Recently, the Sixth Circuit upheld Tennessee’s ban on so-called gender-affirming medical interventions for minors. Of the many federal courts to have considered the twenty or so state bans, it is the first to reach this conclusion. It is also the first appellate court to weigh in on the issue. Despite critics’ claims, the court appropriately analyzed and balanced governmental and parental interests.

Tennessee’s law says

(1) A healthcare provider shall not knowingly perform or offer to perform on a minor, or administer or offer to administer to a minor, a medical procedure if the performance or administration of the procedure is for the purpose of:

(A) Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or

(B) Treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.

As challenges to state transgender medicine bans have proliferated in Texas, Alabama, Idaho, Arkansas, Indiana, Oklahoma, Nebraska, Kentucky, Montana, and Florida, litigation has yielded unsatisfactory results for the defendant states. At the trial court level, Tennessee fared no better and was preliminary enjoined from enforcing its law against anyone in the state, as the district court found that the law violated the 14th Amendment due process right to parent one’s own children and violated equal protection principles by legislating based on transgender status—something the plaintiffs argued was tantamount to unlawful discrimination on the basis of sex.

On appeal, the Sixth Circuit reversed and overturned the injunction.

In an opinion written by Chief Judge Jeffrey Sutton and joined by Judge Amul Thapar, the court began its opinion with a rebuke of the district court judge for abusing his judicial discretion in granting the plaintiffs’ request for a preliminary injunction. Sutton cited the Supreme Court’s weeks-old opinion in United States v. Hansen and noted that the lower court judge had not only departed from binding precedent requiring a demonstration that no set of circumstances existed under which the law could be valid, but that he had even questioned whether the relevant precedent applied at all. On this point, even dissenting Judge Helene White agreed, writing that the lower court “abused its discretion.”  

Sutton also cited the Supreme Court’s Dobbs decision for the proposition that state efforts to regulate health and welfare are entitled to a “strong presumption of validity,” and he held that the state had a legitimate interest in protecting children from life-altering surgeries and hormone therapies. Averring that Tennessee had rightly and rationally taken the side of caution before permitting doctors to perform irreversible medical treatments on children, the court held that the state had satisfied its burden of demonstrating that there was a rational basis for the law. The court rejected the trial court’s determination that the law triggered heightened scrutiny by discriminating based on sex, pointing out that the law treated all minors of either sex equally.

Sutton also held that the plaintiffs were ultimately unlikely to prevail in their suit. While affirming that there is a fundamental right to parent one’s own children, as the plaintiffs claimed, he noted the Supreme Court has never recognized that right to extend to experimental medical treatments. Because state governments have an abiding interest in protecting their children, the states have broad power, even to “limit parental freedom.”  

The court pointed out that the plaintiffs’ effort to expand the law on parental rights in unprecedented ways was not suitable in the context of the current gender medicine debate. That debate is far from settled, and varying perspectives and democratic debate are needed, especially considering the proliferation of various laws across the country. There isn’t even consensus in the medical community and among regulatory authorities about the propriety of using hormone therapy to treat gender dysphoria, Sutton stated. Despite heavy-handed rhetoric about supposedly life-saving gender care for transgender minors, if there were true consensus, Sutton argued, the FDA would have approved the use of cross-sex hormones and puberty blockers for the purpose of treating gender dysphoria by now, but it hasn’t.

Finally, Judge Sutton referenced comprehensive reviews in Sweden, the United Kingdom, Finland, and Norway, where experts have concluded that so-called gender-affirming medical treatments should not be offered to minors outside of research settings. In America, activists appear to have captured the medical establishment and silenced dissenters within the profession. But that doesn’t mean judges can’t look beyond the alleged consensus to what other countries have found to be true.

Sutton declined to “constitutionaliz[e] new parental rights” and upheld the Tennessee ban.

The next federal appeals court to consider a similar law regulating medicine relating to minors experiencing gender dysphoria will be the Eleventh Circuit, which is set to review a decision striking down a similar Florida law. In Adams v. St. John’s County School Board, that court determined that a school’s sex-segregated bathroom policy was not a violation of the Equal Protection Clause because it—like the Tennessee law—treated all students equally regardless of sex. Because of that, the Eleventh Circuit may join the Sixth Circuit in finding that bans on transgender medical interventions for children under 18 are constitutional.


But pundits have predicted that the Sixth Circuit case is barreling toward the Supreme Court, where the Justices will be faced with the question of where parental rights end and state interests begin when it comes to regulating the treatment of gender dysphoria of minors. 

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