One of the best things about being an adult is that you’re finally able to make decisions for yourself about what you’d like to do with your life and your body. Unless, of course, you’re an adult living in West Virginia and have a BLÅHAJ somewhere in your room.
The Supreme Court’s decision in Skrmetti held that children could be denied puberty blockers and hormone therapy without violating the Equal Protection Clause. The rationale for the decision was heavy with the law’s majestic equality — cisgender children would still have those treatment options available even if trans children didn’t. The silver lining appeared to be that trans kids denied care could just wait until they were adults to get the treatment they needed. Unfortunately, Sotomayor’s prediction that the decision “do[es] irrevocable damage to the Equal Protection Clause and invite[s] legislatures to engage in discrimination by hiding blatant sex classifications in plain sight” was spot on. Reuters has coverage:
A U.S. appeals court on Tuesday upheld West Virginia’s ban on Medicaid coverage for gender-affirming surgeries, the latest victory for Republican-led states seeking to curb the procedures amid an ongoing national battle over transgender rights.
In a unanimous ruling, a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, overturned a judge’s decision that the 2004 statute violated anti-discrimination protections under two federal laws as well as the U.S. Constitution’s promise of equal protection under the law.
Following the same hate the sinner not the sin specific procedures rather than specific individuals rationale, the decision extends coverage denial to adults.
The strangest thing about the decision is that it, as Erin in the Morning points out, turns the state’s desire to “encourag[e] citizens to appreciate their sex” and “not become disdainful of it” into a proper and constitutional aim. Anyone who actually gives a damn about personal liberty knows to be on high alert whenever a state tries to get away with with compelled “enjoyment” or “appreciation.” The practical question becomes what to do with the citizens who refuse “encouragement.” Erin runs through some of the practicalities:
If it is not unconstitutional to “encourage citizens to appreciate their sex,” the implications extend to virtually every area of transgender life. Are gender marker bans on IDs legal because carrying correct documents could “discourage” transgender people from “appreciating their sex?” Are drag bans and bans on cross-gender clothing legal because the state has an interest in encouraging the appreciation of sex? Could a state compel transgender people into conversion therapy, reasoning that it is not discriminatory because it targets a medical diagnosis rather than transgender status—and that the goal is simply to “encourage them to appreciate their sex?”
The ruling stands as proof of concept that autonomy and self-determination rights can be stripped away from adults. Right now it is West Virginia. How long will it take for Florida or Texas to adopt the “sex appreciation” rationale? Or until the rationale gets applied to other protected groups? Rough time for liberty.
West Virginia Can Ban Medicaid Coverage For Gender-Affirming Surgery, US Court Rules [Reuters]
4th Circuit Rules That States Can Compel Trans Adults To “Appreciate Their Sex” Via Care Bans [Erin In The Morning]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s . He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boat builder who is learning to swim and is interested in rhetoric, Spinozists and humor. Getting back in to cycling wouldn’t hurt either. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.
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