Appeals Court Reinstates Tennessee Law Prohibiting Child Gender Surgeries, Hormones, Puberty Blockers

Appeals Court Reinstates Tennessee Law Prohibiting Child Gender Surgeries, Hormones, Puberty Blockers

Tennessee passed a law prohibiting gender surgeries, hormones, and puberty blockers being given to children to treat gender identity issues. (It does not prohibit such treatments for medical conditions.)

A federal district court issued an injunction against the law. The Sixth Circuit Court of Appeals just granted an emergency stay of the trial court order, effectively reinstating the law pending final outcome of the appeal.

From the Opinion:

Tennessee enacted a law that prohibits healthcare providers from performing gender-affirming surgeries and administering hormones or puberty blockers to transgender minors. After determining that the law likely violated the Equal Protection and Due Process Clauses, the district court facially enjoined the law’s enforcement as to hormones and puberty blockers and applied the injunction to all people in the State. Tennessee appealed and moved for an emergency stay of the district court’s order. Because Tennessee is likely to succeed on its appeal of the preliminary injunction, we grant the stay….

A healthcare provider may not “administer or offer to administer” “a medical procedure” to a minor “for the purpose of” either “[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex,” or “[t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Id. § 68-33-103(a)(1). Prohibited medical procedures include “[s]urgically removing, modifying, altering, or entering into tissues, cavities, or organs” and “[p]rescribing, administering, or dispensing any puberty blocker or hormone.” Id. § 68-33-102(5).

The Act contains two relevant exceptions. It permits the use of these medical procedures to treat congenital defects, precocious puberty, disease, or physical injury. Id. § 68-33103(b)(1)(A). And it has a “continuing care” exception until March 31, 2024, which permits healthcare providers to continue administering a long-term treatment, say hormone therapy, that began before the Act’s effective date. Id. § 68-33-103(b)(1)(B)….

On June 28, the district court granted the motion in part. It concluded that the challengers lacked standing to contest the ban on surgeries but could challenge the ban on hormones and puberty blockers. As to due process, the court found that the Act infringes the parents’ “fundamental right to direct the medical care of their children.” R.167 at 14. As to equal protection, the court reasoned (1) that the Act improperly discriminates on the basis of sex and (2) that transgender persons constitute a quasi-suspect class and that the State could not satisfy the necessary justifications that come with this designation. The district court concluded that the Act was facially unconstitutional (with the exception of the surgery and private enforcement provisions), and it issued a statewide injunction against its enforcement.

In reviewing the standards for a stay pending appeal, the appeals court rejected unfettered deference to the medical establishment:

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 U.S. 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.

The court also rejected the claim that giving children these treatments is a parental right:

Parents, it is true, have a substantive due process right “to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000). But the Supreme Court cases recognizing this right confine it to narrow fields, such as education, Meyer v. Nebraska, 262 U.S. 390 (1923), and visitation rights, Troxel, 530 U.S. 57. No Supreme Court case extends it to a general right to receive new medical or experimental drug treatments. In view of the high stakes of constitutionalizing areas of public policy, any such right must be defined with care. Glucksberg, 521 U.S. at 721 (requiring “a ‘careful description’ of the asserted fundamental liberty interest” (quotation omitted)). 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. Id. at 727. Constitutionalizing new parental rights in the context of new medical treatments is no mean task. On the one side of the ledger, parents generally can be expected to know what is best for their children.

On the other side of the ledger, state governments have an abiding interest in “preserving the welfare of children” …. particularly in an area of new medical treatment. We doubt, for example, that there are many drug-regulatory agencies in the world that, without satisfactory long-term testing, would delegate to parents and a doctor exclusive authority to decide whether to permit a potentially irreversible new drug treatment….

It is well within a State’s police power to ban off-label uses of certain drugs. At the same time, it is difficult to maintain that the medical community is of one mind about the use of hormone therapy for gender dysphoria when the FDA is not prepared to put its credibility and careful testing protocols behind the use.

The court then ordered expedited briefing and decision:

These initial views, we must acknowledge, are just that: initial. We may be wrong. It may be that the one week we have had to resolve this motion does not suffice to see our own mistakes. In an effort to mitigate any potential harm from that possibility, we will expedite the appeal of the preliminary injunction, with the goal of resolving it no later than September 30, 2023. In the interim, the district court’s preliminary injunction is stayed.

Ed Whelan has a good Twitter thread breaking down the decision:

• Sixth Circuit in overturning district-court injunction of Tennessee law against transgender interventions on minors: The key premise of a preliminary injunction—likelihood of success on the merits—is missing.
• CA6: That many members of medical community support plaintiffs is relevant. But it is not dispositive for same reason we would not defer to a consensus among economists about proper incentives for interpreting impairment-of-contracts or takings clauses of U.S. Constitution.
• CA6: Deferential rational-basis review applies to transgender-based classifications.
• CA6: Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field.
• CA6: Plaintiffs seek to *extend* Supreme Court precedents to new territory. The burden of establishing an imperative for constitutionalizing new areas of American life is not—and should not be—a light one.
• CA6: Parental constitutional right to make decisions concerning care, custody, and control of their children is confined to narrow fields and does not extend to general right to receive new medical or experimental drug treatments.
• CA6: State legislatures play a critical role in regulating health and welfare, and their efforts are usually entitled to a strong presumption of validity. Federal courts must be vigilant not to substitute their views for those of legislatures.
• CA6: Judicial deference is especially appropriate where medical and scientific uncertainty exists. E.g., there is no constitutional right to use a new drug that the FDA has determined is unsafe or ineffective.

BREAKING: Child sterilization and mutilation ban in Tennessee is now in full effect!

A judge tried to block the law but the U.S. Court of Appeals for the Sixth Circuit has ruled against it!

HUGE W. We are winning this war. #GaysAgainstGroomers pic.twitter.com/gBrW01Yl9r

— Gays Against Groomers (@againstgrmrs) July 8, 2023

Good thing they don’t practice law.

— Jody Barrett – State Representative (TN69) (@Jodyforstaterep) July 8, 2023

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