On March 31, now known as “Transgender Day of Visibility,” divisions of the Biden Department of Health and Human Services went all-in on transing the kids. Several publications pushed “gender-affirming care,” which included access to puberty blockers and hormones for all children with gender dysphoria, even citing the fiction that all of the changes encouraged by these drugs are reversible. The memos even recommended genital mutilation surgeries for minors on a case-by-case basis. At least they admitted those are irreversible. Now, the Biden Department of Justice (DOJ) has declared itself the enforcement arm of these proclamations.
In a memo issued on the same day, Assistant Attorney General Kristen Clarke told state attorneys general:
The U.S. Department of Justice (the Department) is committed to ensuring that transgender youth, like all youth, are treated fairly and with dignity in accordance with federal law. This includes ensuring that such youth are not subjected to unlawful discrimination based on their gender identity, including when seeking gender-affirming care.
So, how will the DOJ intervene to ensure there is no barrier to transing the kids? By invoking federal anti-discrimination laws. Of course, the federal civil rights legislation passed in the late 1960s never contemplated sexual preference or gender identity. Instead, Executive Order 13,988, signed by President Biden on his first day in office, led to a memo from the DOJ applying the Bostock v. Clayton County decision from the Supreme Court to Title IX of the Education Amendments of 1972. It is not clear that the DOJ can extend legislation passed by Congress like this through regulation, but that won’t stop them from trying.
It is absurd that the DOJ believes a majority decision by SCOTUS related to sex discrimination in employment extends to the current debate on providing gender transition care to minors. In the majority opinion, Justice Neil Gorsuch noted how narrow the decision was, writing, “They say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today but none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.”
Related: Depraved Democrats Double Down on a Losing Issue by Endorsing Transing Kids
Despite the assertion in the majority opinion, Clarke intends to go after any state contemplating a law or policy prohibiting life-altering medication and surgery for minors using the Equal Protection and Due Process Clauses of the Fourteenth Amendment:
State laws and policies that prevent parents or guardians from following the advice of a healthcare professional regarding what may be medically necessary or otherwise appropriate care for transgender minors may infringe on rights protected by both the Equal Protection and the Due Process Clauses of the Fourteenth Amendment. The Equal Protection Clause requires heightened scrutiny of laws that discriminate on the basis of sex and prohibits such discrimination absent an “exceedingly persuasive” justification. Because a government cannot discriminate against a person for being transgender “without discriminating against that individual based on sex,” state laws or policies that discriminate against transgender people must be “substantially related to a sufficiently important governmental interest.
Perhaps it is in the state government’s interest not to create millions of infertile adults who then require services to detransition, as many supposedly transgender youths are doing. It is also possible that these states are looking at the actions of other nations as they wrestle with the issue. As author Abigail Shrier noted, the Biden DOJ is embracing a radical position on transing minors while European countries, including France, the U.K., Sweden, and Finland, are backing away from medical interventions for transgender children.
According to Shrier, other nations based these decisions on a decade of evidence that failed to establish gender-affirming medical treatments’ emotional or physical benefits. Yet, in her warning to the states, Clarke still writes:
In addition, the Due Process Clause protects the right of parents “to seek and follow medical advice” to safeguard the health of their children. A state or local government must meet the heavy burden of justifying interference with that right since it is well established within the medical community that gender-affirming care for transgender youth is not only appropriate but often necessary for their physical and mental health.
Neither the appropriateness nor necessity of these treatments are well established, as recent decisions in Europe demonstrate.
It is interesting to see Clarke pinning the DOJ’s argument on the rights of parents to direct the medical care of their children when Democrat-led states and municipalities are passing laws that allow children to receive COVID-19 vaccinations without their parents’ knowledge or consent. In some blue states, they can also receive birth control, mental health medication, medical transition services, and abortions without their parents’ knowledge. A few even contemplate removing a child when the parents do not agree to medical transition services. Perhaps the DOJ should make up its mind rather than supporting parents only when it is ideologically convenient.
Related: Rachel Levine Says ‘Misgendering’ Trans People Is ‘Mean-Spirited’—It’s Not
Clarke also cites Section 1557 of the Affordable Care Act, the Omnibus Crime Control and Safe Streets Act of 1968, and Section 504 of the Rehabilitation Act of 1973 as potential legal barriers to making gender transition surgeries and medication illegal for minor children. The only one of these that may have contemplated transgender transition is the Affordable Care Act. The ACA is only clear that discrimination in the provision of care is not allowed. The rest of Clarke’s citations would be the DOJ applying the law to a situation it did not contemplate using the language of the Bostock decision.
On the thinnest of legal theories, Clarke threatens states seeking to protect children from undergoing irreversible medical treatments with legal action. She is proving to be every bit as radical and outside the mainstream as Republicans asserted she was in her confirmation hearings. The memo also solidifies the Biden administration’s willingness to enforce policies on behalf of the most radical minorities in their base. And no amount of bad news for Democrats ahead of the midterms seems to encourage them to change course.
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