State Laws Banning ‘Experimental Sex-Change Treatments’ for Children To Remain in Force, Appeals Court Rules
The court rejected the plaintiffs’ argument that transgender people are “politically powerless,” citing broad support, and dismissed their parental rights argument: “becoming a parent does not create a right to reject democratically enacted laws.”
A federal appeals court refused to block two state laws banning “gender-affirming care” for minors. The court declined to issue a preliminary injunction blocking the Kentucky and Tennessee laws restricting the use of puberty blockers, hormone therapies, and surgical procedures in cases of gender dysphoria in minors.
The decision allows these laws to remain in effect while challenges continue in the lower courts, both of which had issued preliminary injunctions blocking the laws, and comes less than a month after another federal appeals court rejected a similar challenge to an Alabama law.
The ACLU and other groups representing the plaintiffs decried the ruling as “a devastating result for transgender youth and their families in Tennessee and across the region.”
Daily Wire personality and conservative commentator Matt Walsh praised the decision as a “devastating blow to the trans cult”:
Impossible to overstate the importance of the 6th Circuit court upholding child mutilation bans in Tennessee and Kentucky. Absolutely devastating blow to the trans cult. The ruling tears their agenda apart piece by piece. Another major sign that we are winning this fight.
— Matt Walsh (@MattWalshBlog) September 29, 2023
Earlier this year, the same court rejected emergency appeals asking the court to block the Kentucky and Tennessee laws. The court ordered an expedited review of the matter before making a final decision on the preliminary injunction, as Legal Insurrection reported.
The court’s final decision yesterday provided a more thorough analysis of the legal issues, which included due process, parental rights, equal protection, and allegations of sex-based discrimination.
Kentucky Attorney General Daniel Cameron praised the decision as a victory “in his fight to protect Kentucky children from experimental sex-change treatments.”
Due process and parental rights
The court rejected the argument that due process rights supported the plaintiffs’ challenge. The court noted that regulation of medical treatments is commonplace at the federal and state levels and does not ordinarily trigger due process concerns.
Courts, the majority argued, owe deference to medical regulatory bodies and legislatures, particularly where novel treatments are concerned.
The court rejected the plaintiffs’ parental rights argument, too: “becoming a parent does not create a right to reject democratically enacted laws” concerning “reasonably banned treatments.”
The court also distinguished what the plaintiffs sought—”an affirmative right to specific treatments”— from the more widely recognized “right to refuse treatment,” noting the latter comported with “longstanding traditions” while the former did not.
Equal protection and sex-based discrimination
The plaintiffs argued a ban on “gender-affirming care” necessarily implicated sex-based discrimination because such bans restrict care by reference to sex. The court rejected this argument, noting sex discrimination does not occur merely because a law regulates a procedure “unique to one sex or the other.”
Moreover, the court found the laws at issue restricted the same procedure—”gender-affirming care”—for both sexes, further weakening the claim of sex discrimination.
The court continued its equal protection analysis by noting that transgender people are not part of an immutable group because transgender status cannot be definitively determined. The presence of “detransitioners,” the court found, also cut against the immutability claim.
The court then rejected the argument that transgender people are “politically powerless,” noting they had the support of President Joe Biden, the Department of Justice, more than 20 states, and major medical organizations. Others highlighted this conclusion at odds with the conventional marginalization narrative:
tonight, in addition to upholding TN's law against child castration, the Sixth Circuit told trans activists that they are not 'marginalized'. they are, in fact, backed by the feds, big Pharma, and medical orgs. And they were told: none of that overrules the will of people. pic.twitter.com/OZSdfDnBvX
— Gregg Re (@gregg_re) September 29, 2023
The court also found a lack of animus motivating the laws, finding Kentucky and Tennessee had “legitimate concerns in mind” and “[a] fair-minded legislature could review the evidence in the area and call for pause, demanding more proof that these procedures are safe.”
The court highlighted the fact that the challenged laws only applied to minors, an unlikely limitation if animus toward transgender people motivated the legislatures.
Rounding out the analysis, the court found the laws drew rational lines “because banning puberty blockers and hormones for some purposes,” such as protecting children, “and not for other purposes,” like treating congenital defects, was rational.
One judge dissented from the decision. The judge argued the law was clear “discriminat[ion] based on sex and gender conformity” that “intrude[d] on the well-established province of parents to make medical decisions for their minor children,” who are “assigned a sex, either male or female” at birth.
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