Let’s pick up where we left off last week.

Sex and gender differ.

Organisms that reproduce sexually–as opposed to asexually–have two sexes: Male and female. Males are he; females are she.

Gender, by contrast, is a construct of language. Masculine nouns are he, feminine nouns are she, and neuter nouns are it.

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With that understanding, the issue before the U.S. Supreme Court in United States v. Skrmetti involves sex, not gender.

During the Biden administration, the United States and other plaintiffs appealed their loss in the Cincinnati-based federal-appellate court.

The petitioner’s brief–which the Justice Department filed during the Biden administration–says the issue is whether a Tennessee law prohibiting “all medical treatments intended to allow ‘a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex’ or to treat ‘purported discomfort or distress from a discordance between the minor’s sex and asserted identity,’ … violates the Equal Protection Clause of the Fourteenth Amendment.”

Fellow plaintiffs agree.

Tennessee Attorney General Jonathan Thomas Skrmetti and other Tennessee government officials–whom we’ll call “Tennessee” here–shorten this by saying the issue is whether the challenged Tennessee law “violates the Equal Protection Clause of the Fourteenth Amendment.”

The Supreme Court heard oral arguments before Inauguration Day 2025.

Under new leadership, the Justice Department has told the Supreme Court that the United States no longer asserts the Tennessee law is unconstitutional. Nevertheless, the United States wants the court to proceed.

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The issue before the court isn’t whether the treatments that the Tennessee law bans for minors should be legal. Instead, the issue is whether the Fourteenth Amendment’s Equal Protection Clause prohibits banning such treatments.

You, faithful reader of this column, understand the difference. You read about an analogous difference here during the Supreme Court’s 2022 consideration of Dobbs v. Jackson Women’s Health Organization.

Dobbs addressed a Mississippi restriction on what this column has come to call the “A” word. The issue wasn’t the extent to which the “A” word should be legal. Instead, the issue was whether the Constitution prohibits such a restriction.

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So what do the parties in Skrmetti assert? Let’s look at their primary assertions.

The United States–via the petitioner’s brief filed during the Biden administration–asserts the Tennessee law classifies based on sex: The law “prohibits all medical treatments intended to allow ‘a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex’ or to treat ‘purported discomfort or distress from a discordance between the minor’s sex and asserted identity’–while permitting the exact same treatments when prescribed for any other purpose. … Put simply, an adolescent (girl) cannot receive puberty blockers or testosterone to live as a male, but an adolescent (boy) can. (The law’s) purpose is to ‘encourag(e) minors to appreciate their sex’ and to ban treatments ‘that might encourage minors to become disdainful of their sex.’ … That is sex discrimination.”

Again, fellow plaintiffs agree: The law “imposes different() treatment based on … sex … . The law bans … medication … if–and only if–those treatments are provided (to) allow a minor to ‘identify with, or live as’ a sex ‘inconsistent with the minor’s sex’ … . Thus, a (girl) is prohibited from receiving the same testosterone medication that a (boy) might receive–even if both minors are prescribed the medication for the purpose of masculinizing (sic) their bodies. … That is a classic sex classification … .”

Tennessee disagrees: The “law draws no … ‘sex-based (l)ine'(. It) does not ‘prefer one sex over the other,’ ‘include one sex and exclude the other,’ ‘bestow benefits or burdens based on sex,’ or ‘apply one rule for males and another for females.’ … It does not ‘draw any distinctions between persons’ based on sex. …

“The law references ‘sex,’ but it does not ‘differentiate’ based on sex. And that is what matters. …

“So while (the law) uses ‘the word “sex,”‘ it does not include ‘a sex classification’ within the meaning of ‘equal-protection case( )law.'”

Moreover, Tennessee asserts, the United States “points to no disparate impact on one sex.” Even if the United States had proven this, it would also have to “prove that the legislature acted with ‘discriminatory intent or purpose.'”

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This illustrates why this challenge matters way beyond particular “medical treatment”: To prevail on the treatment issue in Skrmetti, the Biden administration employed the tactic of trying to enlarge the sex-discrimination definition under the Constitution. That’s called result-oriented reasoning: Selecting the desired result and then selecting reasoning that gets there.

That’s the big picture here.

To prevail on the “A” word issue in Dobbs, the Biden administration employed this tactic. It didn’t work in Dobbs.

A decision in Skrmetti is expected by June.

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Dr. Randy Elf suggests that the United States’, under new leadership, wanting the court to proceed may reveal a belief that Tennessee is headed for victory, which the United States no longer opposes.

COPYRIGHT © 2025 BY RANDY ELF