In 2023, the Oklahoma Legislature passed SB 613 and Gov. Kevin Stitt signed it into law. The bill prohibited the use of puberty blockers and cross-sex hormones on minors as well as sex-change surgeries for minors. 

Soon after the law was passed, the ACLU sued to enjoin the law in federal court. OCPA, along with Do No Harm, filed an amicus brief in the United States District Court for the Northern District of Oklahoma. After the district judge denied the ACLU’s motion for a preliminary injunction, the ACLU appealed to the Tenth Circuit Court of Appeals, where OCPA and Do No Harm, again, filed an amicus brief with the Court. 

The OCPA/Do No Harm brief focused on why the so-called “experts” should not set the standard for whether the prohibition on these services for minors violates the Constitution. The Tenth Circuit decided to let the United States Supreme Court decide a similar case, United States v. Skrmetti, which was decided earlier this week in a 6-3 decision where the Court held that a similar ban in Tennessee did not violate the Equal Protection Clause of the Fourteenth Amendment. 

I want to highlight one of the concurring opinions, which goes directly to the argument OCPA raised along with Do No Harm in the case arising out of Oklahoma.

Justice Thomas’s Concurrence

Justice Clarence Thomas concurred with the majority but wrote separately to discuss, among other things, the issue of judicial deference to experts. He points out a number of reasons why this kind of deference is inappropriate, and I’d like to take them each in turn. If you’re interested, I commend his entire opinion, which you can find here. 

First, Justice Thomas argues, “so-called experts have no license to countermand the ‘wisdom, fairness, or logic of legislative choices.’” His opinion makes it clear that medical consensus, even if it existed, wouldn’t shine any light on the meaning of the Constitution. The kind of debate that goes on in a legislature will surely consider scientific expertise, if appropriate, and give it the weight the people’s representatives believe it should have. Experts don’t hold a special veto for laws that otherwise pass constitutional muster. He ends this section with a reminder that when the Court did give undue weight to expert opinion, the results are mixed–highlighting the Court’s embrace of the eugenics movement in upholding Virginia’s forced-sterilization law. 

Second, Thomas recognizes “there is no medical consensus on how best to treat gender dysphoria in children.” Thomas devoted a lot to this section, explaining in ghastly detail what sex-change surgeries entail and the horrific side effects that come with using puberty blockers and cross-sex hormones off-label. Despite efforts to suggest a medical consensus around the subject, Thomas points out that such a consensus doesn't exist–a fact that’s apparent to anyone paying attention. In the absence of such a consensus, courts should not question the judgment of legislatures. 

Next, Thomas notes, “notwithstanding the alleged experts’ view that young children can provide informed consent to irreversible sex-transition treatments, whether such consent is possible is a question of medical ethics that States must decide for themselves.” I believe this is the most important concern Justice Thomas raises. At its root, the concern here is about experts staying in their lane. We saw this with COVID. An epidemiologist might be able to tell you all kinds of facts about how a given virus spreads, but they are simply not trained in how to make determinations about the tradeoffs between economic, physical health, and mental health concerns. Nor are they legal scholars who can speak to the legality of various proposals.

In this case, Justice Thomas criticized the view that children are able to consent to the off-label use of these drugs and procedures. It’s certainly within the purview of an endocrinologist to list the potential side effects from a given treatment (though they acknowledge that some of them are unknown). What they are not qualified to determine is whether a child can, legally or otherwise, consent to those treatments. This is amplified by the large number of detransitioners who frequently testify they had no idea what they were signing up for when they were transitioned. 

Finally, Thomas calls into question the expertise of those who “have relied on questionable evidence, and have allowed ideology to influence their medical guidance.” Here is where many of Justice Thomas’s arguments align with the arguments made in the OCPA/Do No Harm brief. 

For instance, in our brief we mentioned that the American Academy of Child & Adolescent Psychiatry (AACAP) believes “children and adolescents can provide informed consent to these treatments,” but it takes a contrary position regarding lifetime prison sentences for minors. 

The OCPA/Do No Harm brief notes that the AACAP has also taken positions on critical race theory, gun control, immigration, climate change, and affirmative action. Justice Thomas highlighted that the World Professional Association for Transgender Health changed its guidance on age limits for these treatments, not because of a change in the science, but because the Biden administration pressured it to do so. States, judges, and parents should rightfully be critical of health organizations that can be pressured into changing their guidance due to political pressure.

The Skrmetti decision was a win for sanity. While there may be some gray area when determining what is the appropriate level of government interference in the raising of a child, I think most people are comfortable drawing a line at cutting off healthy tissue or giving a child drugs that can sterilize them for life. I’m also thankful for Justice Barrett’s concurring opinion, which addressed the issue of whether transgender status is a protected class (and found it is not). 

But for those of us who came out of the COVID lockdowns skeptical of the expert class, it’s Justice Thomas’s opinion that really shines.