The U.S. Court of Appeals for the 6th Circuit ruled Saturday in favor of a Tennessee law protecting minors from “gender transition” surgeries and hormone treatments. The 2-1 decision reversed the district court’s statewide preliminary injunction. The decision both allows Tennessee’s law protecting minors to remain in effect while the lawsuit proceeds and signals that “Tennessee is likely to succeed” while “the challengers lack a ‘clear showing’ that they will succeed on the merits.”

“Progress! This court decision is the first time a federal appeals court has allowed a state law prohibiting harmful gender transition procedures on minors to go into effect,” tweeted Family Research Council President Tony Perkins. “[Twenty] states have passed some type of SAFE Act legislation to protect kids; 7 states currently have laws in effect.”

“The case is far from over, but this is a big win,” said Tennessee Attorney General Jonathan Skrmetti, a Republican. “The court of appeals lifted the injunction, meaning the law can be fully enforced, and recognized that Tennessee is likely to win the constitutional argument and the case.”

In response to a challenge by “three transgender minors, their parents, and a doctor,” Judge Eli Richardson in the Middle District of Tennessee on June 28 blocked portions of the Tennessee law protecting minors from gender transition hormones, which was scheduled to take effect on July 1.

The injunction did not block the law’s private right of action, which was not challenged, and its prohibition on performing gender-transition surgeries on minors, because the judge ruled the challengers lacked standing. “The district court concluded that the act was facially unconstitutional,” summarized the 6th Circuit, “and it issued a statewide injunction against its enforcement.”

Before addressing the constitutional issues, the appellate court reproved the district judge for abusing his judicial discretion. Citing a 1987 Supreme Court opinion, United States v. Salerno, it noted, “Litigants raising ‘a facial challenge to a statute normally must establish that no set of circumstances exists under which the [statute] would be valid.’” Instead of doing so, “the district court questioned whether the test applied and declined to engage with Tennessee’s arguments that it could lawfully apply the act in some settings. But it is not for lower-court judges to depart from Salerno.”

On this point, even the dissenting judge agreed. “The district court abused its discretion in granting a statewide preliminary injunction” instead of an injunction applying only to the challengers, wrote Judge Helene White, who otherwise dissented from the ruling.

“The 6th Circuit’s opinion was a declaration of judicial restraint,” declared Family Action Council of Tennessee President David Fowler in a statement to The Washington Stand. “It held that the court does not have the power to make ‘law’ for everyone in a state, a constitutionally justified and refreshing departure from what federal district judges now do so often.”

As to constitutional questions, the challengers claimed that “the act violated the United States Constitution’s guarantees of due process and equal protection.” They asserted a substantive due process right of parents to make medical decisions for their children. Under equal protection, they claimed both that the act committed sex-based discrimination and that it discriminated on the basis of a “quasi-suspect” class of gender identity. The court rejected all these claims.

While the 6th Circuit acknowledged the right of parents “to make decisions concerning the care, custody, and control of their children,” they argued that “no Supreme Court case extends it to a general right to receive new medical or experimental drug treatments.” Furthermore, “the challengers have not shown that a right to new medical treatments is ‘deeply rooted in our history and traditions.’”

They pointed to the work of the Food and Drug Administration as a prominent example. “There is no constitutional right to use a new drug that the FDA has determined is unsafe or ineffective,” they noted. Therefore, state legislatures “are usually ‘entitled to a strong presumption of validity’” in regulating health and safety and are particularly entitled to deference from judges “where ‘medical and scientific uncertainty’ exists.”

“Parental rights is the most open area for the plaintiffs to pursue going forward, [by] arguing that the right should be extended to medical care,” Fowler suggested. “However, I think the fact that the care is rather new, controversial, and not approved by the FDA will be an impediment to getting at least the 6th Circuit to extend any right to medical care to new or experimental treatments.”

The 6th Circuit saw through medical organizations’ false consensus on gender transitions for minors. “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 lack of FDA approval for gender-transition treatments gave them “considerable pause about constitutionalizing an answer they have not given or, best we can tell, even finally studied.” In other words, “It is well within a state’s police power to ban off-label uses of certain drugs,” and “The Constitution does not require Tennessee to view these treatments the same way as the majority of experts or to allow drugs for all uses simply because the FDA has approved them for some.”

The 6th Circuit was similarly skeptical of the equal protection claim. Appealing to the Supreme Court’s 2022 landmark abortion ruling in Dobbs v. Jackson Women’s Health Organization, they declined to apply a standard of heightened scrutiny. “If a law restricting a medical procedure that applies only to women does not trigger heightened scrutiny, as in Dobbs, a law equally applicable to all minors, no matter their sex at birth, does not require such scrutiny either,” they said. “The reality that the drugs’ effects correspond to sex in these understandable ways and that Tennessee regulates them does not require skeptical scrutiny.”

White dissented on this point, writing, “The law discriminates based on sex because ‘medical procedures that are permitted for a minor of one sex are prohibited for a minor of another sex,’” quoting from the recent ruling against Arkansas’ SAFE Act.

“To illustrate,” she added, “under the law, a person identified male at birth could receive testosterone therapy to conform to a male identity, but a person identified female at birth could not.”

By contrast, the court characterized the law on its own terms: “[Tennessee’s law] bans procedures that administer cross-sex hormones but not those that administer naturally occurring hormones.”

With heightened scrutiny unwarranted, the state of Tennessee only needed to show a rational basis for the act. “The state plainly has authority, in truth, a responsibility, to look after the health and safety of its children,” said the court. “In this area of unfolding medical and policy debate, a state has more rather than fewer options. Tennessee could rationally take the side of caution before permitting irreversible medical treatments of its children.”

But the challengers also advanced a separate equal protection argument, claiming that “the act amounts to transgender-based discrimination, violating the rights of a quasi-suspect class.” The court rejected this theory, too, noting that, “Neither the Supreme Court nor this court has recognized transgender status as a quasi-suspect class.”

In fact, they pointed out that the Supreme Court has not recognized any new quasi-suspect classes in 40 years and has repeatedly declined to do so. “That hesitancy makes sense here,” they continued. “Gender identity and gender dysphoria pose vexing line-drawing dilemmas for legislatures. Plenty of challenges spring to mind. Surgical changes versus hormone treatment. Drugs versus counseling. One drug versus another. One age cutoff for minors versus another. Still more complex, what about sports, access to bathrooms, definitions of disability?”

Fowler said the court’s decision was “a smack down to the DOJ [Department of Justice] that is now making this equal protection claim.” The U.S. Department of Justice sought to intervene in the lawsuit against Tennessee’s law, arguing that it violated the equal protection clause of the 14th Amendment.

While other circuit courts have extrapolated transgender status as a universally protected class from the Supreme Court’s 2020 Bostock decision, the 6th Circuit stated, “That reasoning applies only to Title VII, as Bostock itself and our subsequent cases make clear.”

If courts did intervene in the legislature’s attempts to define policies covering people who identify as transgender, “all that would happen is that we would remove these trying policy choices from 50 state legislatures to one Supreme Court,” said the 6th Circuit.

Instead of the vigorous, sometimes frustrating, “arena of public debate and legislative action” across the country and instead of other options provided by 50 governors and 50 state courts, we would look to one judiciary to sort it all out. … That is not how a constitutional democracy is supposed to work—or at least works best—when confronting evolving social norms and innovative medical options.

In the end, the court opted to refrain from interfering in “the recent proliferation of legislative activity across the country,” characterizing a live political controversy. “Given the high stakes of these nascent policy deliberations—the long-term health of children facing gender dysphoria—sound government usually benefits from more rather than less debate,” they said. “To permit legislatures on one side of the debate to have their say while silencing legislatures on the other side of the debate under the U.S. Constitution does not further these goals.”

The court concluded on a note of humility, acknowledging the lack of time for deliberation inherent in any emergency appeal. “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.”

So, while Tennessee’s law scored a victory and promising signs for the future, the 6th Circuit’s ruling is only temporary. Further rulings may be expected after the trial, which has been set for September.

Fowler said the 6th Circuit ruling has created a positive precedent that attorneys general in other states should use to argue their own cases. “Every state AG should use this opinion to at least get a win,” he said.

Meanwhile, the 6th Circuit ruling creates a direct precedent for the four states in its jurisdiction—Michigan, Ohio, Kentucky, and Tennessee. On June 28, a federal judge in the Western District of Kentucky granted a preliminary injunction against that state’s law protecting minors from gender transition procedures. State legislatures in Michigan and Ohio have not yet passed legislation protecting minors.

With the 6th Circuit decision reinstating Tennessee’s law, seven states have laws currently in effect that protect minors from gender transition procedures. Laws protecting minors passed this year in Iowa, Mississippi, and North Dakota went into effect immediately upon passage, while South Dakota’s law took effect on July 1. None of them have yet been challenged and blocked in court.

A 2022 Arizona law prohibiting gender transition procedures took effect in March, but it lacks any enforcement mechanism. A Georgia law protecting minors from gender transition procedures also took effect on July 1. Pro-trans activists sued to block it, but the judge determined they had filed suit too late (within 48 hours of the law taking effect).

The 6th Circuit’s decision is notable because most of the state laws protecting minors from gender transition procedures have been blocked wherever they have been challenged. Currently, preliminary injunctions from federal courts are blocking SAFE Act-style laws in Alabama, Florida, Indiana, and Kentucky.

In Oklahoma, the attorney general agreed not to enforce the law while a legal challenge proceeds, which amounts to the same thing. In Arkansas, a federal judge has upgraded his preliminary injunction (which was upheld by the 8th Circuit) against that state’s 2021 SAFE Act—the very first in the nation—to a permanent injunction, ruling it unconstitutional after a full trial.

Despite these preliminary setbacks, the 6th Circuit’s ruling shows that it is possible for states to successfully defend the constitutionality of protecting minors from gender transition procedures at the appellate court level.

There are now 20 states with laws on the books to protect minors from gender transition procedures. In seven of those states, the laws’ operative provisions are scheduled to take effect sometime between Aug. 28 and Jan. 1, 2024. Of the remaining 13, six are blocked by courts, while seven (including Tennessee’s) are now in effect.

“In sum and on the whole, a huge ‘praise God!’” concluded Fowler.

Originally Published by The Washington Stand

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