The Tennessee Trans Treatment Case Is About Age, Not Sex

Opinion|The Tennessee Trans Treatment Case Is About Age, Not Sex

I cannot begin to imagine the pain of feeling that your body does not match your gender. I cannot imagine the pain of parenting a child in such distress. Americans should feel immense sympathy for individuals in those circumstances, and we should feel an urgent necessity to treat children’s pain in the safest and most effective way possible.

We should not, however, require states to permit treatments of dubious effectiveness, especially when those treatments carry risks of serious side effects. But that’s exactly what the plaintiffs are requesting in United States v. Skrmetti, a case argued Wednesday at the Supreme Court that challenges Tennessee’s ban on “medical procedures” that permit “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.” This ban includes the use of puberty blockers and cross-sex hormones. It does not apply to adults.

A bit of legal background is necessary to understand the full constitutional ramifications of this case. American law recognizes several important differences between children and adults, and one of the chief differences is that minors are deemed incapable of granting informed consent to medical procedures. They’re too young to understand the risks and rewards, and too susceptible to adult influence to be independent thinkers.

Typically, this means that parents step in as proxies. Parents are the ones who consent to medical treatments for their children, and they’re the ones who sometimes make life-or-death decisions regarding the welfare of their children. But parental authority is not absolute, including when it comes to deciding which treatments are available.

Parents can’t dictate the approval or availability of any given drug. They can’t require hospitals to provide specific surgical services. And states still exercise oversight of child welfare. In Tennessee, for example, a child can’t get a tattoo even with parental permission (except to cover up an existing tattoo).

The decision to approve any given drug for public use is typically made by the political branches of the government. At the federal level, the Food and Drug Administration — an executive agency authorized by Congress — governs the process, and, as the Court of Appeals for the Sixth Circuit explained in its own ruling in this case, “the Constitution rarely has a say over the F.D.A.’s work.”