Federal Judges Say Tennessee Can Enforce Gender-Affirming Care Ban

Tennessee can enforce its ban on gender-affirming care for minors in the state, for now, after a federal appeals court ruling was handed down Saturday. 

The ruling was part of a civil lawsuit brought by a Tennessee couple, their teenage transgender daughter, two anonymous families and a physician. The group is challenging the new law, signed in March, which bars trans youth from receiving hormone therapy, puberty blockers and gender-affirming surgeries.  

“The challengers have not shown that a right to new medical treatments is ‘deeply rooted in our history and traditions’ and thus beyond the democratic process to regulate,” wrote Sixth Circuit Court of Appeals Chief Judge Jeffrey Sutton, a former President George W. Bush appointee. 

He cited the 1997 Washington v. Glucksberg  Supreme Court opinion, although the same line about “history” and “tradition” became infamous after the high court took away nationwide abortion rights in Dobbs v. Jackson Women’s Health last summer.

Sutton argued that it was more appropriate for the question of gender-affirming care for minors to be addressed by state legislatures, rather than judges. He also used the Dobbs decision to argue that one of the core claims of the lawsuit required a lower level of judicial scrutiny than a lower court believed. And Sutton suggested that the drugs used in gender-affirming care may not be safe because they are prescribed “off label,” meaning the FDA has not officially approved them for such uses, even though many drugs are prescribed “off label” to children .

“Given the high stakes of these nascent policy deliberations — the long-term health of children facing gender dysphoria — sound government usually benefits from more rather than less debate,” Sutton wrote. He was joined by Judge Amul Thapar, a former President Donald Trump appointee.

A district court had blocked the state from enforcing the law in late June, joining several others that have also temporarily halted other states’ bans . 

The district court judge — another Trump appointee — argued the law was likely unconstitutional because it discriminated on the basis of sex. Sutton and Thapar voted to temporarily lift the district court’s injunction until the matter could be fully reviewed, setting an expedited deadline of Sept. 30. 

Tennessee’s legislation contained many misleading statements about gender-affirming care, such as calling it “experimental” when such treatments have been provided for decades and are supported by many major medical associations. Sutton repeated several misleading claims uncritically, leaning heavily on the idea that gender-affirming care is “irreversible.”

“Tennessee’s interests in applying the law to its residents and in being permitted to protect its children from health risks weigh heavily in favor of the State at this juncture,” Sutton wrote. 

The third judge on the panel, Helene White, concurred in part and dissented in part. White was appointed by Bush after her nomination by President Bill Clinton languished for years and then expired. She cast heavy doubt on the majority’s suggestion that the law did not violate the Constitution’s equal protection clause, given that it allows some of the same treatments to be given to cisgender youths. But she agreed that the district court should not have applied for the injunction statewide.

While the measure was originally expected to go into effect July 1, Saturday’s decision meant it would go into effect immediately. It allows minors receiving gender-affirming care before July 1 to continue their treatment until March 31, 2024.

Tennessee Attorney General Jonathan Skrmetti (R) praised the ruling.

“The case is far from over, but this is a big win,” he said in a statement . 

The American Civil Liberties Union, backing the lawsuit, called the decision “beyond disappointing and a heartbreaking development for thousands of transgender youth, their doctors, and their families.”

The group said in a statement , “As we and our clients consider our next steps, we want all the 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.”