Tennessee appeals court allows gender-affirming care ban to take effect

08 July 2023

The United States Court of Appeals for the Sixth Circuit on Saturday reversed Middle District of Tennessee Judge Eli Jeremy Richardson's Wednesday, June 28th ruling that partially blocked the state's ban on puberty blockers and hormone therapies, which are used in gender-affirming care procedures.

Richardson's order stated that "Tennessee can enforce its ban on gender transition surgical procedures, with Richardson finding that none of the plaintiffs were planning to pursue surgery as minors," The Tennesseanreported at the time, noting that "the injunction is temporary, pending a complete trial on the lawsuit, but Richardson's opinion indicated Tennessee officials have so far failed to make a convincing case on the constitutionality of the law, which General Assembly Republicans moved quickly to pass earlier this year."

But Chief Sixth Circuit Appeals Court Judge Jeffrey Sutton wrote in a seventeen-page decision that "because Tennessee is likely to succeed on its appeal of the preliminary injunction, we grant the stay."

Sutton opined that "there are two merits-related problems with the district court's order. One relates to its scope. The other relates to its assessment of plaintiffs' chances in challenging the Act on due process and equal protection grounds."

Sutton asserted that "the challengers also are unlikely to prevail on their due process and equal protection claims," despite conceding, "That many members of the medical community support the plaintiffs is surely relevant. But it is not dispositive for the same reason we would not defer to a consensus among economists about the proper incentives for interpreting the impairment-of-contracts or takings clauses of the US Constitution. At all events, the medical and regulatory authorities are not of one mind about using hormone therapy to treat gender dysphoria. Else, the FDA would by now have approved the use of these drugs for these purposes. That has not happened, however, giving us considerable pause about constitutionalizing an answer they have not given or, best we can tell, even finally studied."

Sutton also shot down Richardson's due process basis, stating that "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" and that "constitutionalizing new parental rights in the context of new medical treatments is no mean task."

Furthermore, Sutton said that the Court is "skeptical" of arguments that the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity Act "bans gender-affirming care for minors of both sexes" because it "applies to all minors, regardless of their biological birth with male or female sex organs. That prohibition does not prefer one sex to the detriment of the other."

The Sixth Circuit Appeals Court's full opinion is available at this link. The Tennessean's article is here.

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