Early Transgender Care Challenge Wins Falter at Appeals Courts

Federal courts grappling with challenges to state transgender care bans are diverging on whether such bans run afoul of constitutional rights.

District courts have temporarily blocked bans in at least seven states, but two appeals courts are drawing narrower boundaries around US Supreme Court precedents. Those decisions, combined with a ruling from a different appeals court last year upholding a pause on one ban, make it increasingly likely that the issue will wind up before the high court.

“There’s a brewing circuit split,” Elana Redfield, federal policy director of the Williams Institute at the University of California, Los Angeles Law School, said. “We’ll see more activity at the circuit court level. It is likely that this will have a lot more opportunity to be heard and actually get to the Supreme Court. But we have yet to see anything really definitive.”

District courts have blocked enforcement of gender-affirming care bans in Alabama, Arkansas, Florida, Georgia, Indiana, Kentucky, and Tennessee. The US Court of Appeals for the Eleventh Circuit on Aug. 21 allowed the Alabama state law to take effect. The appeals court found the plaintiffs—transgender minors, the minors’ parents, two doctors, and a pastor—are unlikely to prevail in their constitutional challenge.

That decision came less than two months after the US Court of Appeals for the Sixth Circuit allowed Tennessee to enforce its ban on gender affirming care for minors temporarily until an appeal of the preliminary injunction could be resolved. Last year, the US Court of Appeals for the Eighth Circuit upheld a federal district court decision to block the Arkansas ban.

A Georgia official has asked the US District Court for the Northern District of Georgia to reconsider its preliminary injunction after the Eleventh Circuit decision. Florida is trying to get the Eleventh Circuit to undo two federal court decisions in which a judge held that state laws limiting gender-affirming care violate constitutional equal protection principles.

Looking to Precedent

Federal district courts have been applying the 2020 Supreme Court decision in Bostock v. Clayton County, which found the Civil Rights Act of 1964 protected gay or transgender employees against discrimination.

“Every single federal district court judge has said, ‘Bostock told us that discrimination against transgender people because they’re transgender is sex discrimination,’” said Shannon Minter, legal director of the National Center for Lesbian Rights.

The Sixth and Eleventh Circuits said Bostock doesn’t apply to the transgender care bans because it pertained to employment matters.

The two appeals courts also pointed to the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which held that there is no federal constitutional right to an abortion, as influencing their rulings on challengers’ due process and equal protection claims.

Both courts “relied on Dobbs to say that banning medical treatments for transgender people does not inherently trigger heightened scrutiny,” Redfield said.

The Sixth and Eleventh Circuits appeared to take a narrow historical view under Dobbs to interpreting fundamental parental liberty under the Fourteenth Amendment, said Linda C. McClain, a Boston University law professor whose specialties include gender and law.

“The Eleventh Circuit takes the formulation of a constitutional right of parents to ‘treat [one’s] children with transitioning medications subject to medically accepted standards’ from the lower court’s opinion, but then claims that this is not a fundamental right included in the right to control or direct the ‘care, custody, and control’ of one’s children because there is no deeply rooted history or tradition of this right,” McClain said.

The circuit courts have a narrower idea of proper parental rights compared with district courts, Steve Sanders, a constitutional law professor at Indiana University, said.

“The district courts were willing to take much more seriously the idea that parents have a fundamental right, to control the health care of their children,” Sanders said. “That question probably ultimately has to be settled by the Supreme Court.”

Parental Rights

But Sanders said he didn’t see a direct relationship between Dobbs and these cases, in part because the courts have struggled with the bounds of parental rights long before Dobbs.

“These courts aren’t saying parental rights don’t exist, or like abortion, they were just made up, and we’re getting rid of it,” Sanders said. “They are saying, ‘Yes, parental rights exist.’ But there are always some limits to those things.”

Minter said there’s zero precedent for the position that something could be sex discrimination under Title VII, but not be sex discrimination under the equal protection clause.

There are many decisions that have gone the opposite way, including the Sixth Circuit in its 2004 decision in Smith v. Salem, he said. In that case, the Sixth Circuit found a transgender woman had successfully pleaded a Title VII sex discrimination claim.

“The best way to understand these decisions is resistance to Bostock,” Minter said. “Many conservative judges didn’t like Bostock. It was a very conservative controversial decision in the conservative legal world, and there’s now clearly an effort to limit it and just disregard its applicability in contexts where it clearly does apply.”

Other observers see the dynamic differently.

Appeals court judges are not as willing as lower courts to issue expansive rulings on transgender rights, Sarah Parshall Perry, a senior legal fellow at the conservative Heritage Foundation, said.

“In the end, we want to make sure that our north star is the Constitution,” Perry said. “And we seem to find that more at the appellate level here, particularly so with these gender medicine bans for minors than we’re seeing at the trial court, the trial courts are willing to strike out in new constitutional directions.”

The case is Eknes-Tucker v. Gov. of Ala., 11th Cir., No. 22-11707, 8/21/23.