The US Court of Appeals for the Sixth Circuit ruled Thursday to allow Tennessee and Kentucky to enforce bans on gender-affirming care for minors. In a 2-1 vote, the court dismissed a challenge brought by families of transgender minors, holding that the bans did not discriminate on the basis of sex.
The bans at issue, Tenn. Code. Ann. § 68-33-101 and Ky. Rev. Stat. Ann. § 311.372, prohibit medical providers from administering hormone therapy, puberty blockers, and procedures for the purpose of alleviating gender dysphoria. In their complaints for injunctive relief, the plaintiffs in Tennessee and Kentucky alleged that the bans are unconstitutional under the FourteenthAmendment of the US Constitution and “will cause severe and irreparable harm.” However, the court disagreed, finding that the right to gender-affirming care is not constitutionally protected.
First, it rejected any violation of the Fourteenth Amendment’s Due Process Clause, reasoning that there is no “deeply rooted” tradition of impeding the government’s ability to regulate medicine, particularly on the behalf of children. The court dismissed the plaintiffs’ argument that parents have a right to make medical decisions for their children. Instead they found that while this is true to an extent, parents do not have a right to do so where it violates “democratically enacted laws.”
Second, the court rejected any violation of the Fourteenth Amendment’s Equal Protection Clause, reasoning that the bans “treat similarly situated individuals evenhandedly,” whether they classify on the basis of age, sex or medical condition. The court further dismissed the argument that transgender status qualifies as a suspect class, noting that “the bar for recognizing a new suspect class is a high one.”
Ultimately, the court found that the bans do not violate constitutional rights and reiterated its hesitancy about the safety of gender-affirming care. The opinion reads:
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.
In response to Thursday’s decision, the ACLU of Tennessee and the ACLU of Kentucky released statements expressing disappointment and disagreement. The decision makes the Sixth Circuit the second federal appeals court to uphold a state ban on gender-affirming care for minors. In August, the Eleventh Circuit upheld a similar ban in Alabama. Conversely, district courts in Arkansas, Texas, and Georgia, as well as a state court in Montana have blocked similar bans.