Gender-Affirming Care Ruling Could Force Supreme Court Reckoning

A Sixth Circuit decision that allows Tennessee and Kentucky to enforce gender-affirming care bans for minors elevates the simmering tensions over transgender rights to a new level and may force the US Supreme Court to weigh in.

The appeals court’s ruling on laws that prohibit doctors from using puberty-blocking drugs, cross-sex hormones, and surgeries to treat gender dysphoria in people under 18 “creates or deepens a number of circuit splits on a variety of transgender rights issues,” said Katie Eyer, a Rutgers Law School professor and a leading expert on LGBTQ+ employment rights, social movements, and constitutional law.

The nation’s top court hasn’t seemed eager to step in on these suits, and the Tennessee and Kentucky plaintiffs in these consolidated cases may not seek review, but the ruling “makes it more likely” that the Supreme Court will take up these transgender rights issues fairly soon, Eyer said Friday.

Sarah Parshall Perry, a senior legal fellow at the right-leaning Heritage Foundation, told Bloomberg Law Friday that she’d be “shocked” if the Supreme Court doesn’t consider the issues brought up in the Sixth Circuit case “in short order.”

The cases challenging state bans on gender-affirming care for minors “are moving through the courts so quickly,” that timely top court review is necessary, Perry said. It’s likely that there will be an application for emergency review filed in the Supreme Court, most probably in the Sixth Circuit case, she said.

It’s also a good bet the justices will grant review of the case if they ask for additional briefing after receiving the application, especially since the Biden administration has weighed in on the side of the plaintiffs, Perry added.

She was less certain that the justices will look beyond the gender-affirming care bans to address cases involving such discrete issues as school policies, transgender athletes, and state employee health plans that exclude payment for transgender care. Those cases usually pose civil rights questions under laws like Title IX and Title VII that are beyond the scope of the Sixth Circuit’s equal protection analysis, she said.

No Sex Discrimination

The US Court of Appeals for the Sixth Circuit reversed two lower courts’ preliminary injunctions that had blocked the states from enforcing the laws, saying that the minors aren’t likely to succeed on their claim that the provisions violate their 14th Amendment equal protection rights because the bans don’t discriminate based on sex.

“Under each law, no minor may receive puberty blockers or hormones or surgery in order to transition from one sex to another,” Jeffrey S. Sutton said in an opinion joined by Judge Amul R. Thapar. “It does not prefer one sex over the other,” Sutton wrote.

Absent a sex-based classification, the states had to show only that they had good reasons for enacting the laws, Sutton said. They did so, he said.

Judge Helene N. White dissented, saying that the laws discriminate on the basis of sex and gender conformity.

Analysis Consistent

Sutton’s analysis was consistent with recent Supreme Court decisions, including Dobbs v. Jackson Women’s Health Organization, that encourage courts to exercise caution when being asked to extend constitutional protections, Perry said. Like the abortion question in Dobbs, this is an issue best left to state lawmakers, she said.

The top court has never held that transgender people are quasi-suspect class for purposes of applying a heightened standard of review, Perry said. It’s also been “very wary” of defining new substantive due process rights, such as a parent’s right to direct a child’s medical care in an area where there’s debate over the safety and efficacy of the care, she said.

These types of substantive due process rights exist only if deeply rooted in the US’ history and tradition, she said.

Quinn Yeargain, an expert in constitutional law who teaches at Widener University Commonwealth Law School in Harrisburg, Pa., agreed that the Sixth Circuit got the answer on this question right, though they otherwise found the opinion “deeply discomforting.”

Decision Goes Too Far

Sutton went too far when he observed that the states are engaged in thoughtful debates and that there’s no proof that animus toward transgender people drove the laws, Yeargain said. These “conclusions that stand diametrically opposed to the violently transphobic rhetoric that policymakers have used when enacting these laws,” they said.

“The opinion whitewashes the fact that state legislatures around the country are trying to forcibly erase trans people’s existence by targeting the therapies and medications that many trans people rely on to feel comfortable in their bodies,” Yeargain said Friday.

Twenty-two states have laws banning some form of gender-affirming care for minors. These laws prevent people from transitioning and effectively force involuntary detransitioning, Yeargain said.

“It’s a violent, harmful act—not one that reflects a good-faith engagement in a thoughtful debate,” they said.

Misapplication of Doctrine

The opinion is also questionable from a legal standpoint, Eyer said. “The majority fundamentally misapplies the law of both the Sixth Circuit and the Supreme Court on how equal protection doctrine operates,” she said.

The Tennessee and Kentucky laws facially classify people based on sex, and the court should have viewed them through a more restrictive intermediate or heightened scrutiny lens, Eyer said.

The Sixth Circuit also “fundamentally misapprehends” when a group should be deemed a suspect or quasi-suspect class, and misapplied the factors traditionally used by the Supreme Court when deciding that issue, Eyer said.

The transgender community faces “extensive public discrimination” and is precisely the type of group that should be afforded skeptical review when they are targeted by state legislation, Eyer said.

Federal trial judges, including Trump-appointed judges in Alabama and Tennessee, have uniformly blocked enforcement of these bans. But plaintiffs haven’t been as successful on appeal, given the rulings both here and by the Eleventh Circuit, lifting an injunction against Alabama’s enforcement of its law.

The rulings conflict with a decision by the Eighth Circuit, which upheld a preliminary injunction against Arkansas’ first-in-the-nation gender-affirming care ban.

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; Doe v. Thornbury, 6th Cir., No. 23-5609, 9/28/23.