The hammer came down on trans kids with a 2-1 decision by a panel of the 6th U.S. Circuit Court of Appeals that allows a state ban in Tennessee to go into effect. The decision lifts an injunction issued by a lower court blocking enforcement of the Tennessee law banning gender-affirming care. The American Civil Liberties Union noted that the law went into effect immediately following the July 8 ruling.
The lawsuit was filed by Samantha and Brian Williams of Nashville and their 15-year-old daughter, as well as two other anonymous families and Dr. Susan N. Lacy. The law prohibits medical providers from providing gender-affirming health care to transgender youth and requires trans youth currently receiving such care to stop within nine months.
The ACLU stated in a news release that this is the first federal court to allow a ban on gender-affirming care to take effect after courts have unanimously blocked such bans in Arkansas, Florida, Indiana, and Kentucky. Last month, a federal court in Arkansas struck down that state's ban on gender-affirming care in the first ruling on the merits of such a law, finding that it violated the equal protection clause, due process clauses, and the First Amendment of the U.S. Constitution. Trans youth in Tennessee are not so fortunate.
"This ruling is beyond disappointing and a heartbreaking development for thousands of transgender youth, their doctors, and their families," stated the ACLU, the ACLU of Tennessee, Lambda Legal Defense and Education Fund, and Akin Gump Strauss Hauer and Feld LLP, the legal organizations and law firm representing the plaintiffs. "As we and our clients consider our next steps, we want all transgender youth of Tennessee to know this fight is far from over and we will continue to challenge this law until it is permanently defeated and Tennessee is made a safer place to raise every family."
The 6th Circuit, which covers Tennessee, Kentucky, Michigan, and Ohio, is one of the most conservative in the country so, in that respect, the ruling is not a surprise. But federal courts in other red states have concluded that bans on gender-affirming care are not permissible, and we are dismayed by the decision because of the real harm it will cause trans youth and their families in that state, as well as the message it sends to trans kids and their families across the country.
Jeffrey Sutton, chief judge of the 6th Circuit, and Judge Amul Thapar were in the majority while Judge Helene White issued a partial dissent. That's notable because White, nominated by former President George W. Bush, is conservative, as are Sutton, also nominated by Bush, and Thapar, nominated by former President Donald Trump.
In her partial dissent and partial concurrence, White wrote that she believes Tennessee's law is "likely unconstitutional based on plaintiffs' theory of sex discrimination." She would not have stayed the lower court's injunction but she would have narrowed its scope, she wrote, to apply to the plaintiffs and Vanderbilt University Medical Center. White cited the Title VII context in the Bostock v. Clayton County U.S. Supreme Court decision of 2020, which ruled that under Title VII sex discrimination occurs when an "employed intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth." As White noted, "that principle is directly on point here and highly persuasive."
Applying standards in previous cases that determined government policies that place discrimination based on sex cannot stand unless the government provides "an exceedingly persuasive justification," which requires showing that the "classification serves 'important government objectives' and ... is substantially and directly related to the government's objectives," White wrote. She noted that she failed to see how the state can justify denying access to hormone therapies for treatment of minor plaintiffs' gender dysphoria while permitting access to others "especially in light of the district court's robust factual findings on the benefits of these treatments for transgender youth."
It's unfortunate that the other judges on the panel were not persuaded by White's legal arguments, which, in our opinion, are on point.
It's unclear what the next step is for the plaintiffs' attorneys. In the meantime, trans youth and their families in Tennessee are left in a lurch, particularly those already in treatment who will have to stop soon. It's because of laws like Tennessee's that California passed its law last year creating a refuge for trans kids and their families. And while some families may leave the Volunteer State to find a more hospitable one, that might not be an option for others.
Studies have shown that trans kids do much better when they're able to access gender-affirming care and have the support of their families and medical providers. The U.S. Department of Health and Human Services' Office of Population Affairs noted in a resource paper, "Because gender-affirming care encompasses many facets of health care needs and support, it has been shown to increase positive outcomes for transgender and nonbinary children and adolescents. Gender-affirming care is patient-centered and treats individuals holistically, aligning their outward, physical traits with their gender identity. Gender diverse adolescents, in particular, face significant health disparities compared to their cisgender peers. Transgender and gender nonbinary adolescents are at increased risk for mental health issues, substance use, and suicide."
Contrary to what conservatives think, gender-affirming care for trans youth generally is not surgery. It usually involves therapies like hormone treatment, puberty blockers, and mental health care that in most cases provide these youth with the services they need for these positive outcomes. The two judges on the 6th Circuit panel in the majority were incorrect in their decision, which could result in real harm to trans kids and their families.
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