Activist groups have launched their latest challenge to a state ban on sex transition procedures for minors. The latest lawsuit, which challenges a Texas ban, came a mere four days after activists suffered their first, albeit preliminary, defeat in a federal appellate court over a similar Tennessee law.
On July 8, a panel of the Sixth Circuit appeals court granted an emergency motion dissolving a lower court’s injunction against a Tennessee ban on sex transition procedures for minors pending further proceedings. Legal Insurrection covered the Sixth Circuit’s decision, which represented the first win in federal court for a state law banning the procedures for minors.
While the Sixth Circuit’s decision has no direct impact on the Texas case because Texas resides in the Fifth Circuit, the similarities between the Texas and Tennessee laws suggest grounds may exist for upholding these laws.
The Texas and Tennessee laws have many noteworthy similarities: Both laws make exceptions for the treatment of congenital defects unrelated to gender identity.
The laws, however, both restrict the use of hormones, puberty blocks, and surgical procedures aimed at transitioning a minor to a state inconsistent with his or her biological sex.
The earlier Tennessee injunction applied only to the use of hormones and puberty blockers, not surgeries because the lower court found the plaintiffs lacked standing to challenge the surgery provision of the Tennessee law.
The challenge to Texas’s law makes many legal arguments similar to those that failed to persuade the Sixth Circuit. Namely, the laws allegedly engage in sex-based discrimination and intrude on the “fundamental rights” of parents.
The Texas complaint alleges laws banning sex transition procedures necessarily engage in sex-based discrimination by restricting available procedures based on a conflict between the patient’s sex and gender identity.
Citing Bostock v. Clayton County, which interpreted Title VII’s ban on employment discrimination “because of . . . sex,” the Texas complaint argues
“it is impossible to discriminate against a person for being . . . transgender without discriminating against that individual based on sex.” In other words, “discrimination based on . . . transgender status necessarily entails discrimination based on sex.” (citations omitted)
The Sixth Circuit’s decision provides a counterargument:
Bostock v. Clayton County does not change the analysis. Title VII’s prohibition on employment discrimination “because of . . . sex” encompasses discrimination against persons who are gay or transgender, the Court concluded. But that reasoning applies only to Title VII, as Bostock itself and our subsequent cases make clear. (citations omitted)
The Sixth Circuit then goes on to list numerous other refusals to apply Bostock‘s reasoning outside the Title VII context.
The Sixth Circuit, citing Reed v. Reed, further argues that the Tennessee law is permissible because it “bans gender-affirming care for minors of both sexes. The ban thus applies to all minors, regardless of their biological birth with male or female sex organs.”
The Texas complaint, taking note of this, argues the Sixth Circuit cited a dated precedent. Citing the more recent United States v. Virginia, the Texas complaint argues “all gender-based classifications today warrant heightened scrutiny.”
The Texas complaint, however, does not engage with the Sixth Circuit’s use of the even more recent Dobbs v. Jackson Women’s Health Organization, which held that
The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretex[t] designed to effect an invidious discrimination against the members of one sex or the other.” (citation omitted)
Moving on to parental rights, the Texas complaint argues parents have the right “to the care, custody, and control of their children, . . . includ[ing] the right . . . to give, withhold, and withdraw consent to medical treatment for their children.”
The Sixth Circuit accepted the proposition that parents have the right “to make decisions concerning the care, custody, and control of their children.”
The Sixth Circuit, however, noted that the Supreme Court has yet to extend these parental rights to include “receiv[ing] new medical or experimental drug treatments,” which the Sixth Circuit deemed to be at issue here because the FDA has yet to approve the relevant drugs for use in sex transition procedures for minors.
The Texas complaint, responding in a footnote to the Sixth Circuit’s reasoning, argues a lack of FDA approval for these drugs for sex transition procedures is irrelevant because these drugs have been approved for other uses, and the medical community commonly prescribes drugs for off-label uses.
Legal Insurrection has covered bans on sex transitions for minors in other states, including Arkansas, where a federal judge struck down the state’s Save Adolescents from Experiment Act after finding it discriminated on the basis of sex and interfered with parental rights.
The Texas complaint:
The Sixth Circuit’s decision:
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