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U.S. appeals court lets Kentucky enforce ban on gender-affirming health care for minors

The ruling will force families of trans youth to take their children out of state for health care.

By Will Fritz - August 01, 2023
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Jeffrey Sutton
Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit participates in a panel discussion during the Federalist Society's National Lawyers Convention in Washington, Nov. 17, 2016. (AP Photo/Cliff Owen)

A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit has voted 2-1 to allow Kentucky to continue enforcing its law banning gender-affirming care for minors.

The ruling came down the evening of July 31, more than a week after the plaintiffs in a lawsuit against the state of Kentucky filed an emergency request to block the law — which bans puberty blockers and hormone treatments for transgender minors — from going into effect while their suit goes through the appeals process.

The majority opinion was penned by Sixth Circuit Chief Judge Jeffrey Sutton, who also wrote the majority opinion earlier in July that overturned an injunction against a similar law in Tennessee in the case of L. W., et al. v. Skrmetti, et al. The panel said there were not enough differences between the Kentucky and Tennessee cases to justify a different decision.

The decision means that families of trans youth in Kentucky will now likely have to take their children out of state for health care at least until the end of September, when the court is set to render a final decision on Kentucky’s and Tennessee’s laws.

“Our plaintiffs are really suffering, and the district court found they will be irreparably harmed,” said Shannon Minter, the legal director for the National Center for Lesbian Rights, one of the entities representing the plaintiffs. “Part of the reason the panel stayed the injunction in the Tennessee case was because they found that the plaintiffs could continue to receive care. That is not the case in Kentucky, and that is a big difference. And the panel’s disregard for that is shocking and unconscionable.”

Trans youth in Kentucky have been unable to receive gender-affirming care since June 28, when the state’s ban took effect immediately after a U.S. district court judge reversed his own ruling that had blocked it.

According to the latest ruling, doctors providing gender-affirming care in Kentucky are required either to cease treatment of their patients or to “institute a period during which the minor’s use of the drug or hormone is systematically reduced,” in which case doctors must document in the minor’s medical record that immediate cessation of treatment would harm the patient — unlike in Tennessee, where minors are able to continue receiving gender-affirming care with no limitations until March 2024.

“Looking only at the text of the laws, plaintiffs have a point. But the facts presented to us in Skrmetti were no different from the facts here. There, the district court found that the plaintiffs’ doctors would begin weaning immediately,” Sutton wrote for the majority. “We did not disturb that finding. So, just as in Skrmetti, Kentucky’s weaning period ‘lessens the harm’ to minors ‘who wish to continue receiving treatment.’”

Judge Helene White, who dissented from the panel’s decision, took issue with this point.

“It seems obvious that there is a tremendous difference between a statute like Tennessee’s that allows flexibility regarding treatment decisions and time to explore alternatives and one like Kentucky’s that forces doctors to either discontinue treatment immediately or risk losing their license if a stranger to the doctor-patient relationship second-guesses the doctor’s determination or documentation that interrupting treatment would harm the minor,” White wrote.

The fight is not over yet. The court had previously said it would issue its final decision on Tennessee and Kentucky by Sept. 30. Minter said the plaintiffs in the Kentucky case would file an emergency appeal of the panel’s decision with the entire Sixth Circuit Court of Appeals.

Attorneys for the plaintiffs will file the request for emergency relief by Aug. 2, he said.

Published with permission of The American Independent Foundation.


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