Laws must be rooted in reality. However, when it comes to the Left’s approach to law, emotion and fantasy rule the day in certain contexts. Oral arguments in United States v. Skrmetti at the nation’s highest court illustrated this perfectly.

The case involves a 2023 Tennessee law (Senate Bill 1, passed with bipartisan support) that prohibited healthcare providers from administering puberty blockers, cross-sex hormones, or performing surgeries on children for the purpose of transitioning away from their biological sex.

Such a law is common sense to all reasonable people. These dangerous and experimental drugs and surgeries can inflict much harm and lifelong, irreversible damage on children. Their use has been built on emotional, cultural, and political manipulations by LGBTQ+ advocates, not on science. A recent review of the medical evidence by Hilary Cass, MD, in England, found that the medical intervention for gender dysphoria is “built on shaky foundations.” Another study in the U.S. by Dr. Johanna Olson-Kennedy was suppressed because it showed that “puberty blockers do not improve kids’ mental health.”

The so-called mainstream media has largely ignored the devastating stories of child detransitioners, but they are real, and the state of Tennessee is moving very reasonably and strategically in this area, pushing against such radical procedures on minors.

As is usually the case on anything having to do with the promotion of transgender ideology, the radically leftist American Civil Liberties Union (ACLU) sued Tennessee to stop them from protecting children from these drugs. The Biden Administration shamefully intervened on their behalf, also, claiming the state law protecting children violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

To get an idea of the mentality driving their arguments, here is Chase Strangio, the transgender director of the ACLU’s LGBT & HIV Project, who argued the case before the Court, telling Jake Tapper of CNN that children know they’re trans as early as two years old.

Strangio continued her radical arguments before the Court, where Justice Samuel Alito pressed her on whether being transgender was immutable, one of the criteria the Court looks for to determine protected status in law. Strangio tried to dodge but ultimately had to answer that yes, that is their argument: “I — I think that the record shows that the — the discordance between a person’s birth sex and gender identity has a strong biological basis and would satisfy an immutability test.” Incoherently, Strangio also admitted there are those who are transgender but later change. So, I guess it is not so immutable in real life, whatever their personal feelings about it.

U.S. Solicitor General Elizabeth Prelogar did not fare much better when Justice Alito took exception with their misleading of the Court by presenting the science as settled on this issue. He asked:

“I wonder if you would like to stand by the statement that you made in your petition or if you think it would now be appropriate to modify that and withdraw the statement that there is overwhelming evidence establishing that these treatments have benefits that greatly outweigh the risks and the dangers?”

Justice Alito quoted the Swedish National Board of Health and Welfare saying, “the risks of puberty blockers and gender-affirming treatment are likely to outweigh the expected benefits of these treatments,” and then also referenced that the Cass report in the United Kingdom, “found [a] complete lack of high-quality evidence showing that the benefits of the treatments in question here outweigh the risks.” He chastised SG Prelogar for relegating the Cass Report to a footnote on her reply brief.

Time and again, the arguments from those on the ACLU’s pro-children transition dealt with straw men arguments while downplaying the practical implications of their theoretical pontifications. At one point, Justice Sonia Sotomayor, only outperformed in her passion by Justice Ketanji Brown Jackson, compared the issue to any other medical treatment, like taking an aspirin.

When Tennessee’s Solicitor General Matthew Rice was arguing that “the question of how many minors have to have their bodies irreparably harmed for unproven benefits is one that is best left for the legislature.” Justice Sotomayor erupted, “I’m sorry, counselor. Every medical treatment has a risk, even taking aspirin. There’s always going to be a percentage of the population under any medical treatment that’s going to suffer a harm.”

Most people can see that removing genitals or double mastectomies is fundamentally different than taking aspirins, but these are the sort of mental gymnastics that fly as legitimate when legal argumentation replaces reason and common sense.

The left’s argument hung entirely on making the case that Tennessee law discriminated based on sex, which is a protected class under the Courts Equal Protection analysis.

Justice Jackson used a hypothetical to try to argue that Tennessee discriminates based on sex, saying if a boy comes in and asks for hormone treatment to deepen his voice in order to affirm his masculinity because it hasn’t come and he’d like to deepen his voice, he would be able to get the treatment, but a girl who wanted to do the same could not.

But Tennessee AG Rice corrected her, clarifying that the boy would also not be able to get the treatment if there was no medical purpose for it. He explained that Tennessee law establishes a line, not on sex, but on the purpose of the treatment. “You cannot use testosterone for purely cosmetic reasons. It’s a Schedule III drug. You are not allowed.” He also explained,

“What is dictating under this law is the use for which you are putting the drug. And just to kind of build out on the notion that these are not the same treatments, we talked about earlier testosterone. If you give it to a biological boy, it allows the boy to develop a normal body and healthy body; whereas providing it to a girl causes a physical condition, hyperandrogenism. And that results in clitoromegaly, atrophy of the lining of the uterus, blood cell disorders, increased risk of heart attack. So the notion that the risks are the same when you give testosterone to a boy as when you give it to a girl are simply not borne out by medical reality.”

So yes, a heavy dose of reality is what is needed in this case for children to be protected. But affirming reality takes courage these days. To post publicly that no two-year-old can declare himself trans should be simple, but the truth is that it can get you banned in some circles. The Court, just like the general public, is feeling the pressure to deny that reality and follow the fantasies of a few in the name of tolerance. Let us pray for them as they consider this important case.