CINCINNATI (CN) — Potentially irrevocable changes from relatively new treatments for people diagnosed with gender dysphoria give states a legitimate reason to ban medical interventions for minors, the Sixth Circuit said in a split decision.
Published late Thursday night and less than a month after arguments in a pair of cases, the opinion gives Kentucky and Tennessee the go-ahead to enforce laws decried as anti-trans by families and Democratic legislators.
Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, wrote the panel's lead opinion and expressed skepticism from the outset that the judiciary should weigh in on matters typically reserved for the legislature.
"Life-tenured 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 Constitution to occupy the field," he said.
Senate Bill 150 and Senate Bill 1, part of sweeping health care legislation, were enshrined into law in March 2023 in Kentucky and Tennessee, respectively. They ban certain medical procedures that would "enable a minor to identify with, or live as, a purported identity inconsistent with the minor's sex."
Lawsuits from families with transgender children followed swiftly in each state, and ultimately two federal judges granted the plaintiffs' preliminary injunction motions.
The Sixth Circuit's decision to vacate the injunctions means the bans may now be enforced.
Sutton pointed out at least 19 states have laws similar to the ones before the court and emphasized more debate, not injunctions against enforcement, will lead to equitable outcomes.
"Prohibiting citizens and legislatures from offering their perspectives on high-stakes medical policies, in which compassion for the child points in both directions, is not something life-tenured federal judges should do without a clear warrant in the Constitution," he concluded.
Corey Shapiro, legal director for the ACLU of Kentucky, expressed the organization's disappointment with the decision in a statement.
"Transgender youth in Kentucky and their families should be the only people making private decisions about their health care," he said. "We’re disappointed with the court’s ruling. The majority ignored the extensive evidence from the actual medical experts and the trial court who all agreed that this care is medically necessary, effective, and appropriate."
Tennessee Attorney General Jonathan Skrmetti echoed Sutton's reasoning in a statement and said decisions about medical treatment for minors should be left to the workings of democracy.
"This is a big win for democracy," he said. "Decisions that are not clearly resolved by the Constitution should be resolved by the people through their elected representatives. I am so proud of our team who stood strong against the overwhelming resources arrayed against Tennessee in this case."
Kentucky Attorney General Daniel Cameron, the Republican candidate for governor, expressed similar sentiments and also took a shot at his rival, incumbent Governor Andy Beshear, a Democrat.
"These gender interventions, billed as medical care, cause permanent harm to vulnerable children and their health,” Cameron said in a statement. “Despite full-throated denials by Governor Beshear and his far-left activists, our children would still be under attack without SB 150. Andy Beshear won’t protect our kids, but I will, and I am proud to carry the mantle for this important law."
In his opinion, Sutton cited the 1993 U.S. Supreme Court case Heller v. Doe and the 2006 Sixth Circuit case Kottmyer v. Maas as historical examples of state and federal governments' regulation of the medical profession that comport with due process and the Fourteenth Amendment.
The parents who brought the current suits argued their right to make decisions about medical treatments for their children superseded any interest of the state governments, but Sutton disagreed.
"If parents could veto legislative and regulatory policies about drugs and surgeries permitted for children," he said, "every such regulation — there must be thousands — would come with a springing easement: it would be good law until one parent in the country opposed it."
While the parents and their attorneys argued treatments covered by the laws are not experimental, Sutton found the point irrelevant and concluded governments can ban "even longstanding and nonexperimental treatments" so long as they act "reasonably."
During arguments earlier this month, attorneys for the transgender minors pointed out the early stages of puberty are crucial to their healthy development, which necessitates treatments while they are under 18.
Sutton acknowledged the point but ultimately concluded risks on either side allow the states' governments to err on the side of caution.
"Changing the sex characteristics of a child's body, in short, carries material risks in either direction," he said. "States may reasonably exercise caution in these circumstances, with some states focusing on the near-term risk of increasing the symptoms of gender dysphoria and other states focusing on the irreversible risks of providing such care to a minor."
The lead opinion also chided the federal courts for the "sweeping" nature of their injunctions, which invalidated the laws not only as applied to the plaintiffs, but to all citizens of both Kentucky and Tennessee.
To obtain such relief, according to Sutton, "plaintiffs must rule out every potentially valid application, say with respect to individuals too young to consent to a regimen of hormone treatments," a standard he said they have not met.
"This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two," he concluded. "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."
Sutton continued: "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."
Senior U.S. Circuit Judge Helene White, another Bush appointee, dissented from the majority and expressed her feelings bluntly at the outset of her opinion.
"The statutes we consider today discriminate based on sex and gender conformity and intrude on the well-established province of parents to make medical decisions for their minor children," she said.
White cited medical evidence that only a tiny fraction of individuals who undergo hormone therapy treatments — about 1% — regret their decision and emphasized the plaintiffs in the current suits "benefitted tremendously" from treatments the states wish to ban.
She concluded the "express references" to a patient's sex and gender conformity found in each law represent clear classifications based on sex and render them discriminatory and unconstitutional.
"Tennessee's and Kentucky's laws tell minors and their parents that the minors cannot undergo medical care because of the accidents of their births and their failure to conform to how society believes boys and girls should look and live," she said. "The laws further deprive the parents ... of their right to make medical decisions affecting their children in conjunction with their children and medical practitioners."
U.S. Circuit Judge Amul Thapar also sat on the panel and concurred with Sutton's lead opinion.
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