By Carlos Esteban*
(Opinion) They’re going after the children, chapter XCXXI.
To date, civilized humanity has understood that children cannot decide because they lack the intellectual maturity to take responsibility for their decisions.
It has always been a universally shared legal principle and is still in full force for many things: minors are not subject to criminal laws after committing a crime and cannot go to prison.
They cannot vote. They cannot buy alcohol or tobacco. They can’t marry or enter into contracts on their own.
They cannot drive. They cannot undergo surgery without parental permission.
What they can do, however, even with their parents’ opposition, is to undergo hormone treatments that stop their development to resemble the opposite sex and perhaps also to undergo operations falsely called sex reassignment, both with irreversible consequences.
At least, that is what the US Administration advocates.
Faced with the rapid advance of these unscientific and nonsensical theories, some conservative states are reacting, not only by reiterating the rights of parents but also by banning procedures that are considered unsafe and that condition the rest of a minor’s life.
But Joe Biden’s administration has developed an unhinged theory that the 14th Amendment to the Constitution protects a child’s right to take puberty blockers.
Bans on hormone treatments for children with gender dysphoria, such as prescribing testosterone to a 12-year-old transgender child, violate the equal protection clause of the 14th Amendment.
This criminal position has been advanced by the government in LW v. Skrmetti, a lawsuit filed in federal court in Nashville, Tennessee, by the families of three transgender children: a fifteen-year-old transgender daughter (who decided she was transgender at age 12), a fifteen-year-old transgender daughter, and a twelve-year-old transgender son.
The families oppose a law passed by the Tennessee Congress that “establishes bans on certain medical procedures related to gender identity in minors.”
They claim that the Tennessee law violates the equal protection clause of the 14th Amendment by affecting only transgender people and violates the right to parental autonomy guaranteed by the 14th Amendment’s due process clause.
The three children in question are “currently receiving medical care” prohibited by recent Tennessee legislation.
The “treatment” (hormones and puberty blockers) these children are receiving and similar treatments increasingly common in the United States, including surgical castration and mastectomy, are considered “necessary” to remedy the effects of gender dysphoria by major American medical associations.
The law does not prohibit general hormone therapy but only concerns gender dysphoria.
And that is the objection of Biden’s DOJ: that treatment for gender dysphoria cannot be banned outright, even if a state’s lawmakers deem the treatment dangerous, ineffective, and ultimately harmful.
The Biden Administration argues that the law “threatens irreparable harm” to these children and any other “transgender” children in the state of Tennessee.
It says that a transgender person, whom it defines as “someone whose gender identity is inconsistent with his or her sex assigned at birth,” should be a protected class, that “transgender status deserves heightened scrutiny” because it is “immutable” like gender.
Therefore, laws that focus on treating gender dysphoria should receive intermediate scrutiny by the courts.
The Biden Administration’s position that identifying a person as transgender should elevate them to a protected class similar to gender has not been adopted by the Supreme Court or a majority of the federal appellate circuits.
If accepted, it would cause a significant change in the law and put at risk numerous state laws prohibiting child gender mutilation or the administration of puberty blockers to young people.
In other words, it is their way of circumventing the legislative process.
*Fifteen years at the leading economic information newspaper EXPANSIÓN, then part of the Recoletos Group, the last three years as head of Interactive Services on the newspaper’s website. Then at Intereconomía, where he founded the Catholic weekly ALBA, he wrote the opinion column in ÉPOCA, where he also covered the International section, for which he was responsible when LA GACETA was born (as a generalist newspaper). For the last few years, he has worked freelance, collaborating with different media.
With information from LGI