Lawsuit against Kentucky’s gender-affirming health care ban goes before federal court

A federal appeals court on Friday heard oral arguments in two cases from Kentucky and Tennessee that will likely decide the future of access to gender-affirming medical care for transgender youth.

“Who decides whether certain medications to treat gender dysphoria in children are permitted in Kentucky’s borders?” Matthew Kuhn, state solicitor general, said to Sixth Circuit Court of Appeals Chief Judge Jeffrey Sutton, Judge Amul Thapar and Judge Helene White. “Is it Kentucky’s General Assembly, or is it the courts?”

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 Senate Bill 150 — became law over Democratic Gov. Andy Beshear’s veto in March, the American Civil Liberties Union of Kentucky sued the state on behalf of seven trans minors and their families.

The ACLU and National Center for Lesbian Rights argue that the prohibition on puberty blockers and hormones, specifically, violates their plaintiffs’ and their parents’ protected rights under the Fourteenth Amendment. They did not challenge the ban on gender-affirming surgeries.

They claim the law violates the Equal Protection Clause under the Fourteenth Amendment because it “expressly discriminates on the basis of sex,” the ACLU wrote in a court filing. It “targets transgender adolescents, denying them medically-necessary care because of their gender nonconformity.”

This denial also violates parents’ rights under the same federal protections to “seek and follow medical advice to safeguard their children’s health,” the ACLU said.

Attorney Stephanie Schuster, arguing on behalf of the plaintiffs, reiterated this claim Friday, arguing Kentucky’s law “relies on express sex-based classifications.” Because the “statute expressly draws lines based on sex,” it violates the Equal Protection clause, she said.

Though trans youth legally have access to gender-affirming care once they turn 18, Schuster said, the prohibition until then not only violates their constitutional right, but it deprives them of what’s considered the evidence-based medical care in the U.S. — a standard no one disputed during Friday’s arguments except Kuhn.

“Withholding treatment, even up until the age of 18, and allowing puberty to occur consistent with the sex identified at birth is extraordinarily harmful to these children,” Schuster said. “What (SB150) regulates is not just procedures they can get, but it’s many aspects of these children’s lives while they’re at school that are medically indicated and medically necessary to live and develop into functioning, happy adults.”

Senate Bill 150 also includes restrictions on public school curriculum gender and sexuality, prevents districts from requiring teachers to use a trans student’s correct name or pronouns, and requires districts to set policies barring trans students from using restrooms that correspond with their gender identity.

In May, plaintiffs asked a federal judge to temporarily block that portion of the new law from taking effect while the merits of the larger suit, Jane Doe v. Thornbury, are decided in court. U.S. District Judge for the Western District of Kentucky David Hale granted their request in June, saying the treatments blocked by SB150 are “medically appropriate and necessary for some transgender children under the evidence-based standard of care accepted by major medical organizations in the U.S.”

Republican Attorney General Daniel Cameron, who is running for governor to unseat Beshear, has ardently defended the constitutionality of the new law and his ability to enforce it. After Hale’s order, Cameron, who is running for governor, promptly petitioned the Sixth Circuit Court of Appeals to allow him to enforce the new ban.

While this was happening, a similar lawsuit in Tennessee, L.W. v. Skrmetti, whose plaintiffs had also been granted temporary relief, made its way before the Sixth Circuit appellate court — a regional panel that covers Kentucky, Tennessee, Ohio and Michigan. A panel of appellate judges stayed that lower court’s order, reinstating the Volunteer State’s gender-affirming medical care ban. In doing so, a three-judge panel also consolidated Kentucky’s and Tennessee’s cases into the same appeals process. A final ruling on a full appeal of both lower courts’ bans is expected by Sept. 30.

Oral arguments in that consolidated case are what took place Friday afternoon.

Referencing the initial questions raised by Kuhn, Schuster said, “my colleague started his case by saying this is a case about who decides, the state or the courts?” She agreed with that question, she said. But the who isn’t the Legislature or the courts, it’s “the parents or the state,” she said. “The state can usurp the authority of a fit parent who is acting in the best interest of their child.”

Chief Judge Sutton interrupted, and said he’s sympathetic to this scenario, but where is the line?

“The idea that parents can require treatment that’s otherwise been regulated strikes me as having some serious slippery slope problems,” he said.

Kuhn said it was “interesting” how the state and the plaintiffs both believe they’re approaching the issue with “compassion,” but their positions at odds: “the plaintiffs think Senate Bill 150 is going to cause harm to children, and the Kentucky General Assembly thinks it’s going to prohibit harm,” he said.

Kuhn called the ban a “compassion measure passed by our General Assembly,” and one that 42 states, total, are discussing. “More debate, rather than less debate, is preferred on this. It’s a good thing the states are focused on this. We ask the court to reverse the preliminary injunction.”

Amicus brief highlights

Cameron, in his pleas to the judicial system to let him enforce these bans, was joined by the conservative, religiously-affiliated Family Foundation, the Dr. James Dobson Family Institute, the Family Research Council, and 21 GOP-led states that have enacted similar bans, all of whom filed amicus briefs supporting his argument.

Most label the type of medical care in question as “experimental.” In public statements related to the lawsuit and in court filings, Cameron has said the state must protect kids from “unnecessary experimentation,” and “experimental procedures with long-term irreversible consequences.”

The Dr. James Dobson Family Institute, which bills itself as a nonprofit that “uplifts and defends the biblical and traditional framework of the family,” agreed that parents have a right to make medical decisions on behalf of their children. “That said, parents’ rights to make health care decisions does not supersede states’ power to regulate experimental and dangerous drugs or medical treatments,” the group said in a 43-page brief.

Siding with the plaintiffs were 21 other states, more than 20 major U.S. medical associations, a number of lawyers, professors of medicine and public health who teach about biomedical ethics and health-related rights and discrimination, as well as dozens of trans adults who shared personal stories.

In their 35-page brief, which delves into the clinical understanding of gender dysphoria and effective treatment for it, medical associations including American Medical Association, the American Academy of Pediatrics, and the American Academy of Child and Adolescent Psychiatry explained why both states’ bans will put trans youth 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 in an early August filing.

This type of care does not always include medical intervention, but for teenagers with “persistent gender dysphoria that worsens with the onset of puberty, gender-affirming care may include medical interventions to align their physiology with their gender identity,” the organizations said in their 35-page brief.

In these situations, when medical interventions are provided to “carefully evaluated patients who meet diagnostic criteria,” that treatment can lead to “significant improvements in the mental health and overall well-being” of that population.

In another brief supporting the plaintiffs, 57 trans adults, including the actor Elliot Page, emphasized the importance of allowing this type of health care to remain accessible to trans youth, and the meaningful role this care played in their own lives.

“Like the overwhelming majority of people who receive this care, (they) benefited from it immensely,” the brief reads. “Some were fortunate enough to be able to begin receiving this care as minors. For the majority, however, the barriers to accessing this care — due, fundamentally, to discrimination — were insurmountable until adulthood. (Those) who received gender-affirming health care as minors describe it as crucial to their well-being and even survival. Many who started care after adolescence suffered as a result of this delay.”