Activists Continue to Challenge Sex Transition Bans for Minors as Tide Turns Against Them
After a series of unbroken victories, activists challenging bans on sex transitions for minors suffered their first defeat recently but continue to make similar arguments.
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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Comments
These malignant clowns and pedophiles aren’t amusing: they’re literally helping to chop apart children’s bodies and dooming them to lives of misery.
Bottom line: misery lives company, and these odious parasites are miserable.
Pedophilai should be a capital crime – as it now is in Florida.
Groomers are gonna groom. The world has been entirely too nice to these people.
Sound of Freedom
“it is impossible to discriminate against a person for being . . . transgender without discriminating against that individual based on sex.”
You could say the same about rapists or street hookers. So what.
Hopefully science will advance to the stage where these operations can take place in the womb.
Frankly, I’m still amazed that none of the teachers or doctors or administrators or social workers or guidance counselors who have been trying to destroy children with this insane perversion and, most especially, with the monstrous drugs and mutilations, have not been put away. The prisons should be full of these sex offenders, really. It’s just crazy that I have not even heard of a single one being arrested for their obvious and awful sex crimes against minors, and against vulnerable children. The laws have been on the books forever.
If genitalia don’t determinre sex, then why does removing them change anyone’s sex? Gender dysphoric individuals need therapy not surgery.
That’s what I say all the time. They need therapy and this is a mental issue 100%. I always find it weird that men say they’re trans female lesbians.
No, my friend, you’re hetero with extra steps.
Nobody likes a pedophile, as the pedophiles are now finding out
Democrats are having a difficult time trying to create a third sex..
Creating an IT, by hypocritic $$$ Hippocratic oath.
The rationalization for gender reassignment surgery before adulthood is that teens that are confused about their sex often commit suicide. What they carefully don’t notice is the suicide rate after gender reassignment. Before gender reassignment, there’s one reason for such kids to commit suicide: They don’t fit in and the other kids think they’re weird.
After gender reassignment, there are two or three reasons for suicide:
1. They’re still weird and don’t fit in. Example: Dylan Mulvaney.
2. Often they realize that changing their apparent sex didn’t fix the real problem, and they can’t go back.
3. They’ve been sterilized and nearly neutered, and that is irreversible. Never being able to have a child from your own body might not seem important to a distressed 15 year old, but it’s likely to look different at 25, or 35, or 45.
Look at all the cis, straight women who declined to have children during their prime childbearing years and are now desperately seeking a medical miracle to enable a pregnancy after age has taken their fertility. Now move the decision point back to when they were still children, and remove all possibility of a late pregnancy if they chose wrong.
Adults should be presumed to have the maturity to make a decision based upon all the relevant factors. After a legitimate diagnosis and in consultation with physicians and psychologists they are capable of making their own choices and accepting the responsibility for the consequences. Just as with every other adult decision.
Minor children (those under 18) are not legally capable of doing so. If the folks pushing the trans agenda want to make the argument that children under 18 are fully capable of making decisions while accepting the responsibility and consequences of those choices let them do so. So far the silence on this point is deafening, instead they use emotional appeals and hyperbole to create false choices; ‘do you want a dead kid or a trans kid’? That sort of transparent attempt at emotional blackmail and manipulation is bunk.
They can start with advocating for eliminating the distinction between how society adjudicate juvenile v adult criminals. If there’s no distinction between the ability of adults and juveniles to make, understand and accept responsibility then they should advocate for reforms of our criminal and civil statutes to eliminate those distinctions. Until then they should be told to pound sand.
Unsurprisingly, they don’t do that b/c they don’t really believe a distinction doesn’t exist, but the cash flow to medical providers and the reward of virtue signals to their surrogates certainly does. The only folks on the left pushing to remove the distinction between adult and child are the paedophiles.
They based it on the FDA!? Who do you think staffs federal agencies?
My legal brief:
NO! NO! AND HELL NO!