Sixth Circuit Upholds State Bans on Gender-Affirming Care for Minors
States are divided on the issue of allowing gender-affirming care for minors. At least 21 states currently restrict or outright ban it; at least 14 others provide protections for those who seek it. The courts have been drawn into the controversy.
On September 28, 2023, in a split decision, a panel of the Sixth Circuit Court of Appeals ruled that gender-affirming care for minors can be banned by the states. In an opinion authored by Chief Judge Jeffrey S. Sutton, joined by Judge Amul R. Thapar, the court reversed injunctions on Tennessee and Kentucky statutes that restricted “certain sex-transition treatments for minors experiencing gender dysphoria."
Chances are good that at some point the Supreme Court will take a look at the issue, so let's take a look at the facts of the cases, the majority opinion, and the dissent. Join us in the legal weeds.
On March 2, 2023, Tennessee enacted the “Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity." Under the Tennessee statute, subject to certain exceptions, healthcare providers are prohibited from prescribing certain therapies to gender-dysphoric minors, such as puberty blockers or hormone therapy. They are also banned from performing reassignment surgeries on minors.
Three transgender minors and other plaintiffs sued, claiming that the Tennessee law violated their due process and equal protection rights. The district court largely agreed with them and preliminarily enjoined various Tennessee officials from enforcing the statute. Tennessee appealed. The Sixth Circuit stayed the district court's ruling pending the appeal.
On March 29, 2023, the Kentucky legislature overrode the governor's veto of “An Act Relating to Children." Under the Kentucky Act, a healthcare provider, subject to certain exceptions, cannot prescribe puberty blockers or hormones to gender-dysphoric minors or perform reassignment surgeries on them.
Seven transgender minors and their parents sued, claiming that the Kentucky statute violated due process and equal protection. The district court agreed and issued the injunction. The district court granted Kentucky's request for a stay of the injunction while it appealed.
To sum up, both Tennessee and Kentucky's laws remained in effect until the Sixth Circuit Court of Appeals could issue a decision.
The Majority Opinion
The Sixth Circuit majority's opinion opens with a discussion about gender dysphoria generally and the evolving standard of care for treating it. The court notes that gender-affirming care, as it became to be known, began to be available to minors in some parts of the world at the turn of the millennium. Today, professional guidelines permit the use of puberty blockers or cross-sex hormones “from the early stages of pubertal development."
After analyzing this history, the Court turned to the legal arguments. To affirm a preliminary injunction, a court must find, among other requirements, that the plaintiffs showed “a likelihood of success on the merits." As to that essential element, the majority concluded the plaintiffs failed to make that showing.
The plaintiffs' first argument was that the due process vests parents with a fundamental right to determine what medical care was appropriate for their children, and that the Tennessee and Kentucky statutes infringed on this right. Tennessee and Kentucky responded that this right, if it exists, is not unfettered and that they have a compelling interest in protecting children.
The majority agreed with the states. It noted that substantive due process rights arise from norms “deeply rooted in this Nation's history and tradition." The court wrote that the country does not have a “deeply rooted" history in preventing governments from regulating the medical profession generally or certain treatments in particular, whether for adults or children. It rejected the parents' rights argument, ruling that parents do not have a right to reasonably banned medical treatment for their children.
The majority then turned to equal protection. The plaintiffs argued that the Tennessee and Kentucky laws create age-based and sex-based classifications that can only be sustained if they survive strict scrutiny. The states responded that their laws treated similarly situated minors evenhandedly.
Again, the majority agreed with the states. As to age, it said that there was nothing unusual, let alone unreasonable, about states treating adults and children differently. As to sex, the court found that the statutes regulated sex-transition therapies for all minors, regardless of sex. The court concluded that heightened scrutiny was not warranted and that the states' laws reasonably related to legitimate government interests.
In a rigorous dissent, Judge Helene White found that the laws infringed a parent's fundamental right to make medical care decisions for their kids. She also believed that they discriminate on the basis of sex and gender conformity. In so concluding, she noted that virtually all professional organizations endorse physical intervention for gender-dysphoric minors and that the states, by ignoring these experts, were being irrational.
She also construed the Supreme Court's recent decision in Bostock v. Clayton County as holding that gender identity was a protected class under the Constitution and that the Tennessee and Kentucky laws illegally discriminated against transgender individuals. She would have applied heightened scrutiny and struck both statutes down.
No Circuit Split — Yet
This is the second federal appellate court to uphold state restrictions on gender-affirming care for minors. On August 23, 2023, the Eleventh Circuit Court of Appeals vacated an injunction on a similar Alabama statute. If a federal appellate court reaches the opposite conclusion, the Supreme Court may step in to resolve the dispute. For now, however, each state can ban or protect gender-affirming care as state legislators see fit.
- State Laws on Gender-Affirming Care (FindLaw's Learn About the Law)
- Transgender Student Rights: The Basics (FindLaw's Learn About the Law)
- LGBTQ+ Legal Resource Hub
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.