CINCINNATI — On Thursday, the American Civil Liberties Union and Tennessee Attorney General Jonathan Skrmetti said a federal appeals court formally allowed a Tennessee law effectively banning types of gender-affirming care for transgender youth to go into effect. It also upheld a similar Kentucky law.
The ACLU, Lambda Legal and Akin Gump Strauss Hauer and Feld LLP sued the state in April to block the law. It makes it illegal for providers to provide care so a minor could "identify with, or live as, a purported identity inconsistent" with their gender assigned at birth.
It prevents transgender youth from getting care in the state to affirm their gender and treat gender dysphoria. The Tennessee law says transgender youth who started treatment before July 1 in the state will need to stop by March 31, 2024. Kentucky passed a similar law in March 2023.
The Sixth Circuit Court of Appeals previously allowed the Tennessee law to remain in effect while the lawsuit was considered in court. The court's opinion starts by highlighting that major medical associations working with the transgender community approve of treatments involving types of care such as puberty blockers to help transgender minors, but says their approach has changed over the decades.
It also says that "Kentucky and Tennessee share an interest in regulating the medical treatments offered to children suffering from gender dysphoria. Tennessee was the first of the two States to regulate the treatments."
In the lawsuit, families argued that their due process rights under the 14th Amendment of the U.S. Constitution were violated.
Judges said courts should look to "norms that are 'deeply rooted in this Nation's history and tradition'" to determine if something violates the 14th Amendment. It determined that the families who brought the lawsuit did not have their 14th Amendment rights violated.
"This country does not have a 'deeply rooted' tradition of preventing governments from regulating the medical profession in general or certain treatments in particular, whether for adults or their children," the court ruled.
The court's ruling cites Dobbs v. Jackson Women's Health Org. several times, a U.S. Supreme Court decision that overturned the previous Roe v. Wade decision.
It later said that no tradition exists in the U.S. to determine what "level of generality" a parent can have to make decisions for their children.
"The government has the power to reasonably limit the use of drugs, as just shown. If that’s true for adults, it’s assuredly true for their children, as also just shown. This country does not have a custom of permitting parents to obtain banned medical treatments for their children and to override contrary legislative policy judgments in the process," the ruling said.
The lawsuit to block the law argued that gender-affirming care is not new and does not involve experimental care. The court responded by saying that a state could ban "even longstanding and nonexperimental treatments for children," as long as it acts reasonably.
The court also determined that the states' laws did not discriminate against transgender youth, because, "the laws regulate sex-transition treatments for all minors, regardless of sex." It does not discuss transgender youth specifically but does discuss possible differences between the words "sex" and "gender" regarding previous cases involving discrimination.
"One simply cannot define, or create, a protected class solely by the nature of a denied medical benefit: in this instance childhood treatment for gender dysphoria," the ruling said. "What is true for the word 'sex,' if plaintiffs’ and the federal government’s arguments were accepted, also would be true for the word 'gender.'"
The ruling describes diagnoses of "gender dysphoria" as relatively new and said as medical organizations change approaches to treating it, they cannot be sure of a treatment's long-term impact.
The American Psychological Association, along with several other organizations, found that access to gender-affirming care benefits transgender youth, helping prevent suicide.
"Access to gender-affirming care has a positive relationship with the mental health of transgender youth and lowers their risk of depression and suicide," it said online. "Transgender youth who have access to gender-affirming medical care experience improvements in mental health and often show mental health comparable to their cisgender peers."
Judge Helene White dissented against the circuit court's decision.
"In the normal course, the Constitution contemplates the states acting as laboratories of democracies to resolve the controversies of the day differently," she wrote. "But when a fundamental right or freedom from discrimination is involved, experimentation has no place."
Attorney General Jonathan Skrmetti released a statement about the decision, available below.
“This is a big win for democracy. 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.”
The ACLU also released a statement, available below.
“This is a devastating result for transgender youth and their families in Tennessee and across the region. The disastrous impact of Tennessee’s law and all others like it has already been felt in thousands of homes and communities. Denying transgender youth equality before the law and needlessly withholding the necessary medical care their families and their doctors know is right for them has caused and will continue to cause serious harm. We are assessing our next steps and will take further action in defense of our clients and the constitutional rights of transgender people in Tennessee and across the country.”