6th Circuit Allows Tennessee’s Ban on Gender-Affirming Care for Minors

July 10, 2023 by Jacquelyn Burrer
6th Circuit Allows Tennessee’s Ban on Gender-Affirming Care for Minors
FILE - Advocates gather for a rally at the state Capitol complex in Nashville, Tenn., to oppose a series of bills that target the LGBTQ community, Tuesday, Feb. 14, 2023. (AP Photo/Jonathan Mattise, File)

WASHINGTON — The 6th U.S. Circuit Court of Appeals ruled Saturday that a Tennessee law banning doctors from providing gender-affirming care for minors could go into effect immediately.

The 2-1 decision is considered groundbreaking because it marks the first time a federal court has allowed a ban of this kind to take place. 

Prior to the legal challenge, the law had originally been scheduled to go into effect on July 1. 

The litigation began in March 2023 after state lawmakers approved and Gov. Bill Lee signed a bill intended to prohibit health providers from giving gender-affirming care for minors, including any kind of gender-affirming surgery or hormonal drug therapy. 

The law prohibits any procedure that would “enable a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or treat purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”

A group of transgender minors, their parents and a doctor filed a lawsuit against multiple state officials, asserting the law violated the equal protection and due process clauses under the Constitution and moved for a preliminary injunction. 

The district court determined the law did violate the challengers’ rights and partially enjoined the section relating to hormones and puberty blockers, which led Tennessee to appeal for an emergency stay of the district court’s decision. 

“Both sides have the same fear, just in opposite directions — one saying the procedures create health risks that cannot be undone, the other saying the absence of such procedures creates risks that cannot be undone,” wrote Chief Judge Jeffrey Sutton, the author of the opinion of the court. “What makes it bearable to choose between the two sides is the realization that not every choice is for judges to make.”

Sutton acknowledges the various district courts in other states, such as Arkansas and Alabama, who have struck down proposed bans on gender-affirming care in their states, but Sutton believes their perspectives, “do not eliminate our doubts about the ultimate strength of the challengers’ claims.”

In dissent, Judge Helene White argues the Tennessee law is unconstitutional based on the plaintiffs’ argument of sex discrimination, but states she would narrow the scope. 

“Applying this standard, I fail to see how the state can justify denying access to hormone therapies for treatment of minor plaintiffs’ gender dysphoria while permitting access to others, especially in light of the district court’s robust factual findings on the benefits of these treatments for transgender youth.” 

In response to the weekend ruling, Tennessee Attorney General Jonathan Skrmetti announced in a written statement that “the case is far from over, but this is a big win.”

He continued, “The court of appeals lifted the injunction, meaning the law can be fully enforced, and recognized that Tennessee is likely to win the constitutional argument and the case.”

Tennessee’s law is part of a growing series of efforts by Republican state lawmakers to impose new restrictions on medical care for transgender youths

Federal judges have blocked five laws similar to Tennessee’s from taking effect. Those judges found the laws violated the Constitution’s guarantee of equal protection under the law.

“Even when accompanied by judicial tiers of scrutiny, the U.S. Constitution does not offer a principled way to judge each of these lines — and still others to boot,” Sutton wrote. “Instead of the vigorous, sometimes frustrating, ‘arena of public debate and legislative action’ across the country, and instead of other options provided by 50 governors and 50 state courts, we would look to one judiciary to sort it all out.

“That is not how a constitutional democracy is supposed to work — or at least works best — when confronting evolving social norms and innovative medical options,” Sutton concluded.

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