the basis of sex when it comes to the provision of these medications.  

But for this argument to work, you must hold all else constant when you (hypothetically) change the sex of the individual, and this Justice Sotomayor fails to do. What Justice Sotomayor neglects is the idea of puberty as a normal, healthy, and expected part of human development, a process that is necessarily different for males and females. To help a male undergo a typically male puberty is to assist the human body in performing a healthy and necessary step (or rather, series of steps) that are part of human growth and development; to prevent a male from undergoing male puberty or to seek to simulate female puberty in a male is to interfere with the proper growth and development of the human body. It is not sex discrimination to help only males experience male puberty because male puberty is a normal, healthy, and expected part of human development for males, but not for females. The same applies for females.  

Body-Self Dualism  

Justice Sotomayor’s problems stem from her covert adoption of several faulty assumptions, the most central of which is body-self dualism: the view that the “real” person is the individual’s conscious thoughts, feelings, and desires, while the body is merely a form that the person inhabits. Justice Sotomayor uses language that presupposes body-self dualism throughout her opinion (with certain important exceptions noted below). Seven times in her opinion, Justice Sotomayor uses the phrase “sex identified at birth,” suggesting that whatever sex is “identified” at birth may not be an indication of the person’s true sex (or gender; the language is not always consistent), which is a matter of self-identification. Justice Sotomayor notes that one of the plaintiffs in the case “felt as early as elementary school that he ‘was a boy,’” again presupposing that if a (female) child feels like a boy, then that person is a boy. The body may have one sex, but the true self may have another. This body-self dualism is never challenged, questioned, or defended throughout Justice Sotomayor’s opinion.  

Puberty takes on an ambiguous role when body-self dualism is assumed. If the body is not an essential part of the self but is instead a kind of vehicle or machine that the self inhabits, then it is possible for the body to undergo the “wrong” puberty, a puberty that is at odds with the self’s “true” gender identity. According to this logic, it may be appropriate and necessary for doctors to intervene to “fix” the body’s misaligned puberty. To put the matter frankly, if body-self dualism is assumed, it is possible to see puberty as a pathology, a disease or disorder that requires technocratic expertise to remedy. 

Alternatively, one could hold that our bodies are a key part of our identity—that, in a real sense, we are our bodies—and that sex is a matter of biological fact rather than self-identification. In this view, even if puberty is uncomfortable or disconcerting for an individual (as it often is), puberty is not a threat to the self because it is the (bodily) self’s unfolding or development into the kind of thing that it is. Puberty is simply a name for a certain stage in the healthy development of a human person.  

Doctors for Hire 

Justice Sotomayor’s body-self dualism leads her to an essentially consumerist view of medicine, at least when it comes to gender-related care. Five times in her opinion, Justice Sotomayor refers to “unwanted” body changes and argues that if members of one sex can access medical care for unwanted changes, then members of the other sex should also be able to access medical care to address the same unwanted changes.  

For example, Justice Sotomayor writes: “Consider the parents who tell a Tennessee pediatrician that their teenage child has been experiencing an unwanted (but medically benign) buildup of breast gland tissue. Again, the pediatrician’s next move depends on the patient’s sex.” It’s worth pausing for a moment to note how strange this characterization is. If someone were to call a human embryo’s development of hands and feet “medically benign,” we would get the sense that their apprehension of human development had gone very wrong. Typical and expected development at any stage is not “medically benign,” it is appropriate and healthy. But for Justice Sotomayor, what matters is not whether certain bodily changes are part of normal puberty; it is whether they are wanted. If they are unwanted, then the child has a right to medical care that would avoid those changes, at least if that medical care is available to members of the other sex.  

This puts doctors in an essentially customer-satisfaction role. In Justice Sotomayor’s account, if a girl does not want her breasts, then the doctor’s job is to help her get rid of them, at least if the doctor would be willing to do the same thing for a boy. Again, what is missing here is any conception of puberty as a phase of typical human development. What is developmentally appropriate for girls is not the same thing that is developmentally appropriate for boys. The role of medicine is to help the body achieve health and wellness, which means respecting the internal structure and functioning of the body.  

There are moments when Justice Sotomayor comes close to recognizing this. For example, she writes:  

No one disputes that “[s]ome medical treatments and procedures are uniquely bound up in sex” or that there are “biological differences between men and women.” . . . A law that allowed only women to receive certain breast cancer treatments, for example, might well be consistent with the Constitution’s equal protection mandate if the State establishes that the relevant treatments are suited to women’s (and not men’s) bodies. (Internal citations omitted.)  

Justice Sotomayor treats certain points as obvious and uncontroversial, e.g., that there are real “‘biological differences between men and women’” that can inform how health care is made available, that much of her opinion seeks to undermine. She does not seem to notice the tension here, much less defend how her body-self dualism can be combined with an integrated view of body and self. What she wants to hold on to is the idea that the Equal Protection Clause requires courts to look very carefully at (in legal terms, apply “heightened scrutiny” to) any laws that distinguish between the sexes in medicine (or anywhere else). 

But as Chief Justice John Roberts notes in the majority opinion, requiring heightened scrutiny “would be especially inappropriate in the medical context.” Whereas differentiating on the basis of sex in many contexts—employment, public accommodations, housing, and others—is unusual and suspicious, differentiating on the basis of sex in medicine is necessary and appropriate. There are many health conditions that affect men and women differently. In many cases it would be irresponsible and dangerous to ignore these differences (indeed, for decades medical research did focus disproportionally on men, with adverse effects for women). Doctors, medical researchers, and government officials should not have to operate under a cloud of increased scrutiny whenever they recommend sex-specific care. Chief Justice Roberts succinctly captures the point: “In the medical context, the mere use of sex-based language does not sweep a statute within the reach of heightened scrutiny.”  

Justice Sotomayor’s analysis depends on many assumptions that she does not articulate or defend. This lack of clarity leads to unnecessary confusion and inconsistency. In more ways than one, Justice Sotomayor is changing the subject.  

Image by Gage Skidmore and licensed via Wikimedia Commons. Image resized.