An appellate court Thursday night upheld a law in Kentucky and Tennessee banning gender-affirming health care for transgender minors.
In a 2-1 decision, the Sixth Circuit Court of Appeals’ three-judge panel said the matter was one for state legislatures to decide, not “life-tenured judges construing a difficult-to-amend Constitution,” they wrote in their 83-page decision.
“No one in these consolidated cases debates the existence of gender dysphoria or the distress caused by it. And no one doubts the value of providing psychological and related care to children facing it,” Chief Judge Jeffrey Sutton and Judge Amul Thapar wrote in their majority opinion.
“The question is whether certain additional treatments — puberty blockers, hormone treatments, and surgeries — should be added to the mix of treatments available to those age 17 and under,” they wrote.
Judges Sutton and Thapar said gender dysphoria, or being transgender, was a “relatively new diagnosis with ever-shifting approaches to care.”
As such, they want to be “humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social and policy changes,” they wrote. “For these reasons, we reverse the preliminary injunctions issued in these cases and remand them for further proceeding.”
Judge Helene White dissented.
Thursday night’s decision is the latest legal blow to seven Kentucky transgender teenage plaintiffs and their families, who sued the state in May over the ban. Republican Attorney General Daniel Cameron, who has fought for his ability to enforce the statewide prohibition, celebrated the decision, posting on social media to say “another day, another win for Kentucky kids.”
He added “our kids would still be under attack without Senate Bill 150,” which he said “protects Kentucky kids from experimental sex-change treatments.”
The American Civil Liberties Union of Kentucky, representing the plaintiffs, called the decision “heartbreaking for trans youth across the state.”
“It ignores evidence from medical experts and the trial court who agrees that this care is necessary, effective, appropriate, and banning it undermines parents’ right to direct the upbringing of their children,” the ACLU said.
Kentucky’s ban on gender-affirming surgeries, hormone therapy and puberty blockers for youth living with gender dysphoria has been in effect since July. After that provision — part of the larger SB 150 — became law with broad Republican backing over Democratic Gov. Andy Beshear’s veto in March, the ACLU and the Center for Gay and Lesbian Rights sued on behalf of those seven families.
Kentucky’s plaintiffs are specifically challenging the ban on hormone therapy and puberty blockers. Their lawyers argue that denial of such evidence-based care violates the Fourteenth Amendment under the Equal Protection clause because it discriminates on the basis of sex. The ACLU of Kentucky also argues it violates parents’ rights to seek and follow medical advice to safeguard their children’s health.
More than 20 major U.S. medical associations signed on to the lawsuit in support of the plaintiffs. In their 35-page brief filed in August, which details the clinical understanding of gender dysphoria and effective treatment for it, medical associations including the American Medical Association and the American Academy of Pediatrics explained such a ban put trans kids at “risk of significant harm.”
The “widely accepted recommendation of the medical community, including that of the respected professional organizations participating here . . . is that the standard of care for treating gender dysphoria is gender-affirming care,” they wrote.
A similar ban was made law in Tennessee this year and promptly challenged by three trans plaintiffs and their families. In July, the same three-judge panel denied injunctive relief to plaintiffs in that lawsuit. The decision restored the Volunteer State’s ban on gender-affirming health care, and in doing so, consolidated Kentucky’s and Tennessee’s cases into the same appeals process.
Plaintiffs had asked the appellate court for previous preliminary injunctions blocking both laws to be reinstated. A preliminary injunction is only granted if there’s evidence that, without one, both laws will cause irreparable harm and injury. Plaintiffs must present a “clear showing” they are likely to succeed on a case’s merits, that there is proof of irreparable harm without that intervention, and that public interest supports them, the court wrote.
Thapar and Sutton do not find these standards were sufficiently met.
What’s more, because so many states have begun passing laws restricting this type of health care, a sweeping decision from the judiciary one way or the other prevents governing bodies from further democratically deliberating these policies, they said.
Because so many states (close to 20) have enacted similar restrictions, judicial intervention to block laws from taking effect “would start to grind these all-over-the-map gears to a halt,” they said.
“Given the high stakes of these nascent policy deliberates —the long-term health of children facing gender dysphoria — sound government usually benefits from more rather than less debate, more rather than less input, more rather than less consideration of far-minded policy approaches,” they said.
Allowing the democratic process to exist is “all the more critical in view of two realities looming over both cases: the concept of gender dysphoria as a medical condition is relatively new and the use of drug treatments that change or modify a child’s sex characteristics is even more recent,” they added.
Keeping citizens and legislatures from “offering their perspectives on high-stakes medical policies, in which compassion for the child points in both directions, is not something life-tenured federal judges should do without a clear warrant in the constitution.”
Who should get to decide?
Judge White, in her 32-page dissent, said the laws being challenge “discriminate based on sex and gender conformity and intrude on the well-established province of parents to make medical decisions for their minor children.” she wrote.
White’s lengthy dissent challenged Thapar and Sutton’s findings that this type of care is newer and therefore less established.
“A substantial body of evidence — including cross-sectional and longitudinal studies, as well as decades of clinical experience — shows that these medical interventions work,” White wrote.
As for Due Process rights, “Tennessee’s and Kentucky’s statutes plainly intrude on parental autonomy,” she said. And “the majority’s focus on the government’s power over medical treatment, in general, misses the mark.”
Gender-affirming health care is not banned for adults, just those under age 18. “Thus, the issue is not the what of medical-decision making — that is, any right to a particular treatment or a particular provider,” White said.
“Rather the issue is the who — who gets to decide whether a treatment otherwise available to adults is right or wrong for a child? Do parents have the right to make that call, or does the government get to decide for itself, notwithstanding the parents’ determinations of what is in their child’s best interests?”
Both laws tell kids and their parents, “they cannot undergo medical care because of the accidents of their births and their failure to conform to how society believes boys and girls should look and live,” White concluded.
“The laws further deprive the parents — those whom we otherwise recognize as best suited to further their children’s interests — of their right to make medical decisions affecting their children, in conjunction with their children and medical practitioners,” she said. “For these reasons, I dissent.”
This story may be updated.