21 Yale Philosophers File Amicus Brief on Case about Medical Care for Transgender Minors
“Amici are professors of philosophy who are trained to identify flaws in arguments. Philosophers assess arguments in a variety of ways, but most relevant here is by examining the logical structure of arguments. This requires identifying the premises underlying arguments as well as the ways that arguments can attempt to hide those premises.”
So begins the amici curiae brief submitted yesterday on behalf of twenty-one philosophy faculty at Yale University in the Supreme Court case of United States v. Skrmetti.
The case concerns
whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment.
Tennessee’s defense of the law involves the claim that it does not classify minors by sex, and so is not subject to heightened scrutiny (that is, it need not shoulder the burden of proving to the court that its law involves a classification that is substantially related to serving an important state interest).
In their brief, the philosophers argue that this is false, and the Tennessee law does “classify by sex.” They write:
Tennessee tries to argue that its statute is not sex-based, but its arguments contain a fallacy. More specifically, Tennessee’s arguments contain the question-begging fallacy—that is, the arguments assume the truth of the conclusions within their premises. In addition, by prohibiting treatment “inconsistent” with a minor’s sex, Tennessee enforces sex-specific stereotypes, which again demonstrates that its law does classify by sex.
The philosophers who signed the brief are: David Charles, Timothy Clarke, Stephen Darwall, Robin Dembroff, Keith DeRose, Claudia Dumitru, Paul Franks, Robert Gooding-Williams, Verity Harte, Lily Hu, Brad Inwood, Shelly Kagan, Joshua Knobe, Jacob McNulty, L.A. Paul, Thomas Pogge, Jason Stanley, Zoltán Szabó, Timothy Williamson, Kenneth Winkler, and Gideon Yaffe.
The full brief is below (and also here).
Would someone mind providing some further context? What are briefs like this for? Are they effective at whatever they’re supposed to do? Can anyone submit them? Is it common for philosophers to do so? Have philosophers from other departments come together like this to file a brief in the past? I’m asking solely out of curiosity. I have no familiarity with this sort of thing.
I’m no expert but:
1) In general briefs like this are filed in order to raise issues that are important to the case but that aren’t going to be raised by either of the parties before the Court.
2) I imagine there’s debate about this but I have no clue.
3) No clue. Wikipedia says the Court has to invite you, or both parties have to consent to your brief being filed, and in this instance I imagine it’s correct, but I haven’t verified anything!
4) Depends what you mean by “common,” but I wouldn’t pick that word. Philosophers have done this before, perhaps most famously in what is known as “the philosophers’ brief” on assisted suicide. I also know of some briefs filed by philosophers in favor of animal rights (often animal personhood for animals like chimpanzees or whales) with other US upper level appeals courts (but not, I think, the Supreme Court).
5) I think plenty of past briefs have been cross-department but I haven’t checked. The logistics are probably easier if you’re all in the same department!
Amicus briefs in general, especially in Supreme Court cases, are extremely common, to the point of being routine. Some cases attract tons of them, on both sides of the case.
It’s also fairly common for groups of professors — and not just law professors — to organize and file an amicus brief (“organize” meaning deciding what you want to say, who’s going to be in the group, and then obtaining counsel to actually write[*] and file/submit the brief on your behalf). For instance, in the major gun-rights cases of recent years I’m pretty certain that groups of historians filed amicus briefs; that was also true in Dobbs.
However, I don’t know how common it is for a group of philosophers (as opposed to social scientists or historians) to file an amicus brief. I would guess it’s somewhat less common but that it has happened before. (If you look up a particular Sup Ct case on SCOTUS blog, you can see the docket with all the briefs that were filed in the case.)
Sometimes (though, for sure, not all the time) amicus briefs can have an impact on the Sup Ct Justices’ thinking, and it is not uncommon for a Justice to refer to a particular amicus brief during oral argument or in an opinion.
[*] How much of the actual writing is done by counsel, as opposed to the amici themselves (in this case, the professors), probably varies. But at a minimum lawyers are needed to put citations in the proper format and make it look like and sound like a brief.
Interesting read! I’m neither a lawyer nor a philosopher of law, but I’m keen to know what others think: In my mind, what Tennessee should have said is that medical procedures are extrinsically typed. More precisely, the type of a medical procedure is partly fixed by the health outcomes it aims at.
To give something of a limiting case: administering a large dose of morphine to a 250-lb. adult is not the same type of medical intervention as administering the same does to a 5-lb. infant.
Why type medical procedures by health outcomes? Because medical procedures have a unique teleology: they aim at certain health outcomes.
Note that we already type hormone therapies this way (at least sometimes). A male and a female who receive testosterone injections to restore their testosterone to statistically normal levels both receive testosterone replacement therapy, even though they receive drastically different doses of testosterone (and even though they aim at drastically different testosterone levels).
Granted, since health outcomes are abstract, medical procedures will be typed abstractly under this scheme. But again, that seems appropriate, given their teleology. (Notably, there’s no similar justification for typing interracial marriages differently from intraracial marriages, since interracial and intrarracial marriages have identical teleologies. The same goes for white-only schools vs. black-only schools, etc.)
If medical procedures are typed this way, then it’s not clear that the Tennessee law denies females access to medical procedures available to males, or vice versa. For example, since gender-affirming hormone therapies aim at different health outcomes than hormone replacement therapies (the former aim at resolving gender dysphoria, the latter do not), they will count as different procedures, so a female who is denied access to gender-affirming testosterone injections won’t be denied access to the same procedure a male undergoes when he receives similar injections.
Obviously, enforcing this law would still require determining a minor’s assigned sex. But it would only require this at the level of fact-finding: one would only need to take account of a minor’s physiology in order to determine what procedure they underwent. And information about an individual’s physiology can be relevant to fact-finding under other established laws. For instance, information about an individual’s race can be relevant to determining whether they were the victim of a hate crime.
Thoughts?
This seems exactly right to me. When different groups have different physiologies, the same health outcome (functionally individuated) may be realised by different medical procedures. The Yale philosophers’ claim that “the State’s ‘risk-benefit’ analysis entirely collapses into whether the procedure is, or is not, done with the purpose of conforming to sex-specific stereotypes” provides some evidence that they have neglected the way you sketch of understanding the aims of the relevant procedures.
This might work some cases but not others. The Yale philosophers very deliberately used the example of gynecomastia. Identical treatments (hormonal and surgical) can be administered to males and females for the same proximate purpose, i.e. reducing unwanted breast tissue. It’s not at all clear to me that the ultimate purpose is different. In both cases, doctors want to reduce distress associated with gendered features of the patient’s body. The mental distress of a man with gynecomastia does not seem to me essentially different from (some cases of) gender dysphoria. Perhaps a law that would exclude such cases would avoid the Yale philosophers’ objection, but that is not the law Tennessee has passed.
Also, the same defense could have been used for racial segregation. It is not clearr to me that during Jim Crow, black-only and white-only schools had the same teleology. Both were intended to prepare their students for a “race-consistent” adult life, i.e. a life within the respective black and white spheres of society. Since a white child could never fully participate in the black sphere and a black child could never fully participate in the white sphere, no child is denied any kind of schooling that would otherwise be available to them. Or anyways, so defenders of segregation could have argued.
This point could have been even “stronger” with segregated schools for Chinese-Americans on the West Coast in the 19th century. After all teaching here happened in different languages! A Chinese-American child in an Anglo-American school would have a fundamentally different educational experience then her Anglo-American classmates. After all, for her instruction would have been in “alien” language, which she didn’t speak at home and in an “alien” cultural environment.
To use a hypothetical example from the brief, consider a proposed law that forbids everyone from attending “hetero-religious ceremonies”, i.e. ceremonies not of their own faith. For many religious ceremonies, its practicioners believe that you must be a member of the faith for the performance to be felicitous and efficacious. For example, many Christian churches offer the eucharist to anyone. Yet, they may think of it primarily as an expression of their Christian faith and community. It can’t have this purpose for non-Christians. Suppose the law only applied to such ceremonies. Clearly, whatever the teleology of attending a hetero-religious ceremony is, it’s not the same as participating in one of your faith. Still, presumably such a law would “classify according to religion”.
Regarding your last point: States can pass laws that classify according to race or sex. However, such laws are subject to “heightened scrutiny”. If a law is subject to heightened scrutiny, then it “must advance an important governmental interest” (Witt v. Department of the Air Force) in order to be constitutional. Preventing hate crime arguably is just such “an important governmental interest”. However, it is less clear which important govermental interest Tennessee’s law serves. Tennessee hopes to avoid heightened scutiny, and it’s the argument presented to that end which the Yale philosophers attack.
What you say about the classifications collapses the distinction between strict and intermediate scrutiny. The former, which applies to racial classifications, requires a “compelling State interest,” the latter, which applies to sex, requires an “important State interest.” The former is the toughest test. But even applying intermediate scrutiny, it is hard to see what important interest Tennesse has in classifying based on sex, which it clearly does (here, the Yale folks are quite right.)
THANK YOU YALE PHILOSOPHERS! Makes me proud to be in the profession.
I’m no legal expert, but I find a lot of these arguments persuasive. It does seem right that the law still excludes in a way that could easily run afoul of the 14th amendment. The comparison with gender-affirming care for non-trans individuals is very helpful and important.
But the third argument doesn’t strike me as particularly friendly to those interested trans-inclusion.
The philosophers note that “Tennessee bans any medical intervention “for the purpose of: (A) Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or (B) Treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”
Then, they go on to argue that sex (defined in a purely neutral, biological, bodily fashion) cannot be “inconsistent” with any way of life or identity. “Having a particular set of chromosomes cannot prescribe a way of life any more than brown-colored eyes can.” It is only, they argue, by smuggling in normative sex stereotypes that Tennessee can identify the treatments it wants to ban.
I am surprised to see this premise here, because it seems to be precisely the premise that some Gender-critical feminists have used for years. The idea that bodies can’t be inconsistent with identities is grist for the GC mill. For example, it means that (say) wider hips are just a bodily feature, gaining or losing them doesn’t make your body more consistent with any identity or way of life. Therefore, it is only by assuming that “females are supposed to have wider hips” that a minor can think that puberty blockers will make their resulting body more consistent with their identity. But since there is (allegedly) no normative sense in which females are “supposed” to have wider hips, the use of puberty blockers is inherently irrational.
Of course this argument isn’t airtight, but it’s not clear to me that those of us interested in trans-inclusion should be arguing from premises that call into question the rationality of the very care that we are defending. Clearly there is some sense in which a body can be inconsistent with an identity.
The argument, I think, is weak. Sex is the relevant classification when a law treats men and women differently. The classification isn’t sex merely because a law may reinforce “sex specific stereotypes” and nothing more.
Suppose that there is some medical intervention that is beneficial for male children but lethal for female children (or vice versa ). As far as I can tell, the central line of argument in this brief generalises against a law that prohibits such a medical intervention on girls without necessarily prohibiting it on boys. Do the Yale philosophers really believe that such a law would be unconstitutional by the Equal Protection Clause, because it includes a sex-specific element?
Do the Yale philosophers really believe that such a law would be unconstitutional by the Equal Protection Clause, because it includes a sex-specific element?
I don’t want to speak for those who worked on the brief, but I’d guess that the right thing to say in such a case, from a legal persepctive, would be that such a regulation would easily survive the hightened scrutiny that would apply because of its sex-specific elements, because of the nature of the case you set out. “Hightened scrutiny” is a standard that’s pretty hard to meet, but not impossible, and if there really was a situation like the one you mention, it seems hard to think that the standard wouldn’t be met.
Right, but the philosophers also claim that “To the extent that Tennessee’s arguments that the statute passes heightened scrutiny are identical with its arguments that the statute does not warrant heightened scrutiny, those arguments are likewise flawed” (the running comparison to Loving v Virginia also suggests they’re going for something stronger).
Of course, my case is merely hypothetical, but the point is that nothing in the brief provides clues for how to weaken its argument to handle cases in which there are medically relevant differences between male and female children. Perhaps the philosophers doubt that there are any such differences.
I take it that the point of the brief is that the state’s arguments for thinking that the relevant law is sex-neutral are fallacious. This, together with the passage you cite, implies only that if the state’s arguments for thinking that the law passes heightened scrutiny are analogous to its arguments for thinking that the law is sex-neutral, then those arguments are likewise fallacious. I don’t think the authors mean to suggest that the law couldn’t pass heightened scrutiny, or that no similar law (such as the one you describe) could pass heightened scrutiny. The point is that the state would need a different (kind of) argument from the one(s) discussed in the brief. And it sounds like there would be such an argument available in the hypothetical case you describe.
Why would it matter that it generalizes to such a law? Nothing is lost if that kind of law is prohibited.
Surely it’s enough that it is prohibited to use medical interventions on patients for whom it would be lethal. Indeed, it strikes me as the kind of thing one wouldn’t want to specify in a law precisely because it is best to assess medical risks on a per-patient basis where possible.
In reality, it’s very likely that if such an intervention existed the lethality would be due to certain specific biological features typical of female children and whether any given female patient has those features will, of course, vary (as well, potentially, the presence of those features in male patients) not to mention the question of variation among intersex patients. The person in a position to judge the impacts of the intervention for a specific patient will be a clinician who ideally has access to all the relevant medical information and history, not a lawmaker who will never have access to all the relevant medical information and history for specific patients.
Suppose that intervention A is lethal for girls only and intervention B is lethal for boys only (and for simplicity that these are the only lethal treatments). Then a law banning lethal medical interventions is equivalent to a law banning A for girls and B for boys. The philosophers’ brief uses exactly that sort of equivalence to object to the Tennessee law as illicitly smuggling in sex-specific elements.
More generally, the philosophers’ argument will over-generalise if there are differences in how healthy functioning is realised between male and female children, since then a medical intervention that impairs functioning in boys need not impair it in girls, or vice versa; yet the Yale philosophers argue that it is a violation of the EPC (similar in status to anti-miscegenation laws) to ban medical interventions for one sex but not the other.
“Suppose that intervention A is lethal for girls only and intervention B is lethal for boys only (and for simplicity that these are the only lethal treatments).”
Then we are in a world that is simply not the actual world. Such an intervention is medically impossible because of how biological variation works in the actual world. There simply can’t be any medical intervention that is lethal for all and only one sex.
“Then a law banning lethal medical interventions is equivalent to a law banning A for girls and B for boys. The philosophers’ brief uses exactly that sort of equivalence to object to the Tennessee law as illicitly smuggling in sex-specific elements.”
In any case, as far as I can tell, their arguments are not operating in this way at all. They are not criticizing it for ‘illicitly smuggling in sex-specific elements.’ Their argument is that a plain reading of the law shows that the sex-specific elements are already present! A law prohibiting lethal interventions in general simply does not operate in the same way to generate sex-specificity: we combine the universal prohibition against lethal interventions with independent hypothetical medical facts to get that result. Sex specificity is coming from the medical realities, not the law, so ‘lethal intervention’ is sex-specific only due to contingent biological and medical fact.
In contrast, the Tennessee law makes specific reference to “sex-inconsistent” interventions. This builds sex-specificity into the law. The philosophers are rejecting attempts to argue that ‘sex-inconsistent’ is not a sex-specific property. Crucially, whether ‘sex-inconsistent’ is sex-specific will hinge not on contingent biological and medical fact, but the meaning of ‘sex-inconsistent’ itself and the sense in which sex-specificity in a law is problematic. This is just like the analogy they make to anti-miscegenation laws: the race specificity there is simply a function of the laws’ appeal to some concept of ‘belonging to the same race.’ The parallel dispute there is whether or not the prohibition on ‘race-inconsistent’ marriages or reproduction is race-specific. Surely and obviously it is in the ways that gives us good reason to reject such laws. That their argument operates in this manner is also made clear by actually reading the brief,
In an extremely different world where race was biologically real and where intimate relations that were ‘race-inconsistent’ were lethal (perhaps participants would explode), a law prohibiting murder would de facto be an anti-miscegenation law. Is this strange counterfactual revealing some kind of flaw in the reasons anti-miscegenation laws have been rejected as discriminatory? I doubt it and I think it’s plain to see that there is a difference between an anti-miscegenation law and a law against murder in a hypothetical world where ‘race-inconsistent’ intimacy was lethal. One is discriminatory in virtue of the content of the law itself and the other is discriminatory because the world has a very specific set of biological facts.
With respect to long-term sexual functioning, there are medically relevant differences between the sexes in the actual world. J Y’s comment below is relevant to why Tennessee may have been led to use the language of sex-inconsistency to pick out the category of interventions it has in mind. There may be a lesson here about borrowing language from one’s opponents, if those opponents aren’t willing to stick by that language under challenge.
There could be a law which forbids treatment that, according to the best medical knowledge, will lead to the patient’s death (‘lethal treatment’). In fact such laws already exist. In this case, the characterisation ‘lethal treatment’ is more “apt” (brief, p. 15) than, (1):
(1) lethal-for-females treatment administered to a female or lethal-for-males treatment adminstered to a male’.
In contrast, the amici believe that (2) is a more apt characterisation than (3)
(2) ‘treatment intended to feminise features administered to males or treatment intended to masculinise features administered to females’
(3) ‘sex-inconsistent treatment’.
Whether or not (2) is indeed more apt, the amici argue that the State of Tennessee begs the question by relying on the (unstated and unargued) premise that (3) is more apt. Any addressee who rejects the conclusion (that the law doesn’t classify acccording to sex) also rejects the unstated premise (that (3) is more apt). The State of Tennessee could provide (a) arguments that (3) is more than (2), or (b) another characterisation of the law which is more apt than (2) and which doesn’t classify according to sex.
Contra the amicus brief, the state does not claim that some identities are inconsistent with a particular sex. Rather, the state asserts that gender-affirming doctors are claiming that some identities are inconsistent with an individual’s sex and, in turn, recommending medical procedures based on the purported inconsistency. The law attempts to ban procedures, regardless of sex, that are based on the purported inconsistency between identity and sex. As Nick alludes to above, by pointing out the stereotyping involved in the claim that an identity is inconsistent with one’s sex, the amicus brief seems to inadvertently undermine the case for gender-affirming treatment. The state can say they completely agree that it’s sex-stereotyping to claim that an identity is inconsistent with one’s sex, and that’s exactly why they want to stop the medicalization of such a diagnosis, for both sexes.
It does seem like there’s a de re de dicto confusion here. Imagine there were a constitutional right to have any name you like irrespective of “what sort of person you are”. Surely that doesn’t prevent there being a law that says “it’s illegal to call yourself something that’s inconsistent with your name” on the grounds that this is preventing people who’s name is Sam from calling themselves Madison. The law bans inconsistency de dicto. That doesn’t discriminate against people named Sam. It applies to everyone. A law that said “it’s illegal to name your child in a way that is inconsistent with how they look” would be alleging the existence of de re inconsistencies and banning them. That might run afoul of the argument given here (even though “it applies to everyone”). The “it applies to everyone” argument isn’t *generally cogent* but it does seem to be in cases that ban things related to de dicto inconsistency.
Just curious whether you have read the States’ brief. Does TN actually make that claim about the doctors?