As multiple federal courts have issued various rulings on the legality of child sex bans, legal experts told the Daily Caller News Foundation that the Supreme Court is likely to take up the issue.
In Tennessee, Alabama, and Kentucky, federal courts have upheld child sex change bans, while bans in other states, such as Arkansas, have been struck down. The arguments against the bans are often derived from the Due Process and Equal Protection clauses of the 14th Amendment, but those arguments aren’t likely to survive on the Supreme Court level, where challenges to the bans are likely headed, legal experts told the DCNF.
“The next stop is the Supreme Court,” Sarah Perry, a senior legal fellow for the Heritage Foundation, told the DCNF.
The circuit splits at the Appeals level of the court system all but guarantee that a child sex change lawsuit will find its way to the Supreme Court, Perry explained.
Over in the Eighth Circuit Court of Appeals, a temporary injunction against Arkansas’ child sex change ban was upheld in November 2022, but was struck down by a district court judge in August 2023. The plaintiffs argued that the ban violated the Due Process and Equal Protection clauses of the 14th Amendment, as well as the First Amendment.
If one of the lawsuits makes its way to the Supreme Court, it will face a few legal hurdles.
The Supreme Court is unlikely to rule in favor of the claim that preventing children from getting sex change surgery is unconstitutional, Thomas Jipping, a senior legal fellow at the Heritage Foundation, told the DCNF.
“They will be properly cautious about creating an individual right under the 14th Amendment that isn’t there,” Jipping told the DCNF.
The new standard set by the recent decision in Dobbs v. Jackson Women’s Health Organization also presents a potential issue for anyone who would argue a child sex change ban violates the 14th Amendment’s Due Process Clause, Jipping told the DCNF.
“Dobbs has changed the playing field by insisting on the text, history and tradition test in the case of Due Process,” Roger Brooks, senior counsel for Alliance Defending Freedom and co-counsel for the Alabama sex-change case, told the DCNF.
Rights derived through the Due Process Clause of the 14th Amendment must be “‘deeply rooted in this Nation’s history and tradition,’” the Supreme Court wrote in the Dobbs decision in June 2022.
“It’s not rooted in our text, history, or tradition,” Perry said, speaking about child sex change surgeries and gender ideology.
There must be some sort of legal precedent and history of ordinances or laws that were created to ensure the protection of a right that is not explicitly mentioned in the Constitution, Jipping told the DCNF.
“This court is skeptical about creating rights that aren’t in the constitution,” Jipping said.
At the heart of the argument that preventing children from getting sex change surgeries, which often involves genital removal, as opposed to children with defects that require getting their genitals removed, is the fact of whether or not they are “similarly situated,” Jipping explained.
“The medical care that the second person needs in your hypothetical is known, and it’s not novel, new, or unapproved by the FDA,” Jipping told the DCNF.
“There is no history of parents being able to obtain unsafe medical care that has been banned by legislatures,” Brooks told the DCNF.
Another issue with the 14th Amendment arguments is that transgender persons are not a “suspect class,” or a group of people likely to experience discrimination, Perry told the DCNF.
“A number of Supreme Court precedents in recent years have emphasized that the Supreme Court is not interested in creating new suspect classes,” Brooks told the DCNF.
Individuals that identify as transgender and claim to be due equal protection of the law because of that are implying they have protections guaranteed to them as if they are as suspect class, Perry explained. Those typically possess an immutable trait, and the group has been subjected to discrimination due to that immutable trait.
“The Supreme Court has determined sex to be a quasi-suspect class that requires heightened scrutiny,” Perry told the DCNF.
“It would be incredibly antithetical to their equal protections jurisprudence to determine transgenderism as a quasi-suspect class,” Perry continued.
More than twenty states have banned child sex change procedures. Montana, Idaho, Utah, Arizona, North Dakota, South Dakota, Nebraska, Oklahoma, Texas, Iowa, Missouri, Arkansas, Louisiana, Indiana, Kentucky, West Virginia, Tennessee, North Carolina, Mississippi, Alabama, Georgia and Florida have all done so, though not of these laws are in effect, as they make their way through the courts.
“This court isn’t likely to play fast and loose with the constitution,” Jipping told the DCNF.
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