Kentucky Families Ask Supreme Court to Review Gender-Affirming Care Ban

Lawyers for Kentucky families with transgender children have asked the U.S. Supreme Court to review an appeals court ruling that allowed the state to enforce its law against gender-affirming care for trans youth.

The petition, submitted Friday, follows a similar filing by lawyers for families and medical providers in Tennessee. In September, the U.S. Court of Appeals for the Sixth Circuit ruled that both states can enforce their bans on gender-affirming procedures for trans minors, lifting preliminary injunctions that that had been granted by trial courts. These are the first appeals to the Supreme Court on the issue.

Kentucky passed its ban in May, overriding a veto by Democratic Gov. Andy Beshear. Seven transgender young people and their families sued to challenge it, and they are represented by the American Civil Liberties Union of Kentucky, the National Center for Lesbian Rights, and the law firms of Morgan, Lewis, and Bockius LLP and Jenner & Block LLP.

“This sort of extreme political interference in the doctor-patient relationship has no place in the exam room,” Corey Shapiro, legal director for the ACLU of Kentucky, said in a press release. “We are asking the Supreme Court to reverse the Sixth Circuit’s decision so that our clients can continue receiving the necessary, effective health care recommended by their physicians and supported by their parents. It’s time to stop criminalizing health care, interfering with personal decisions, and substituting political agendas for the expertise of health care professionals.”

“The Sixth Circuit’s decision gives the government essentially unchecked power to prevent parents from making medical decisions for their children,” added Shannon Minter, legal director for NCLR. “This type of government overreach is dangerous and out of step with the limits our Constitution places on the ability of government officials to interfere with families and impose their own values on parents and young people.”

In asserting that Kentucky and Tennessee could continue to enforce their bans, a three-judge panel of the Sixth Circuit called gender dysphoria “a relatively new diagnosis with ever-shifting approaches to care over the last decade or two.” The judges in the majority continued, “Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments. 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.”

The dissenting judge, Helene White, wrote that “gender-affirming care is well accepted as treatment for gender dysphoria” and that the Tennessee and Kentucky laws interfere with parents’ rights to direct their children’s medical treatment. She also said the laws constitute illegal sex discrimination, an assertion that her two colleagues had rejected.

In their filing with the Supreme Court, the lawyers for the Kentucky families wrote, “This extraordinary law puts young people in Kentucky at well-documented risks of depression, anxiety, and in some cases, suicidality. It usurps parents’ traditional authority over important decisions regarding their children’s health. It singles out transgender minors, a historically powerless, misunderstood, and vulnerable group.”

Several trial courts have ruled against bans on gender-affirming care, the attorneys noted. Although the petition for Supreme Court review comes at the preliminary injunction stage, they added, “The arguments on both sides of this issue have been fully ventilated in the lower courts, and this Court has all it needs to decide the constitutionality of the Treatment Ban.”

Twenty-two states have banned some or all gender-affirming care for trans youth. Federal district courts in Alabama, Arkansas, Florida, and Indiana have issued injunctions against bans on gender-affirming care, and the court in Arkansas has gone a step further by striking down that state’s law, the first ruling on such a law’s merits. The Arkansas attorney general is appealing.

However, in the Alabama case, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit has lifted the injunction, allowing the law to be enforced. The plaintiffs have asked the full court to review the decision. Since the 11th Circuit also includes Georgia, a federal district judge in that state has lifted her injunction against its gender-affirming care restrictions because of the circuit's ruling.