Kentucky and Tennessee Bans on Trans Care for Youth Upheld in Court

Kentucky and Tennessee can continue enforcing their bans on gender-affirming health care for transgender youth, the U.S. Court of Appeals for the Sixth Circuit ruled Thursday.

A three-judge panel of the court ruled 2-1 against granting a preliminary injunction, which would mean the bans couldn’t be enforced while lawsuits against them proceed.

There has been some back-and-forth in the cases. In the Tennessee suit, L.W. v. Skrmetti, the same three-judge panel ruled 2-1 in July to place a hold on a preliminary injunction that had been granted the previous month by Judge Eli Richardson of the U.S. District Court for the Middle District of Tennessee. The July ruling came in response to an emergency request filed by Tennessee officials. The appeals court granted that request but said it would give further consideration to the state’s appeal of the injunction by the end of September, hence the Thursday ruling.

In the Kentucky case, Doe v. Thornbury, Judge David Hale of the U.S. District Court for the Western District of Kentucky issued an injunction blocking the ban in June. But he lifted the injunction in July after the Sixth Circuit panel placed its hold on the Tennessee injunction. The Sixth Circuit judges subsequently turned down an emergency motion by the plaintiffs in the case — trans minors and their parents — to lift the stay on the injunction, but as in the Tennessee suit, the judges scheduled further consideration of the matter with a ruling due by the end of this month.

The Sixth Circuit covers Tennessee, Kentucky, Ohio, and Michigan. The circuit judges decided to consolidate the Tennessee and Kentucky cases.

“No one in these consolidated cases debates the existence of gender dysphoria or the distress caused by it,” Judges Jeffrey Sutton and Amul Thapar wrote in the majority ruling. “And no one doubts the value of providing psychological and related care to children facing it. The question is whether certain additional treatments — puberty blockers, hormone treatments, and surgeries — should be added to the mix of treatments available to those age 17 and under. As to that, we return to where we started. This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two. 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.

“For these reasons, we reverse the preliminary injunctions issued in these cases and remand them for further proceedings consistent with this decision.”

Judge Helene White, dissenting, 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 Sutton and Thapar had rejected. “As the majority notes, the heated political debate over gender-affirming care has yielded varying laws in Tennessee, Kentucky, and throughout our country,” she wrote. “In the normal course, the Constitution contemplates the states acting as laboratories of democracies to resolve the controversies of the day differently. … But when a fundamental right or freedom from discrimination is involved, experimentation has no place.”

“Tennessee’s and Kentucky’s laws tell minors and their parents that the minors cannot undergo medical care because of the accidents of their births and their failure to conform to how society believes boys and girls should look and live,” she continued. “The laws further deprive the parents — those whom we otherwise recognize as best suited to further their minor children’s interests — of their right to make medical decisions affecting their children in conjunction with their children and medical practitioners. For these reasons, I dissent.”

Republican Gov. Bill Lee signed Tennessee’s ban into law in March. In Kentucky, Gov. Andy Beshear, a Democrat, vetoed the ban, but the Republican-majority legislature overrode his veto in March.

In the Tennessee suit, the plaintiffs — families with trans children, plus a doctor — are represented by Lambda Legal, the American Civil Liberties Union, the ACLU of Tennessee, and the law firm of Akin Gump Strauss Hauer & Feld. They filed the suit in April. In the Kentucky suit, filed in May, seven trans youth and their families are represented by the ACLU of Kentucky, the National Center for Lesbian Rights, and the firm of Morgan, Lewis, and Bockius.

The legal groups are considering their next steps. They could appeal to have their cases heard by the full roster of Sixth Circuit judges, or they could go to the U.S. Supreme Court. It’s likely that the issue of gender-affirming care for youth will wind up in the Supreme Court at some point.

The lawyers in the Tennessee case issued this joint statement: “This is a devastating result for transgender youth and their families in Tennessee and across the region. The disastrous impact of Tennessee’s law and all others like it has already been felt in thousands of homes and communities. Denying transgender youth equality before the law and needlessly withholding the necessary medical care their families and their doctors know is right for them has caused and will continue to cause serious harm. We are assessing our next steps and will take further action in defense of our clients and the constitutional rights of transgender people in Tennessee and across the country.”

In a news release on the Kentucky case, ACLU of Kentucky Legal Director Corey Shapiro said, “Transgender youth in Kentucky and their families should be the only people making private decisions about their health care. We’re disappointed with the court’s ruling. The majority ignored the extensive evidence from the actual medical experts and the trial court who all agreed that this care is medically necessary, effective, and appropriate. While it is disheartening that the panel believes it is constitutional for the government to prohibit transgender youth from accessing such necessary health care, this is only a temporary setback. We will continue fighting to restore that care permanently in the commonwealth."

NCLR Legal Director Shannon Minter added, “Today’s decision is disappointing and difficult to square with Supreme Court and Sixth Circuit cases holding that parents have both a duty and a right to safeguard their children’s health. This is a serious blow to one of the most cherished principles of our legal system, which is that parents, not government officials, should make medical decisions for their children.”

Federal district courts in Alabama, Arkansas, Florida, and Indiana 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 is appealing. 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.

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.