Trans Youths Denied Access to Affirming Care in Sixth Circuit

Kentucky and Tennessee can enforce bans on gender-affirming care for transgender minors until questions over the laws’ constitutionality are resolved, the Sixth Circuit said Thursday.

The US Court of Appeals for the Sixth Circuit reversed a preliminary injunction that had stopped the states’ from barring doctors from treating youths’ gender dysphoria with puberty-blocking drugs and cross-sex hormones. The court previously had stayed the orders during the appeal.

The minors aren’t likely to succeed on their claim that the Kentucky and Tennessee laws violate their 14th Amendment equal protection rights because the bans don’t discriminate based on sex, Judge Jeffrey S. Sutton said. Judge Amul R. Thapar joined the opinion.

“Under each law, no minor may receive puberty blockers or hormones or surgery in order to transition from one sex to another,” the court said. “Such an across-the-board regulation lacks any of the hallmarks of sex discrimination. It does not prefer one sex over the other.”

The majority said that “no one in these consolidated cases debates the existence of gender dysphoria or the distress caused by it,” but it called gender dysphoria “a relatively new diagnosis with ever-shifting approaches to care over the last decade or two.”

“Under these circumstances, is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments,” it said. “That is precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should 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 challenges.”

Judge Helene N. White dissented, saying, “The statutes we consider today discriminate based on sex and gender conformity and intrude on the well-established province of parents to make medical decisions for their minor children.”

About 22 states ban some form of gender-affirming care for minors. Federal district court judges unanimously said the laws likely violate minors’ equal protection rights under the US Constitution, but this is the second federal appeals court to say the lower courts’ orders must be vacated.

The Eleventh Circuit ordered Alabama’s ban lifted in August, but the decision isn’t final because the plaintiffs filed a petition for en banc review, and a judge ordered withholding the mandate. A petition for full court review also is pending in the Eighth Circuit, where Arkansas has taken an appeal from a decision permanently enjoining its ban.

The Sixth Circuit heard oral arguments on the preliminary injunction appeals Sept. 1.

The American Civil Liberties Union Foundation, Lambda Legal Defense & Education Fund Inc., Akin Gump Strauss Hauer & Feld LLP, and ACLU of Tennessee represent the Tennessee plaintiffs. American Civil Liberties Union of Kentucky Foundation; Morgan, Lewis & Bockius LLP, and the National Center for Lesbian Rights represent the Kentucky plaintiffs. The US Justice Department represents the US as an intervenor.

The Kentucky and Tennessee Attorney General’s Offices represent the states. Consovoy McCarthy PLLC and Lawfair LLC also represent Tennessee.

The cases are L.W. v. Skrmetti, 6th Cir., No. 23-5600, 9/28/23 and Doe v. Thornbury, 6th Cir., No. 23-5609, 9/28/23.