Equal Citizenship Yes, Intermediate Scrutiny No

Abstract

United States v. Skrmetti, a constitutional challenge to Tennessee’s limits on children’s use of cross-sex hormones, offers the Supreme Court the chance to rethink its 1976 ipse dixit in Craig v. Boren that “previous cases establish that classifications by gender must serve important objectives and must be substantially related to achievement of those objectives.” Intermediate scrutiny has six fatal flaws:

• its false claim about what “previous cases establish,”

• Fourteenth Amendment discussions in 1866 that lump gender and age distinctions together, inconsistent with their radically different treatment in Craig and Murgia,

• the fraught nature of all of the terms in the tiers-of-scrutiny framework: “substantial,” “important,” “narrowly tailored,” “compelling,” “rational,” and “legitimate,” 

• inconsistency about whether widespread practice counts for or against heightened scrutiny, 

• the heterogeneity of the costs of policies—e.g., male-only draft registration and young-female-only low-alcohol-beer consumption—treated by Craig as equally in need of justification, and

• the implausibility of making so much turn on whether a distinction—e.g., distinctions based on pregnancy, or symmetric sex distinctions—counts as “classification by gender.”

Abandoning Craig does not, however, discard Fourteenth Amendment rights for women (or those with gender dysphoria). Rather than intermediate scrutiny, the Court should ground women’s Fourteenth Amendment rights in the nineteenth-century tradition of equal citizenship. The 1848 Seneca Falls Declaration, Jacob Howard’s introduction of the Fourteenth Amendment to the Senate, 1866 campaign discussions of voting rights, Matthew Carpenter’s argument for Myra Bradwell, the 1872 and 1876 Republican platforms, and Minor v. Happersett all converge to support a simple path from the Fourteenth Amendment’s text to women’s equal Fourteenth Amendment citizenship: citizens are those whose interests the government must promote impartially. While women were long denied equal voting and occupational rights, such limits were defended, not on the basis that female citizens do not matter, but on the empirical ground that (in the case of voting) men were naturally inclined to act in women’s interests as well as their own, and that (in the case of occupational limits) “[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” These empirical claims can, of course, be challenged. But like all citizens, women are subject to governmental paternalism; their “right to ... pursue and obtain happiness” is “subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.” Only if a statute is clearly not based on a good-faith belief that it will serve women’s interests as well as it serves the interests of men may courts properly intervene. Because the regulations challenged in Skrmetti are based on a good-faith belief that a delay in the use of cross-gender hormones will best promote the health of young citizens with gender dysphoria, they are akin to prohibition laws. States may prohibit alcohol—even alcohol seen as medically necessary by some doctors—to prevent decisions states reasonably regard as likely to be self-destructive. States may likewise delay the use of cross-gender hormones until adulthood.