Arguments in Tenn., Ky. bans on minors' "trans care" hinge on key appeals court judge

The Sixth Circuit is expected to rule by the end of the month, and Chief Judge Jeff Sutton's vote is likely
key. Also: Georgia's similar ban is back in effect for now.

by CHRIS GEIDNER, Law Dork, SEP 5, 2023- As September gets underway, bans on hormone therapy for transgender minors remain enforceable in Tennessee and Kentucky, the result of a July order from the U.S. Court of Appeals for the Sixth Circuit — an order that Chief Judge Jeff Sutton acknowledged “may be wrong.”

On Sept. 1, heading into the holiday weekend, the same three-judge panel that issued that 2-1 split decision order in July held oral arguments over the constitutionality of the two states’ bans on gender-affirming medical care for minors. The puberty blocker and hormone ban provisions of both laws had been preliminarily enjoined in June by district court judges hearing independent cases challenging each ban. The Sept. 1 arguments were over those preliminary injunctions. 

... The primary question before the court is the same as it has been throughout these challenges over the past two years: Do these bans violate the Fourteenth Amendment’s Equal Protection Clause, either by discriminating on the basis of sex or transgender status, or its Due Process Clause, by restricting parental rights?

Every federal district court judge to consider the question has held that the bans are unconstitutional or likely unconstitutional, depending on the procedural posture of the case, on at least one of those grounds. One federal appeals court — the U.S. Court of Appeals for the Eighth Circuit — has agreed, and another — the U.S. Court of Appeals for the Eleventh Circuit — ruled in late August against the challengers to Alabama’s ban.  (read more)

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California leads 20 state coalition to block Tennessee's ban on gender transition medical treatment of minors.

By Kenneth Schrupp, The Center Square, Aug 14, 2023 - California attorney general Rob Bonta is leading a coalition of 20 states opposing what they describe as "anti-transgender" laws in Tennessee and Kentucky blocking children from undergoing medical procedures that are given to enable minors to live with a gender identity different than that noted on their birth certificate, such as puberty blocking hormones and gender change surgeries. 

In their amicus brief supporting the plaintiffs in L.W. v Skrmetti, a case combining lawsuits against Tennessee's SB 1 and Kentucky’s SB 150, the coalition wrote, the laws preventing hormone access to minors “single out transgender minors for discriminatory treatment.” 

“Gender-affirming care is safe, medically accepted, and empowers transgender people to lead healthier, happier lives,” said Attorney General Bonta. "Blocking access to gender-affirming care only serves to marginalize already vulnerable people and put their lives at risk. Kentucky and Tennessee's laws are part of a growing assault on LGBTQ+ rights nationwide, driven by ignorance, bigotry, and partisan politics." 

While a federal district judge issued a preliminary injunction against SB 1 due to potential violation of the Constitution’s Equal Protection and Due Process Clauses, the injunction maintained SB 1’s ban on gender surgeries for minors. Just a week later, a panel of the Sixth Circuit Court of Appeals lifted the preliminary injunction, noting the exceptions for continuing care of pre-existing minor patients and those with congenital defects, precocious puberty, disease, or physical injury. The case, combined with a similar case challenging a similar law in Kentucky, now faces the Sixth Circuit Court of Appeals. 

The Bonta-led coalition, which includes Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington argues restricting transgender people's access to gender-changing medical procedures significantly harms transgender teenagers. In support of this, they cite a 2020 study finding teenagers seeking “gender-affirming treatment at later stages of puberty are five times more likely to be diagnosed with depression and four times more likely to have anxiety disorders than adolescents who seek treatment in early puberty.

Meanwhile, lawyers supporting the ban echo the Tennessee Senate’s official findings that some treatments for gender dysphoria “can lead to the minor becoming irreversibly sterile, having increased risk of disease and illness, or suffering adverse and sometimes fatal psychological consequences,” continue to cite lack of scientific evidence supporting the efficacy and safety of gender-changing medical procedures, and growing evidence of potential harm for children in their defense.

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To read Tennessee's law passed as Senate Bill 1 follow the link. 

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