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Editors note: This story has been updated to include additional reactions to the appeals court decision.
A federal appeals court has temporarily reinstated Tennessee’s law barring gender-affirming medical care for transgender minors, allowing a recently enacted ban on treatments that include puberty blockers and surgery to take immediate effect.
In a divided opinion, the three-judge panel of the Sixth U.S. Circuit Court of Appeals voted 2-1 to reverse a Nashville federal judge’s order that prevented the law from taking effect July 1. The majority decision signaled the judges are unconvinced Tennessee’s ban is unconstitutional.
Citing debates over transgender care for minors occurring in legislatures across the country, the judges suggested such decisions are best left to individual states, a position that echoes last year’s U.S. Supreme Court’s ruling in Dobbs, eliminating a constitutional right to abortion — a decision repeatedly cited in the panel’s 15-page opinion.
“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, more rather than less input, more rather than less consideration of fair-minded policy approaches,” the decision said.
“To permit legislatures on one side of the debate to have their say while silencing legislatures on the other side of debate under the U.S. Constitution does not further these goals,” read the decision delivered by Chief Judge Jeffrey Sutton and joined by Judge Amul Thapar.
In a two-page dissent, Judge Helene White wrote that Tennessee’s law likely discriminates on the basis of sex, in violation of the Equal Protection Clause of the U.S. Constitution, noting the same medical procedures and drugs being denied transgender youth may be used for other medical care.
“I fail to see how the state can justify denying access to hormone therapies for treatment of minor(s) gender dysphoria while permitting access to others, especially in light of the district court’s robust factual findings on the benefits of these treatments for transgender youth,” White wrote.
But White sided with her colleagues in one respect: concluding the Nashville federal judge abused his discretion in ordering a statewide halt of the law when plaintiffs in the non-class action suit consisted of just nine people: three sets of parents, their minor transgender children and a doctor who provides gender-affirming care.
The majority’s decision marks the first time a federal court has allowed a ban on gender-affirming care to take effect. Federal courts have blocked similar bans in Arkansas, Florida, Indiana and Kentucky. On Saturday, advocacy groups that have fought in court in against Tennessee’s ban called it “beyond disappointing and a heartbreaking development for thousands of transgender youth, their doctors, and their families.”
“As we and our clients consider our next steps, we want all the transgender youth of Tennessee to know this fight is far from over and we will continue to challenge this law until it is permanently defeated and Tennessee is made a safer place to raise every family,” said a statement from the ACLU of Tennessee, the American Civil Liberties Union, Lambda Legal and the law firm Akin Gump Strauss Hauer & Feld.
One Tennessee LGBTQ rights advocate called the decision “state-sanctioned cruelty against Tennessee families, who are only seeking health care for their kids as best they can.”
“They’ve faced unrelenting confusion and heartbreak this year because they’re afraid the state will take away their ability to live free and happy lives in the Volunteer State,” said Molly Rose Quinn, executive director of OUT Memphis. “We are doubling down on navigation services and support for trans youth and their families. Don’t give up.”
The Sixth Circuit is being asked only to weigh in on whether the preliminary injunction by a federal judge in Nashville, which prevented the law from taking effect, should be lifted while the lawsuit continues in the lower court.
Lawyers for the Tennessee Attorney General argued, in part, that there was no need for an immediate injunction because the law calls for a temporary “wind down” period allowing some existing transgender patient care until March 2024. In practice, it is unknown whether physicians will be willing to provide such care. Vanderbilt University Medical Center, the largest provider of gender affirming care for minors in Tennessee, has already said it will cease providing care if the law is not halted.
In recent weeks, parents of transgender kids reported they had received notices Vanderbilt had shared their child’s medical records to comply with demands the state attorney general. It soon emerged publicly that Tennessee Attorney General Jonathan Skrmetti made sweeping demands for patient, doctor and staff records from Vanderbilt University’s transgender clinic, a request that has raised questions about privacy and safety for many families.
The decision, published Saturday, was swiftly delivered in response to an emergency petition by the Tennessee attorney general and remains temporary. The court will set an expedited schedule to consider the case more fully and expects to issue a decision before Sept. 30.
“These initial views, we must acknowledge, are just that: initial,” the majority’s opinion concluded. “We may be wrong. It may be that the one week we have had to resolve this motion does not suffice to survive our own mistakes.”
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