[See updates below]
In July, a divided panel in the U.S. Court of Appeals for the Sixth Circuit stayed a preliminary injunction against a Tennessee law banning gender-affirming pharmaceutical and surgical care for minors diagnosed with gender dysphoria. A similar situation arose in Kentucky. On Thursday, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated the preliminary injunctions issued in both cases. Chief Justice Sutton wrote the majority opinion in Scrimetti v. LW, and Justice Thapar joined them, rejecting both due process and equal protection laws challenges. Judge White dissented.
In his opinion, Chief Justice Sutton emphasizes the high hurdle plaintiffs must clear to justify a preliminary injunction, explains why plaintiffs cannot prove that the Tennessee and Kentucky statutes are clearly prohibited under existing precedent, and argues that judges must tread carefully before expanding existing constitutional safeguards to prevent Experimenting with emerging issues at the state level.
Claimants face several initial headwinds in obtaining relief. First, they do not claim that the original fixed meaning of due process or equal protection guarantees covers these claims. This raises the question whether the people of this country have agreed to remove discussions of this kind – about the use of innovative, and perhaps irreversible, medical treatments for children – from the traditional place of dealing with new standards, new medicines, and new audiences. Health Concerns: The Democratic Process. Permanent federal judges must be careful not to remove a troubling and novel topic of medical debate from the tides of democracy by interpreting a largely unamendable Constitution to occupy this space.
Second, while the objectors cite the Constitutional precedents of the Supreme Court and our court in bringing this suit, none of them resolve these claims. In each case, they seek to extend constitutional guarantees to new territories. There’s nothing wrong with that, for sure. But this reality suggests that the basic premise of a preliminary injunction – namely, showing a likelihood of success on an objective basis – is missing. Constitutionalizing new areas of American life is not something federal courts should do lightly, especially when states are “currently engaged in serious and thoughtful discussions” on the issue. Washington v. Glucksberg521 U.S. 702, 719 (1997).
Third, states are already engaged in thoughtful discussions on this issue, as shown by the recent proliferation of legislative activity across the country. By our count, nineteen states have laws similar to those in Tennessee and Kentucky, and all of them are recent. . . . Meanwhile, at least fourteen other countries offer different protections for those seeking treatments for gender dysphoria, all of which are newer. . . .
Most of this legislative activity has occurred over the past two years. Failure to allow these laws to take effect would result in these comprehensive cogs on the map being ground to a halt. Given the high stakes of these emerging policy deliberations—the long-term health of children with gender dysphoria—sound government typically benefits from greater debate, more rather than less input, and consideration of equitable policy approaches. Allowing legislatures on one side of the debate to have a say while silencing legislatures on the other side of the debate under the Constitution does not advance these goals. This is crucial in light of two looming facts in both cases: the concept of gender dysphoria as a medical condition is relatively new, and the use of drug treatments that alter or modify a child’s sex characteristics is even more recent. Preventing citizens and lawmakers from presenting their views on high-stakes medical policies, in which compassion for the child points in both directions, is not something federal judges who hold lifelong positions should do without a clear order in the Constitution.
The opinion goes on to address various due process and equal protection arguments and rejects claims that the laws in question impermissibly violate fundamental rights or violate equal protection, either by adopting impermissible classification on the basis of sex or discriminating against a suspected class.
Chief Justice Sutton’s opinion concludes:
No one in these consolidated cases discusses the presence of gender dysphoria or the distress caused by it. No one doubts the value of providing psychological and related care to the children who encounter it. The question is whether some additional treatments — puberty blockers, hormonal treatments, surgeries — should be added to the mix of treatments available to those 17 and younger. As for that, we go back to where we started. This is a relatively new diagnosis with methods of care constantly changing over the past decade or two. Under these circumstances, it is difficult for anyone to be certain about predicting the long-term consequences of abandoning age limits of any kind for these treatments. This is exactly the kind of situation in which life-long judges interpreting a Constitution that is difficult to amend should be humble and cautious about announcing new due process or equal protection rights that limit the ability of accountable elected officials to sort out these medical and social matters. And health. Policy challenges.
For these reasons, we vacate the preliminary injunctions issued in these cases and remand them to continue proceedings consistent with this decision.
As previously noted, Justice White disagreed, concluding that the laws violated due process and equal protection. Her opposition begins:
The laws we consider today discriminate on the basis of sex and gender conformity and intrude on the well-established parental boycott of medical decision-making for their minor children. Despite these violations of the equal protection and due process clauses of the Fourteenth Amendment, the majority concluded that the laws were likely to be constitutional and invalidated district court orders binding the laws. . . .
Her opposition ends:
As the majority noted, the heated political debate over gender-affirming care has resulted in differing laws in Tennessee, Kentucky, and across our country. In the normal course, the Constitution holds that states serve as laboratories for democracies to resolve current disputes differently. See New State Ice Co. v. Lipman285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
But when it comes to a fundamental right or freedom from discrimination, there is no room for experimentation. “The primary aim of our ‘constitutional system’ has been to extract certain topics from the vicissitudes of political debate, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts.” W. Virginia St. Pd. From ed. v. Barnett, 319 U.S. 624, 638 (1943). “Our fundamental rights should not be put to a vote; they depend on the outcome of no election being held.” Identification card. Similarly, “[n]o A referendum can legitimize unfair discrimination.” Lucas v. 44th General Assembly., 377 U.S. 713, 736 No. 29 (1964) (citation omitted).
Tennessee and Kentucky laws tell minors and their guardians that minors cannot receive medical care because of accidents of their birth and failure to conform to the way society believes boys and girls should look and live. The laws also deprive parents – those we consider best suited to promote the interests of their minor children – of their right to make medical decisions affecting their children jointly with their children and medical practitioners. For these reasons I disagree.
Given the current holding and composition of the 6th District, this is not a particularly strong candidate On bank review. There is also no districting yet on this question. The only other federal appeals court to have ruled on this case so far – the US Court of Appeals for the Eleventh Circuit – reached the same conclusion. However, many district courts have gone the other way, making it possible for a circuit split to emerge, precipitating Supreme Court review.
Update: One possible source of the split may be two cases currently pending in the U.S. Court of Appeals for the Fourth Circuit —Fine v. Crouch And Cadell v. Fowle– which involves the state’s refusal to cover sex reassignment surgery and certain other treatments for gender dysphoria under Medicaid or other state-run health care plans. Fourth Circuit I heard both cases en banc Earlier this month, it seemed possible that the Court would disagree with the Sixth Circuit, at least regarding whether these restrictions violated the Equal Protection Clause.
Update 2: It’s arguably already a divided circuit with the US Court of Appeals for the 8th Circuit (at least for now). Last year, in Brandt v. Rutledge, The Eighth Circuit affirmed a preliminary injunction against an Arkansas law prohibiting gender transition treatments for minors. The court too Petition for rehearing of the bank denied. It should be noted that five judges requested a rehearing by the court, and three others indicated that they opposed the rehearing of the court because of the preliminary status of the case, and not because they agreed with the committee’s opinion. (The Eighth Circuit has eleven active-duty judges.) Now that the district court has enforced the law and the case is now on appeal, Arkansas has filed a motion for a preliminary hearing. If this proposal is approved, I suspect the 8th Circuit will approve the 6th and 11th Circuits, thus eliminating the circuit split.