Anti-trans laws continue to fall apart under judicial scrutiny

When the U.S. Sixth Circuit Court of Appeals overruled a lower court decision blocking Tennessee’s ban on gender-affirming care for minors and allowed the law to go into effect, it stood alone among federal courts.

During the month of June, federal judges blocked gender-affirming health care bans not just in Tennessee, but also in Kentucky, Arkansas and Indiana. A federal judge struck down Florida’s ban on Medicaid payments covering gender-affirming care. Two of the judges in the cases were appointed by former President Donald Trump, which, Lambda Legal senior attorney Sasha Buchert says, is an indication of the strength of arguments in favor of keeping such care legal.

“These are very conservative parts of the country and appointees from Republican presidents,” Buchert said. “So it’s really clear to me that they are putting aside any personal beliefs or bias they might have and looking at the evidence and understanding the requirement for issuing a preliminary injunction.”

Judge Eli Richardson of the Middle District of Tennessee, the Trump-appointed judge whose decision was overruled by the Sixth Circuit, used an analogy to illustrate his views on the evidence in the Tennessee case.

“It does not take much creative thinking to understand why Defendants’ argument holds no weight,” Richardson wrote in his opinion:

Imagine a law that said that “no Black individuals can attend graduate school.” Under Defendants’ logic, the law would not discriminate based on race, and thus strict scrutiny would not apply, because there are Black individuals who do not want to attend graduate school as well as Black individuals who do want to attend graduate school. But applying a standard other than strict scrutiny would be preposterous because the law clearly prescribes disparate treatment on the basis of race; under the law, no Black individuals could ever attend graduate school whereas individuals from other races potentially could do so. The three-judge panel of the Sixth Circuit that overruled Richardson sidestepped that argument.

“The Act bans gender-affirming care for minors of both sexes,” Chief Judge Jeffrey Sutton wrote in the Sixth Circuit’s opinion. “The ban thus applies to all minors, regardless of their biological birth with male or female sex organs. That prohibition does not prefer one sex to the detriment of the other.”

Sutton left some wiggle room in his opinion, writing: “These initial views, we must acknowledge, are just that: initial. We may be wrong. It may be that the one week we have had to resolve this motion does not suffice to see our own mistakes.”

The Sixth Circuit is simply ignoring the evidence in a way that the lower courts, so far, have not, said Angela Cooper, communications director for the ACLU of Kentucky, a state that also will soon likely have its own ban on gender-affirming care before the court. Kentucky Attorney General Daniel Cameron appealed a district court ruling blocking his state’s ban just the day before the Sixth Circuit issued its ruling in the Tennessee case.

“The way that the opinion read was, you know, We could be wrong, but what’s the harm? and the fact is that there is irreparable harm,” Cooper said.

In the Tennessee case, Richardson laid out the harm caused by allowing the law to go into effect clearly.

The law may provide a deadline of March 31, 2024, by which minors receiving hormone treatments and puberty blockers must be off those treatments, but the harm would start much sooner, Richardson wrote: “The record reflects that the natural consequence of the continuing care exception is that physicians will be winding down care for patients beginning on July 1, 2023. And, of course, this was to be expected given that the exception explicitly forbids changes in treatment that would further combat gender dysphoria. Plaintiffs have therefore demonstrated that they likely would suffer actual and imminent harm beginning on July 1, 2023.”

While Sutton said in his opinion that the Sixth Circuit would expedite a final ruling, trans children in the state are still in a precarious position even if the decision is eventually reversed, Buchert said.

“It’s just terrible in the sense that, for those two months, kids are going to be, families are going to be thrown into the situation where they’re going to have to scramble to get the care that they need for their kids,” Buchert said. “It’s going to have another terrorizing impact on youth in that state.”

And it’s even more terrorizing in the context of everything else the trans community is facing in the current political moment, she said.

“It’s not just health care, it’s also sports, it’s also bathrooms, it’s also identity documents,” Buchert said. “Every possible way that these folks can bring this, what I view as a crusade in targeting trans folks, you know, they are doing it.”

As Cooper acknowledged, trans kids in Kentucky could soon be next.

“We’re celebrating every day that trans kids can get the care that they need,” Cooper said. “So every day that we don’t have a decision at this point is a win for us.”

The implications for trans kids in Kentucky could be even worse than in Tennessee.

“The Tennessee case did not require anyone who was currently receiving hormone therapy or puberty blockers to cease use of those medications until March of 2024, whereas the Kentucky law states that patients have to begin tapering off those treatments immediately,” Cooper told the American Independent Foundation. “Immediately.”

One of these cases is likely to end up before the U.S. Supreme Court, Buchert and Cooper agreed.

Cooper mentioned the court’s ruling in June in 303 Creative LLC v. Elenis, the case of a web designer who in 2016 had sued the state of Colorado over its anti-discrimination law because, she said, it would unfairly force her to create a wedding website for a same-sex couple, against her religious beliefs. The court ruled in her favor despite filings in the case that were said to be based on false information.

“In the 303 Creative case, if I’m not mistaken, the woman who originally brought the case to her local courts invented the scenario. She was never asked to make a website for a [same-sex] couple,” Cooper said. “It rather boggles my mind that the highest court in the land would rule on anything that is predicated upon the complete fictionalization of events.”

Buchert says that the evidence before the court is overwhelmingly in favor of the clinical effectiveness of gender-affirming health care.

“It’s clear that the evidence that has been provided from the defendants is thin, and their justifications are extremely flimsy,” Buchert said.

Published with permission of The American Independent Foundation.