Here’s a great law school exam question. The state of X has a new law that forbids trans people from getting certain kinds of medical treatment that have virtually unanimous support from the medical community. There are, however, a few eccentric doctors who support the state law.
Lawyers for some trans people in the state file a lawsuit based on alleged equal protection and substantive due process violations. Most cases based on these theories fail, because they are subject to an extremely deferential standard of review. This case, however, raises some fascinating questions:
- Are trans people a suspect class, entitled to a higher standard of review? They don’t have much of a history, but you can certainly argue that the record of official oppression is clear, and that suspect class status is appropriate.
- Is state interference with medical treatment prescribed by a doctor, and consistent with prevailing practices, a violation of a fundamental right? Remember, the right to privacy wasn’t eliminated in Dobbs; that case only applies to abortion. Medical autonomy sounds very much like a privacy right.
- Even if the case is controlled by the mere rationality standard, is the support of the overwhelming majority of the medical community enough to get the plaintiff over that hurdle? If the case law is applied strictly, probably not, but you could very well see judges using a slightly higher standard of review than the case law suggests is appropriate to invalidate the restrictions based on the persuasiveness of the medical testimony.
We’re going to be seeing cases like this on a routine basis in the very near future. They will make fascinating reading for constitutional lawyers like me.