Is This the Next Supreme Court Case on LGBTQ+ Rights?

A federal appeals court has blocked an injunction against Tennessee’s ban on gender-affirming care for trans youth, allowing the ban to go into effect and setting up a possible Supreme Court case.

The U.S. Court of Appeals for the Sixth Circuit Saturday granted the state’s request for an emergency order placing a hold on the injunction while it is appealed. The three-judge panel said the state is likely to succeed in its appeal. In June, the U.S. District Court for the Middle District of Tennessee issued an injunction keeping most provisions of the law from taking effect while a suit against it, L.W. v. Skrmetti, is heard. Chief Judge Jeffrey Sutton wrote the opinion, in which he cited last year’s anti-abortion Supreme Court ruling, Dobbs v. Jackson Women’s Health Organization.

Federal district courts in Alabama, Arkansas, Florida, Indiana, and Kentucky have also 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 plans to appeal. In Oklahoma, the ACLU and its state affiliate reached an agreement with the Oklahoma attorney general that the state’s ban would not be enforced while a lawsuit proceeds. But this is the first case in which a federal court has allowed a ban to take effect.

“Sutton’s decision to reinstate Tennessee’s anti-trans law is temporary, and he ends his opinion by saying his court will reconsider this question ‘with the goal of resolving it no later than September 30, 2023,’” legal analyst Ian Millhiser notes at Vox.“So it is possible that the Sixth Circuit will reconsider and join the other courts that have blocked bans on transgender health care.”

But it is more likely, Millhiser writes, that the Sixth Circuit will stick to the original position, setting up a conflict among federal courts. And when there is a conflict, especially among appellate courts, the Supreme Court is usually willing to take cases to resolve it. With the high court’s 6-3 conservative dominance, that doesn’t bode well for trans Americans.

The lawyers who brought the suit on behalf of Tennessee families with trans children as well as a doctor expressed disappointment at the appeals court’s action but said they will continue the fight.

“This ruling is beyond disappointing and a heartbreaking development for thousands of transgender youth, their doctors, and their families. As we and our clients consider our next steps, we want all the transgender youth of Tennessee to know this fight is far from over and we will continue to challenge this law until it is permanently defeated and Tennessee is made a safer place to raise every family,” said a joint statement from the American Civil Liberties Union, the ACLU of Tennessee, Lambda Legal, and the law firm of Akin Gump Strauss Hauer & Feld LLP.