Sonia Sotomayor Makes Misleading Comparison Between Gender Transitions for Children and ‘Taking Aspirin’

Supreme Court Justice Sonia Sotomayor made a tenuous comparison between between giving children puberty blockers and cross-sex hormones — as well as performing gender-transition surgeries on them — and “taking aspirin” during oral argument in a high-profile case on Wednesday.

Said case pertained to Tennessee’s SB1, which prevents minors from receiving puberty blockers, cross-sex hormones, or surgeries associated with transitioning. Critics, including the petitioners, allege the law violates the 14th Amendment’s Equal Protection Clause by discriminating on the basis of sex.

In defense of the legislation, Tennessee Solicitor General Matthew Rice submitted, “These interventions carry often irreversible and life altering consequences. In the systematic reviews conducted by European health authorities have found no established benefits,” and that “politically accountable lawmakers, not judges, are in the best position to assess this evolving medical issue.”

Rice went on to argue that this issue is “a pure exercise of weighing benefits versus risk. And the question of how many minors have to have their bodies irreparably harmed for unproven benefits is one that is best left to the legislature.”

“I’m sorry, counselor,” interjected Sotomayor. “Every medical treatment has a risk — even taking aspirin. There is always going to be a percentage of the population under any medical treatment that’s going to suffer a harm.”

She continued:

So the question in my mind is not: Do policymakers decide whether one person’s life is more valuable than the millions of others who get relief from this treatment? The question is: Can you stop one sex from the other, one person of one sex, from another sex from receiving that benefit? So if the medical condition is unwanted hair by a nine-year-old boy who can receive estrogen for that, because at nine years old, if he has hair, he gets laughed at, and picked on, and his puberty is coming in too early. But a girl who has unwanted hair says or wants unwanted, has unwanted breasts, or a boy at that age can get that drug, but the other can’t.

That’s the sex-based difference. It’s not the med — the medical condition is the same, but you’re saying one sex is getting it and the other is not.

The two went on to tangle over whether the law made a distinction based on the sex of the patient, or the purpose of the medical treatment.

But regardless of the your view on the central question of the case, one must admit that Sotomayor’s citation of aspirin as a comparable example to these other, much more experimental and invasive interventions is so flawed as to be dishonest.

The mere fact that everything might come with some amount of risk is not an argument for accepting large amounts of it in particular instances. Noting that driving a vehicle down the street to the grocery store is not without its risks is not an argument for doing doughnuts at high speeds in a crowded parking lot. Noting that traveling to London comes with its risks is not an argument for booking a flight to Kabul.

All medical treatment comes with some risks, yes. But taking an anti-inflammatory and permanently altering children’s bodies don’t come with the same kind or the same chance of harm to the patient.

It’s baffling that Sotomayor would think to make such a comparison; unless, of course, obfuscation was her aim.

Watch above via C-SPAN.

This is an opinion piece. The views expressed in this article are those of just the author.