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Gender-affirming care for minors is now illegal in Kentucky. What happens next?

The Sixth Circuit Court of Appeals will render a final decision on bans in both Kentucky and Tennessee by Sept. 30.

By Will Fritz - July 24, 2023
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A protester shows her opposition to Kentucky Senate bill SB150, known as the Transgender Health Bill outside the Senate chamber at the Kentucky State Capitol in Frankfort, Ky., Wednesday, March 29, 2023.
A protester shows her opposition to Kentucky Senate bill SB150, known as the Transgender Health Bill outside the Senate chamber at the Kentucky State Capitol in Frankfort, Ky., Wednesday, March 29, 2023. (AP Photo/Timothy D. Easley)

The plaintiffs in a lawsuit against the state of Kentucky over its law banning gender-affirming care for minors filed an emergency request with an appellate court on July 18 to temporarily block the law from going into effect while their suit goes through the appeals process. This comes less than a week after a district court overturned its own injunction blocking the law.

On June 28, Judge David Hale of the U.S. District Court for the Western District of Kentucky, an Obama appointee, temporarily blocked a portion of the law that was set to go into effect the next day. He reversed his decision on July 14. As a result, trans youth in Kentucky were required to stop receiving gender-affirming care in the state immediately.

The plaintiffs filed an emergency request with the Sixth Circuit Court of Appeals, which is set to rule in the case later this year. Shannon Minter, the legal director for the National Center for Lesbian Rights, one of the entities representing the plaintiffs, said he expects a decision on the emergency motion sometime next week.

The Kentucky attorney general’s office filed a response to the motion on Friday, and the plaintiffs will have until July 24 to reply.

“I imagine the court will rule one way or the other very quickly after that,” Minter said.

A three-judge panel of the Sixth Circuit allowed Tennessee’s ban on gender-affirming care for minors to go into effect on July 8. Hale, the judge in the Kentucky case, cited the decision in his reversal of his own stay, saying that it makes it unlikely the Kentucky case will succeed on appeal.

Minter called the arguments in the Sixth Circuit panel’s Tennessee decision “baffling.” He noted that the Sixth Circuit stands alone in allowing a gender-affirming care ban to go into effect, as lower court judges in Indiana and Arkansas, in addition to Tennessee and Kentucky, have blocked similar laws.

“Every other court to look at this, and one of the judges on that panel, have acknowledged that no matter how you slice it, these are sex-based laws. There’s just no way around that,” Minter said. “The term ‘sex’ is used everywhere in these laws.”

Courts must hold such laws to an extremely high standard of justification before allowing them to go into effect, Minter said: “Basically just saying, hey, there are certain characteristics — race is one, sex is another — that if a law is expressly using that category, we’re going to presume, there’s a presumption that it’s unconstitutional. And in order to be upheld, a state has to overcome that presumption by showing that there is a very strong justification for it.

“What’s so troubling about the Sixth Circuit opinion is it just sidesteps that law,” Minter said.

Sasha Buchert, the director of the Non-Binary and Transgender Rights Project for LGBTQ+ legal rights group Lambda Legal, agreed, saying the court ignored legal precedent.

“It was just plain wrong for the Sixth Circuit to argue that trans people don’t receive heightened scrutiny based on discrimination on the basis of sex or transgender status,” Buchert said. “To ignore the binding case law precedent in the Sixth Circuit Court of Appeals … was just incorrect in my opinion.”

Still, Minter is optimistic the court will recognize that Kentucky’s law is different enough from Tennessee’s to block the former. Tennessee’s law requires trans minors receiving gender-affirming care to cease their treatment by March 2024, while Kentucky requires them to do so immediately.

“We have asked the Sixth Circuit to lift the stay, at least with respect to kids who are currently receiving care. And I am hopeful they will grant that because a key part of their opinion in the stay in Tennessee was that Tennessee’s law allows for continuing care, it has a continuing care exception for kids already receiving care,” Minter said.

Angela Cooper, the communications director for the ACLU of Kentucky, which also represents the plaintiffs in the suit, told the American Independent Foundation that the law has harmed transgender youth every day since it went into effect.

“I can tell you anecdotally that I spoke with someone online who was having trouble filling a testosterone prescription for their younger brother who was trans, before the law had gone into effect, because pharmacists didn’t understand that the law had not gone into effect and that it was still okay to fill a testosterone prescription,” Cooper said. “And those folks went to the minor’s doctor and asked for a recommendation, and that doctor sent them to Cincinnati to get a six- to eight-month supply of testosterone so that they would be able to get through this process.”

Now, every trans child in Kentucky is facing the same scenario. Kentucky Republican Attorney General Daniel Cameron cast it as a victory for children and parents.

“I’m grateful to the district court for doing what the law requires, which is protecting Kentucky kids from the irreversible harms that these experimental drug treatments would cause,” Cameron said in a July 14 statement. “Moving forward, my office will continue to defend Senate Bill 150 and stand up for the right of children to be children, free from the influences of leftist activists and radical gender ideology.”

Buchert said she believes the real goal is to inflict pain on the transgender community.

“It’s just Orwellian doublespeak,” Buchert said. “It’s incredibly perverse to argue that the care that has been demonstrated to be clinically effective, and has improved and saved lives in many cases, is harmful, is just completely incorrect and abusive and dangerous because it’s just propagating this myth that this really isn’t about health care.”

Regardless of the outcome of the emergency request, the Sixth Circuit is set to make its final ruling either invalidating or upholding the Kentucky and Tennessee laws by Sept. 30.

“I am hopeful that upon further reflection, and given the strength of the case law in this area, that the court will acknowledge that this is a sex-based law and then focus on whether there’s a sufficient justification for it,” Minter said. “And if they do that, as they should, we should win, because the medical evidence is overwhelmingly showing that there’s no reason to ban these treatments.”

Published with permission of The American Independent Foundation.


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