The Supreme Court is set to hear oral argument on Dec. 4 over whether Tennessee violated the Constitution by banning so-called “gender-affirming care” for minors.
The Biden administration is asking the Supreme Court to overturn an appeals court decision upholding Tennessee’s law. U.S. Solicitor General Elizabeth Prelogar told the justices that the ban constitutes a form of sex-based discrimination and violates the equal protection clause of the 14th Amendment.
Tennessee, meanwhile, defended itself by claiming that the procedures involved in “affirming care” were dangerous to minors and the state had a compelling interest in protecting them.
The case, known as U.S. v. Skrmetti, has offered the Supreme Court the opportunity to rule on a hotly debated topic after refusing to hear related cases in its prior term. The justices’ ruling will likely impact how courts judge future claims about the equal protection clause, gender, and sex-based discrimination.
Sarah Marshall Perry, a senior legal fellow at conservative think tank the Heritage Foundation, told The Epoch Times: “Gender identity touches a multitude of different societal avenues, and we’re only going to see that increase until and unless the Supreme Court weighs in with some clarity.”
One of the main precedents that will likely come up during the Dec. 4 oral argument and play a role in the justices’ decision comes from the court’s majority opinion in Bostock v. Clayton County. That case saw Justice Neil Gorsuch holding that Title VII of the Civil Rights Act, which forbids sex-based discrimination in employment, applied to gender identity and sexual orientation.
Gorsuch’s opinion said that the textual approach to Title VII supported the conclusion that employment discrimination was sex-based and violated Title VII if the decision would not have been made but for an individual’s sex.
So far, multiple courts have used his reasoning to affirm gender-related arguments outside of Title VII despite the majority’s attempt to confine the decision to questions involving that statute. Prelogar similarly told the Court that his reasoning could be applied in the equal protection context.
The Court could take up other gender-related cases this term, such as those involving women’s athletics. For example, Idaho has asked the Supreme Court to reverse the U.S. Court of Appeals for the Ninth Circuit’s ruling that Bostock supports an equal protection claim for biological males to participate in women’s sports.
Predicting a Supreme Court ruling is always difficult, but the justices’ stances in Bostock might provide some answers. Justices Samuel Alito, Brett Kavanaugh, and Clarence Thomas each dissented, with the first two writing their own separate opinions.
Alito’s opinion, which was joined by Thomas, said that Gorsuch’s opinion would have implications for many areas of law, including religious liberty, health care, free speech, and other constitutional claims. “The entire federal judiciary will be mired for years in disputes about the reach of the Court’s reasoning,” he said.
—Sam Dorman
SAVING SOCIAL SECURITY
Social Security has long been the untouchable “third rail” of American politics that virtually no Republican or Democrat dares to propose changing for fear of committing political suicide.
On track for insolvency by 2035, the nation’s largest entitlement program needs major reforms. And the traditional solutions—raising taxes or cutting benefits—are among the most unpopular positions a politician can take.
With time running out to shore up the benefit for future generations, two lawmakers are exploring new ways to address the crisis.
Rep. John Larson’s (D-Conn.) Social Security 2100 Act would apply Social Security taxes to all taxpayers making more than $400,000 annually. The present salary cap on Social Security taxes is set at $168,600.
“Millionaires have already stopped paying into the Social Security program. Bill Gates stopped paying back in January,” Larson said on the House floor in March.
“That is wrong, it’s not right, but to lift that cap will allow us to not only extend the solvency of Social Security but increase benefits across the board.”
An analysis by the Peter G. Peterson Foundation found that the proposal would nearly triple the amount earners making $500,000 a year would pay in annual Federal Insurance Contributions Act (FICA) levies.
Sen. Bill Cassidy (R-La.) calls his alternative proposal the “Big Idea.” It would involve the creation of a new $1.5 trillion investment fund separate from the Social Security Trust Fund, which receives FICA revenues that pay for benefits.
Asked how the new fund would be financed, the doctor and ranking Senate Health Committee Republican said, “That is open to negotiation. You could sell government assets to fund it over time, you could borrow it and put it in there.”
Cassidy added that such a move would not increase the national debt because the money would be put into escrow.
“And according to the Congressional Budget Office, that’s going to be considered a wash,” he said, noting that the same approach is already in use in the pension field.
The fund is projected to generate enough profits to cover 75 percent of Social Security’s revenue shortfall, according to Cassidy. He said he is open to alternative approaches for covering the remaining 25 percent.
—Samantha Flom and Mark Tapscott
BOOKMARKS
Former President Donald Trump says he would fire special counsel Jack Smith “within two seconds” of being sworn in as president if elected next month. The former president does not believe he would be impeached for the move.
Vice President Kamala Harris opened up about her faith and her grief over her mother’s death at a CNN town hall. She also fielded questions on immigration, abortion, and Trump.
Early Wisconsin voters are turning out in big numbers, undeterred by reports of technical issues. The news comes as Republicans have pulled ahead of Democrats in early voting in North Carolina, another fierce battleground.
Pennsylvania voters whose mail-in ballots are spoiled for lack of a secrecy envelope must be allowed a provisional ballot, the state’s Supreme Court ruled on Thursday. Republicans had argued that such an allowance was not legal under current law.
U.S. Immigration and Customs Enforcement abandoned plans to release illegal immigrants into Tennessee amid pushback from state officials, newly released documents show. The agency was forced to produce the records due to a lawsuit filed by Tennessee Attorney General Jonathan Skrmetti.
