It’s Time for American Elites to Rediscover Human Nature: Lessons from United States v. Skrmetti

It’s time for American elites to rediscover human nature. Of course, particular aspects of human nature will inevitably be contested, but for too long, large swaths of American elites have acted as if human nature does not even exist. 

Some of the justices during the recent oral arguments in the case United States v. Skrmetti (audio available here) put that elite tendency on full display. For those sitting atop far too many culture-shaping institutions, our “plastic world and plastic selves” can be “shaped in any way we wish.” Having imbibed this ruinous set of assumptions, Justices Kagan, Sotomayor, and Jackson appear blind to the chasm between medical interventions that foster natural human development and those that frustrate that development. The consequent blind spots and errors are enormous, as their exchanges with respondents’ attorneys clearly demonstrate.

US v. Skrmetti considers whether SB1, Tennessee’s ban on “transgender medical treatments” for minors, runs afoul of the Equal Protection Clause of the Fourteenth Amendment. Enacted in March 2023, the Tennessee law seeks to protect children from the use of hormone therapy, puberty blockers, and surgery for the purposes of “gender transition.” Twenty-five other states have passed similar laws.

Discrimination on the Basis of Sex

Arguing against SB1, US Solicitor General Elizabeth B. Prelogar stated at the outset:

This case is about access to medications that have been safely prescribed for decades to treat many conditions, including gender dysphoria. But SB1 singles out and bans one particular use. In Tennessee, these medications can’t be prescribed to allow a minor to identify with or live as a gender inconsistent with the minor’s sex. 

Prelogar continues:

SB1 regulates by drawing sex-based lines and declares that those lines are designed to encourage minors to appreciate their sex. The law restricts medical care only when provided to induce physical effects inconsistent with birth sex. . . . That’s a facial sex classification, full stop, and a law like that can’t stand on bare rationality. 

In response to the Solicitor General’s opening statement, Justice Clarence Thomas asked an obvious question, “[I]s there no difference . . . if a girl takes testosterone or if a boy takes testosterone?” to which Prelogar replied: “[T]he district court specifically considered this question in detail and found that with respect to the risks that the State had identified, it was not substantiated that there would be unique risks associated with . . . a cross-sex use of the hormones.” Justice Thomas’s inquiry called for far more than an assessment of immediate risk. But on the premises of Prelogar’s argument, she had no choice but to interpret his question in this narrow way. After all, she needed to avoid even the suggestion that testosterone treatments are inherently different for boys than for girls. There can be no place for natural sex differences in medicine, law, or any other sector of American life in the plastic reality that she and her progressive allies have embraced.

I acknowledge that there are litigation strategies and precedential reasons for the parties arrayed against SB1 to assert that its provisions amount to unconstitutional sex discrimination. But that allegation is surely wrong. SB1 discriminates not on the basis of sex but against medical interventions “performed for the purpose of enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex or treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” 

Discrimination on the Basis of Medical Purpose

The law treats all minors in Tennessee equally, in accordance with their sex. J. Matthew Rice, Solicitor General of the State of Tennessee, made the point this way:

The law imposes an across-the-board rule that allows the use of drugs and surgeries for some medical purposes but not for others. Its application turns entirely on medical purpose, not a patient’s sex. That is not sex discrimination. . . .

The Equal Protection Clause does not require the states to blind themselves to medical reality or to treat unlike things the same . . . 

We might say that SB1 takes the sex binary as a given feature of human nature, and the dispute in this case ultimately flows from one side’s confusion about, and rejection of, that feature as real and binding.

The human nature divide I mean to highlight is especially pronounced in Rice’s exchange with Justice Sonia Sotomayor. At one point, Justice Sotomayor alleged that SB1 treats children differently based on their sex by contrasting the medical treatments the law would permit for a child experiencing the emergence of unwelcome secondary sex characteristics due to precocious puberty with those it would restrict if undertaken out of a desire for “gender transition.” 

Responding to Justice Sotomayor’s ill-conceived hypothetical, Rice said, “We do not think that giving puberty blockers to a six-year-old that has started precocious puberty is the same medical treatment as giving it to a minor who wants to . . . transition.” Justice Sotomayor replied, “What you’re saying is . . . you’re still depending on sex to identify who can get it and who can’t.” She continued, “[I]f a sex-neutral-looking child walks into a doctor and says, I don’t want to grow breasts, doesn’t the doctor have to know whether it’s a girl or a boy before they prescribe the drug?” Rice replied, “I don’t think that is an example of where a sex-based line is being drawn. . . . Because all that matters . . . is the medical purpose for which the drug is used.” 

To stay with her hypothetical, Justice Sotomayor refuses to acknowledge that growing breasts is natural to a girl’s development. By implication, denying “treatments” to a male patient seeking to grow breasts would not be sex discrimination, but rather, an appropriate act of discrimination against a “treatment” that denies his nature as a boy. Even the most generous interpretation of what Justice Sotomayor might have meant during this part of the exchange cannot compensate for her astonishingly muddled reasoning. Delaying a natural process because its effects began too early in a child is in no way analogous to postponing puberty for the purpose of enabling “gender transition” by suppressing the natural development of one or more secondary sex characteristics. But we have to recognize that human nature exists in order to draw a bright line between the two.

Subsequently, Justice Elena Kagan intervened to bring into sharper relief where Justice Sotomayor’s questioning was heading:

[T]he prohibited purpose here is treating gender dysphoria, which is to say that the prohibited purpose is something about whether or not one is identifying with one’s own sex or another sex. The whole thing is imbued with sex. I mean, it’s based on sex. You might have reasons for thinking that it’s an appropriate regulation, and those reasons should be tested and respect given to them, but it’s a dodge to say that this is not based on sex, it’s based on medical purpose, when the medical purpose is utterly and entirely about sex. 

Well, yes and no. Implicit in Rice’s “medical purpose” argument is that sex is an innate, immutable feature of the human person that must be taken into account for some medical treatments. Determining whether the “medical purpose” is licit or illicit in a given case sometimes hinges on the sex of the patient. Unfortunately, even in Rice’s exchanges with the more sympathetic justices, that point never became explicit. But it should have been. SB1 depends on a recognition that sex is real and that distinct processes of natural human development for boys and girls must be both discerned and respected.

Defining Sex without Reducing Human Nature to Reproductive Function

Perhaps it would be helpful to bring into focus the nature of sex and what it means for human persons to be inherently male or female. Here I will turn to a superb book by Notre Dame professor Abigail Favale titled, The Genesis of Gender: A Christian Theory. In her chapter on sex, Favale points to a crucial distinction between potentiality and actuality, a conceptual distinction she first encountered in the work of Saint Thomas Aquinas. “A woman,” Favale explains,

is the kind of human being whose body is organized around the potential to gestate new life. This potentiality that belongs to femaleness is always present, even if there is some kind of condition, such as age or disease, that prevents that potential from being actualized. 

Put more broadly, “Human bodies are teleologically organized according to our distinct role in reproducing the species.” Observing that inherent to being a woman is the potential to “gestate new life” is in no way reducing femaleness to mere reproductive function. It is simply an elegant way of describing what is plainly true of human nature. Accordingly, we can and must distinguish between physiological developments that are natural to being a boy or girl, and by virtue of that distinction, to draw a bright line between medical interventions that fulfill those natural developments and ones that frustrate them. Favale offers a straightforward interpretive key for thinking about what is natural to boys and girls that can withstand whatever cultural innovations and distortions around the concept of “gender” may come.  

Unfortunately, no one during oral arguments articulated the underlying logic of the Tennessee law. As a result, no one specified the main reason why SB1 is in no way an example of unconstitutional sex discrimination. Justice Samuel Alito’s exchange with attorney Chase B. Strangio regarding whether “transgender” identity is immutable came closest. But even here, Justice Alito pointed to individuals who initially reject and then later accept their sex as the ground on which to challenge its immutability. And Strangio kept returning to the idea that the “distinguishing characteristic” of “every transgender person” is that their “birth sex is inconsistent with their gender identity.” In this respect their arguments stayed on two separate planes that have no way of intersecting. Terms like “gender identity” simply remain undefined, and thus what it means for one’s “gender identity” to be inconsistent with one’s “birth sex” remains inscrutable. But whatever we make of the entire “transgender” paradigm, one thing is clear: it sheds no light on whether SB1 is a form of unlawful sex discrimination.

SB1 treats all minors equally, in accordance with their sex, and it discriminates against all medical interventions that reject a minor’s sex. To arrive at that conclusion, we must recognize what constitutes natural human development for boys and girls, and accept the underlying premise that human nature exists and demands respect. It is long past time for a critical mass of American elites to rediscover this fundamental aspect of reality.

Image by Pixel-Shot and licensed via Adobe Stock.