Constitutional Law

6th Circuit panel believes law banning transgender care for minors is likely constitutional

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Doctor withholding medical care

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A federal appeals court on Saturday allowed Tennessee to enforce a law that bans gender-affirming surgeries, puberty blockers and hormones for transgender minors.

Acting on an emergency request, the Cincinnati-based 6th U.S. Circuit Court of Appeals said the law is likely constitutional and stayed a federal judge’s injunction pending appeal. But the appeals court acknowledged “we may be wrong” and expedited the appeal.

The case is the first to allow a ban on gender-affirming care to take effect, according to the American Civil Liberties Union. Courts have blocked similar laws in Arkansas, Alabama, Florida, Indiana and Kentucky.

The plaintiffs in the Tennessee case were three transgender minors, their parents and a doctor. The ruling lifts a June stay imposed by U.S. District Judge Eli Richardson of the Middle District of Tennessee. He had found the law violates parents’ fundamental right under the due process clause to direct the medical care of their children and violates the equal protection clause because it discriminates on the basis of sex.

Chief Judge Jeffrey S. Sutton wrote the majority opinion for the 6th Circuit, joined by Judge Amul R. Thapar.

A partial dissenter, Senior Judge Helene N. White, said she believed the law likely violates the equal protection clause. White agreed with the majority, however, that a statewide injunction was too broad and said it should have been granted only to the plaintiffs and the Vanderbilt University Medical Center.

Richardson had blocked the ban on hormones and puberty blockers, but he did not rule on the surgery ban after concluding the plaintiffs did not have standing on that issue. The law has an exception that allows continuation of existing treatments through March 2024.

Sutton said plaintiffs in the case were trying to extend the constitutional guarantees “to new territory.”

“There is nothing wrong with that, to be sure,” Sutton wrote. “But it does suggest that the key premise of a preliminary injunction—likelihood of success on the merits—is missing. The burden of establishing an imperative for constitutionalizing new areas of American life is not—and should not be—a light one, particularly when ‘the states are currently engaged in serious, thoughtful’ debates about the issue.’”

Sutton said federal judges “should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field.”

On the due process claim, Sutton said parents do have a due process right to direct the care, custody and control of their children. But no Supreme Court case extends that right to a right to receive new medical or experimental drug treatments.

Gender-affirming treatment often uses FDA-approved drugs for off-label uses, Sutton said.

On the equal protection issue, the plaintiffs argued that courts should use heightened scrutiny to evaluate the law because it discriminates on the basis of sex. Sutton disagreed, saying the law bans the treatment for all minors “regardless of their biological birth with male or female sex organs.”

He also rejected an argument that a higher scrutiny is required because the law violates the rights of transgender minors, a quasi-suspect class. “Neither the Supreme Court nor this court has recognized transgender status as a quasi-suspect class,” Sutton wrote.

That would mean the law should be evaluated using a rational basis test, which does not favor the plaintiffs, Sutton said. “Tennessee could rationally take the side of caution before permitting irreversible medical treatments of its children,” he wrote.

Sutton also remarked on the reach of the federal judge’s injunction, which applied throughout Tennessee. A “rising chorus” suggests a single federal judge should be able to grant injunctions reaching only the plaintiffs, he said.

The case is L.W. v. Skrmetti.

The Associated Press has coverage of the July 8 decision, which was also noted by the Volokh Conspiracy (here and here) and How Appealing.

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