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Over the weekend, a panel of judges on the 6th U.S. Circuit Court of Appeals allowed Tennessee’s ban on gender-affirming care for minors to take effect, blocking the statewide injunction put in place late last month. The preliminary ruling marks the first time that a federal court has permitted a gender-affirming care ban to take effect, according to the ACLU.
The ruling by a three-judge panel in Tennessee comes after similar bans on gender-affirming care have been blocked by multiple federal judges in Florida, Indiana, Kentucky, Arkansas and Alabama. A formal decision on the state’s appeal of the preliminary injunction will take place by the end of September.
The law took effect immediately in Tennessee, as it was originally meant to be in place on July 1. The law prohibits health care providers from administering or offering gender-affirming care to transgender minors, including puberty blockers or hormone treatments. Trans youth currently receiving gender-affirming care, or who had already begun treatment prior to the law going into effect, must halt such care by March.
“This is a very terrible update in the landscape of gender-affirming-care-related litigation,” said Chase Strangio, one of the most prominent attorneys in the country fighting anti-trans bills, in an Instagram post. “This also could have precedential effect on other states in the Sixth Circuit, including potentially Kentucky and Ohio.”
District courts have repeatedly found that gender-affirming-care bans do not hold up in court, Strangio said — as multiple judges have found states lacking in evidence and in expertise when defending care bans. However, the ruling is a “sobering reminder of how precarious trans lives are in this moment, and how precarious our health care is.”
The law going into effect will be devastating for families of trans youth living in Tennessee, Strangio said.
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Sruti Swaminathan, a Lambda Legal staff attorney who has helped to lead the organization’s efforts against Tennessee’s gender-affirming-care ban, said that the news was “deeply disappointing” — but that the legal fight does not end with this ruling.
The 6th Circuit’s decision is only a preliminary determination as to whether plaintiffs are likely to succeed, Swaminathan said. Their team expects to know by September 30 whether the 6th Circuit will ultimately affirm the earlier preliminary injunction granted by the district court, or reverse course and remand.
“All we can say at this point is that the court noted that its decision is preliminary and that it may be wrong,” they said via text message. The law inflicts terrible harm on families, they said.
In the 6th Circuit ruling, Chief Judge Jeffrey Sutton acknowledges that the court’s initial decision may be wrong — and that, by having had only one week to consider the case, the panel of judges may not see their own mistakes.
Sutton, who wrote for the majority of the three-judge panel, said that plaintiffs in the Tennessee case — families of transgender youth — are unlikely to win their case by arguing that banning gender-affirming care violates the due process and equal protection clauses of the 14th Amendment. However, that same argument has succeeded in multiple district courts.
The judges acknowledge this but say only that such consensus in other courts gives them pause — and does not eliminate their own doubts.
Judge Helene White dissented in part from the decision, saying she believes that Tennessee’s law is likely unconstitutional based on sex discrimination under the Equal Protection Clause.
Last month, U.S. District Judge Eli Richardson issued a preliminary injunction to temporarily halt Tennessee from enforcing its health care ban. The injunction allowed trans
youth to access puberty blockers and hormone treatments. Richardson upheld the law’s ban against surgeries for minors, which are exceedingly rare.
Richardson found the law discriminates on the basis of sex and wrote that “parents have a fundamental right to direct the medical care of their children.” Tennessee’s law effectively bans minors from receiving all treatment for gender dysphoria, Richardson said.
Ezra Ishmael Young, a civil rights lawyer and scholar, said that although transgender people and their families are living in a culture of fear right now, a decision by the 6th Circuit would not necessarily lead to the next level — the Supreme Court. The bigger picture of legal fights over gender-affirming care is still one of fairly consistent outcomes in federal courts up until now, he said. And staying an injunction means that Tennessee’s law is no longer paused, but that could still change when the case is ultimately decided.
“I wouldn’t take any one case as a signal of what the Supreme Court’s going to do or what the rest of federal courts are gonna do,” he said.
However, the 6th Circuit’s preliminary ruling may have other immediate impacts for transgender youth — as Kentucky’s attorney general is also asking that court to lift the injunction blocking the state’s ban on gender-affirming care.