The Commentary Magazine Podcast: Changing Sex Is Like Taking an Aspirin?

Episode Release Date: December 5, 2024
Host: John Podhoretz, Editor of Commentary Magazine
Guests: Abe Greenwald (Executive Editor), Matthew Continetti (Commentary Columnist and Director of Domestic Policy Studies at the American Enterprise Institute), Seth Mandel (Senior Editor)
Available at: Ricochet.com

Introduction

In the December 5, 2024 episode of The Commentary Magazine Podcast, host John Podhoretz, alongside Abe Greenwald, Matthew Continetti, and Seth Mandel, delves into one of the most consequential Supreme Court cases of the year: SCT v. The United States. This landmark case challenges a Tennessee law that restricts gender-affirming medical care for adolescents and individuals under 18. The discussion is rich with legal analysis, philosophical debates, and critical insights into the interplay between biology, law, and societal norms.

Overview of SCT v. The United States Oral Arguments

John Podhoretz opens the discussion by highlighting the extraordinary nature of the Supreme Court's oral arguments in SCT v. The United States. He describes the session as reminiscent of a "Talmudic reasoning session," emphasizing the profound doctrinal divisions evident during the proceedings.

Podhoretz [00:50]: "It is like being present at a Talmudic reasoning session or some medieval scholastic conversation about angels dancing on the head of a pin."

The primary focus of the case revolves around Tennessee's law limiting access to gender-affirming treatments for minors, raising significant questions about constitutional protections, particularly the Equal Protection Clause.

Solicitor General's Position and Key Arguments

Solicitor General Elizabeth Preligar, representing the Biden administration, presented arguments grounded in traditional Supreme Court principles, advocating for rational basis and heightened scrutiny in evaluating laws that differentiate based on sex.

Podhoretz [02:15]: "She is making what sounds like a completely standard set of Supreme Court arguments about the rational standards and heightened scrutiny."

Preligar's central thesis posits that biological sex classifications should remain immutable categories within legal frameworks, arguing against the notion that gender identity can override biological determinants.

Supreme Court Justices' Interactions and Questions

Justice Ketanji Brown Jackson played a pivotal role during the hearing, probing the implications of allowing individuals to medically alter their biological sex. Her questioning underscored skepticism about equating gender reassignment with everyday actions like changing one's clothing.

Justice Jackson [03:21]: "A person who is biologically female who wants to take the medication... can't get it. Is that right under the Tennessee law?"

Justice Samuel Alito further complicated the discourse by referencing European precedents and the CAST report, critiquing the lack of evidence supporting the efficacy of gender-affirming treatments in reducing suicidality among transgender youth.

Alito [08:45]: "There is no evidence that gender affirmative treatments reduce suicide."

Meanwhile, Chief Justice John Roberts and Justice Brett Kavanaugh emphasized judicial restraint, questioning the appropriateness of the Supreme Court adjudicating what they consider state regulatory matters.

Roberts [15:46]: "Why would you put us in a position where we would be striking down laws in 25 states on this extremely controversial topic?"

ACLU's Position and Challenges

Matthew Continetti critiques the American Civil Liberties Union (ACLU) and its attorney Chase Strangio for their advocacy of gender identity as a legally protected class. Strangio's arguments are portrayed as ideologically driven, lacking substantive empirical support.

Continetti [12:05]: "The ACLU... argued that there is no such thing as biological sex, and people can assume whatever gender identity they want."

Strangio's reliance on the CAST review was met with skepticism, particularly regarding its limited scope and outdated data.

Continetti [14:15]: "The CAST review only looked at studies up until 2022... Are there going to be wonderful new data from 2023 and 2024?"

Historical and Legal Context

The podcast hosts draw parallels to previous Supreme Court decisions, notably Bostock v. Clayton County (2020), where gender identity was recognized under the Equal Protection Clause regarding employment discrimination. Justice Neil Gorsuch's role in Bostock and his silence during SCT v. U.S. raises questions about potential shifts in judicial interpretation.

Continetti [16:30]: "Once you bring it to the courts, you open a door that is not going to work in favor of child sex changes."

Medical and Pharmaceutical Considerations

A significant portion of the discussion centers on the biological differences in medical treatments between sexes. Seth Mandel highlights historical discrepancies in drug testing and dosage recommendations, underscoring the necessity of recognizing sex-based physiological variations.

Mandel [26:56]: "Men require a greater dosage of opioids... SSRIs are the preferred therapy in women with depressive symptoms."

John Podhoretz references Claire Lemon's article "The XX Factor," which critiques the medical profession's historical mishandling of sex differences in drug testing.

Notable Quotes and Their Significance

1. Justice Sotomayor on Gender Reassignment:

   Continetti [31:11]: "Justice Sotomayor... likened gender reassignment for youth to taking an aspirin."

   This comparison is criticized as trivializing the profound and irreversible nature of gender-affirming treatments.

2. Alito's "Kill Shot":

   Podhoretz [33:10]: "Alito's kill shot says to Strangio..."

   Alito's questioning aims to dismantle the foundations of recognizing transgender status as a protected class under equality jurisprudence.

Conclusion and Possible Outcomes

The hosts express skepticism about the Supreme Court's inclination to uphold Tennessee's restrictive laws. They anticipate that the justices, particularly Roberts and Kavanaugh, will favor judicial restraint, leaving such regulatory matters to state legislatures.

Continetti [15:05]: "This is something that the state should be left to regulate. And I think that's the settlement that would be legitimate in the eyes of the public as well."

Additionally, they highlight the philosophical battle between entrenched biological determinism and emerging gender identity frameworks, positing that the Supreme Court's decision will have profound implications for the future of transgender rights and medical autonomy.

Closing Remarks

The episode concludes with reflections on historical figures like Paul McHugh, a prominent psychiatrist who opposed transgender surgeries at Johns Hopkins, underscoring the enduring tension between medical ethics and societal trends.

Podhoretz [40:28]: "We're now down to the standard of can I go to the 711 and buy a beer. Can I get something that will sterilize me? Because I want to try? Yes. They're the same. That is not equal protection."

The hosts reinforce their stance on maintaining biological categorizations within legal and medical contexts, advocating for a cautious approach to gender-affirming policies, especially concerning minors.

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Discussion on Presidential Pardons

Post-advertisement, the conversation shifts to a critical analysis of potential presidential pardons by Joe Biden, exploring the implications of preemptive pardons for figures like Anthony Fauci and Adam Schiff. The hosts debate the ethical and political ramifications of using the pardon power to shield individuals from future prosecutions, drawing parallels to historical precedents and exposing concerns about corruption and abuse of executive power.

Mandel [65:35]: "But by the way, the pardon thing also get out of hand. The pardon thing has actually actual good uses, the fun pardon, I will call it..."

They caution against eroding the foundational principle that no one is above the law, highlighting the dangers of granting immunity based on political affiliations or potential future allegations.

Final Thoughts

John Podhoretz concludes with a poignant reflection on the legacy of presidential pardons, juxtaposing the noble intentions of historical figures against contemporary misuse. He emphasizes the importance of preserving the integrity of the pardon power to maintain public trust in governmental institutions.

Podhoretz [71:41]: "Fool's Names, Fool's Faces, which you can download... a good recommendation."

The episode wraps up with a reaffirmation of the podcast's commitment to dissecting pressing political and social issues with clarity and rigor.

Key Takeaways:

• SCT v. The United States represents a pivotal Supreme Court case challenging gender-affirming laws for minors.
• The legal arguments hinge on the interpretation of the Equal Protection Clause and the immutability of biological sex.
• Supreme Court justices display deep divisions, with conservative members advocating for judicial restraint and traditional sex classifications.
• The ACLU's stance is scrutinized for its ideological underpinnings and lack of empirical support.
• Medical practices demonstrate inherent biological differences that complicate uniform legislative approaches.
• The discussion extends to the broader implications of presidential pardons and the potential for executive overreach.

Notable Quotes:

• “Changing the biological sex of an individual is like changing your shirt; it's like taking a pill that will make you feel different.” – John Podhoretz [00:50]
• “There is no evidence that gender affirmative treatments reduce suicide.” – Justice Alito [08:45]
• “Justice Sotomayor... likened gender reassignment for youth to taking an aspirin.” – Matthew Continetti [31:11]

For listeners seeking a comprehensive understanding of the intersection between law, biology, and societal norms in the context of transgender rights, this episode offers a profound and critical exploration of one of the most contentious issues of our time.