We answered a knock at our door the other day to find our friend Angela on our doorstep all in a panic. It seems her doctor announced that Angela’s ten-year-old Jimmy is suffering from species dysphoria and wants Angela to authorize surgery to attach a tail. We counseled, “No way, Jose,” but poor Angela is at sixes and sevens because her doctor also opines suicide is on the horizon, and she must choose between a dead son and a live dog.

That story, of course, is a barely exaggerated metaphor for what’s happening to America’s children under the name of so-called “transgenderism.” Tennessee stepped up to address the problem, and the Biden administration sued, a matter now before the Supreme Court. To understand what the judges are considering, you need to understand the law in Tennessee.

Alarmed to discover transgender butchers operating under cover of an M.D. license who threaten to transform the greenest state in the land of the free into the Forest of Dr. Moreau, Tennessee legislators enacted a statute aimed at protecting minors from medical treatments (drugs and/or surgery) intended to enable a so-called “gender transition.”

Image by AI.

The legislature enacted the statute on March 2, 2023. On July 1, 2013, “Prohibited Medical Procedures for Minors” (TN Code § 68-33) became the law in Tennessee.

As you will read, Section 68-33-101 makes legislative findings that transgenderism butchery of minors has become a menace in Tennessee and must be stopped, Section 68-33-102 recites clarifying definitions, and Section 68-33-103 bluntly prohibits performing on minors any type of medical procedure that purports to change their sex.

Section 68-33-103(a) specifically states:

(a) A healthcare provider shall not perform or offer to perform on a minor, or administer or offer to administer to a minor, a medical procedure if the performance or administration of the procedure is for the purpose of: (1) Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or (2) Treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.

With that language, the law seeks to shut down Dr. Moreau’s little shop of horrors in Tennessee.

However, it is unfortunate that when it came to enacting a penalty for transgender butchery, the Tennessee Legislature lost its nerve. The penalty for violating § 68-33-103 is specified in § 68-33-106 as: “A violation of § 68-33-103 constitutes a potential threat to public health, safety, and welfare and requires emergency action by an alleged violator’s appropriate regulatory authority.”

Thus, transgender butchery of a child is not a crime in Tennessee; it is merely grounds for license revocation.

Nevertheless, even with its purely administrative penalty, the Tennessee statute offended the Biden Department of Justice, which promptly rounded up some obliging Tennessee plaintiffs and brought suit against Tennessee Attorney General Jonathan Skrmetti in federal court seeking an injunction against the statute for alleged constitutional violations. That’s the case that the Supreme Court heard last week.

In its briefs and during oral argument, the DOJ asserted that the Tennessee statute violates the 14th Amendment’s “equal protection clause” by treating males and females differently. That clause states, “nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.” The DOJ’s position is that the Tennessee statute’s application varies according to whether the patient is male or female.

But is that so? Does the application of the statute so vary?

Look at the text of § 68-33-103(a), quoted above. The statute bans certain acts a healthcare provider can do to a minor, regardless of whether that minor is male or female. Instead, the statute banns conduct based on purpose, not the minor’s sex. This means the statute’s effect is not dependent upon whether the minor in question is male or female.

It is well known and beyond the possibility of dispute that every human being is one of two sexes, male or female, and that their sexes are expressed not only in the germ cells of the human organism but also in every somatic cell. That being the case, it is impossible to “transition” from one sex to the other. A healthcare provider who has misled a minor patient or his parents or guardian to believe otherwise may have rendered himself liable for civil or criminal fraud, rather than mere loss of a license.