On Saturday, a three-judge panel of the Sixth Circuit broke cursed ground when it became the only court in the country to uphold a ban on gender-affirming treatment for minors. Because gay panic is how Republicans think they’re going to maintain their hold on power as a minority party, and if they can combine it with a bunch of bullshit handwringing about kids’ safety, so much the better!
Tennessee’s ban on puberty blockers for trans kids was set to go into effect July 1, with a 10-month grace period for children already reliant on medication to be forcibly de-transitioned or leave the state. Ignoring all evidence that forcing transgender children to live with their sex assigned at birth is associated with high risk of depression and suicidal ideation, the legislators declared that they “must take action” to deny them access to avoid children becoming “irreversibly sterile, having increased risk of disease and illness, or suffering from adverse and sometimes fatal psychological consequences.”
The “findings” in support of the law are extremely gross, accusing healthcare providers of preying on kids, posting nude photos of trans youth online to advertise their products, and likening them to purveyors of opioids. They even exploited the 2004 suicide of a Canadian man born in 1967 and raised as a girl after a botched circumcision to claim that allowing children to transition 56 years later is somehow experimental.
The statute bars healthcare providers from providing medical care “[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” It allows for prosecution and lawsuits against healthcare providers, with no defense that they were providing medical care in cooperation with parents and their kids, and in accordance with accepted medical protocols.
Families of minor children requiring care sued to enjoin enforcement, and on June 28th, US District Judge Eli Richardson, a Trump appointee, issued an injunction, finding the law unconstitutional. The law clearly discriminates on the basis of sex, denying puberty blockers based on the chromosomal gender of the child, while allowing the same supposedly dangerous and untested treatments to be dispensed widely for other reasons:
Yet, the medical procedures banned by SB1 because they are purportedly unsafe to treat gender dysphoria in minors (which, as discussed above, necessarily means treatment for transgender minors) are not banned when provided to treat other conditions. Indeed, SB1 explicitly permits the very medical procedures that it bans for treatment of gender dysphoria, if those procedures are being used to “treat a minor’s congenital defect, precocious puberty, disease [excluding gender dysphoria], or physical injury.” Tenn. Code Ann. § 68-33-103(b)(1)(A). The record reflects that the same treatments received by minors for gender dysphoria are received by minors also for different conditions. (Adkins Decl. at 17–18) (explaining that cisgender girls with delayed puberty are treated with estrogen, and cisgender girls with polycystic ovarian syndrome (“PCOS”) are treated with testosterone suppression).
This trial court’s carefully reasoned 69-page opinion, allowed the ban on surgical transitions to go into effect, found that the statute violated the due process rights of parents to control their children’s medical care, and unconstitutionally discriminated on the basis of sex. The Sixth Circuit simply made shit up to reach the conclusion that it wanted in a 15-page order in which in managed to pack in several egregious lies about both facts and law.
“Parents, it is true, have a substantive due process right ‘to make decisions concerning the care, custody, and control of their children,’” they wrote, waving aside the trial court’s due process findings. “But the Supreme Court cases recognizing this right confine it to narrow fields, such as education. No Supreme Court case extends it to a general right to receive new medical or experimental drug treatments.”
In fact, parents have the right to manage their children’s medical care, with courts only interceding to force treatment in cases of life and death. Children can’t even get their ears pierced at the mall without parental sign-off, and it seems pretty doubtful that the court would have reached the same conclusion about parental rights if the state had instead mandated that all children received a covid vaccine before registering for public school.
And while the court may be technically correct with regard to “experimental treatments,” it’s simply a lie with regard to medical protocols endorsed by every major medical body in the country. Children have been taking puberty blockers for years without complication, and they certainly don’t cause irreversible sterility. That’s nonsense, although perhaps these dinguses really do believe it, since they seem to be under the impression that girls’ bodies don’t naturally produce testosterone, and boys’ bodies are estrogen-free zones.
The Act bans gender-affirming care for minors of both sexes. 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. See Reed, 404 U.S. at 76. The Act mentions the word “sex,” true. But how could it not? That is the point of the existing hormone treatments—to help a minor transition from one gender to another. That also explains why it bans procedures that administer cross-sex hormones but not those that administer naturally occurring hormones. Tenn. Code Ann. § 68-33-103(b)(1)(A). A cisgender girl cannot transition through use of estrogen; only testosterone will do that. A cisgender boy cannot transition through use of testosterone; only estrogen will do that. The reality that the drugs’ effects correspond to sex in these understandable ways and that Tennessee regulates them does not require skeptical scrutiny.
That is not legal analysis. It’s gobbledygook, and it runs completely counter to the findings of Justice Neil Freakin’ Gorsuch in Bostock v. Clayton County, the case which held that discrimination against gay and trans people constituted discrimination on the basis of sex.
This passage as well is particularly offensive in its wholesale mischaracterization of the drug approval process:
That many members of the medical community support the plaintiffs is surely relevant. But it is not dispositive for the same reason we would not defer to a consensus among economists about the proper incentives for interpreting the impairment-of-contracts or takings clauses of the U.S. Constitution. At all events, the medical and regulatory authorities are not of one mind about using hormone therapy to treat gender dysphoria. Else, the FDA would by now have approved the use of these drugs for these purposes. That has not happened, however, giving us considerable pause about constitutionalizing an answer they have not given or, best we can tell, even finally studied.
That’s simply not how drugs are tested, as US District Judge Robert Hinkle wrote in his order that blocked a similar statute in Florida:
Obtaining FDA approval of a drug is a burdensome, expensive process. A pharmaceutical provider who wishes to market a new drug must incur the burden and expense because the drug cannot be distributed without FDA approval. Once a drug has been approved, however, the drug can be distributed not just for the approved use but for any other use as well. There ordinarily is little reason to incur the burden and expense of seeking additional FDA approval.
From a legal perspective, this order is a hot mess as well, finding that the trial judge abused his discretion when issuing a statewide injunction when only a handful of plaintiffs sued here.
“Absent a properly certified class action, why would nine residents represent seven million?” they ask, gormlessly affecting the posture of federal judges who believe that a class action is required to ban a law that is UNCONSTITUTIONAL ON ITS FACE.
Adding insult to injury, they go on to tut-tut about a rising tide of sweeping injunctions, citing to a bunch of nationwide injunctions issued by US District judges — and these two things are not the same.
In short, the whole thing is a lazy, hacky mess. Which is par for the course when it comes to Judge Amul Thapar, who signed onto the order written by Judge Jeffrey Sutton. Thapar was reportedly on the short list for Trump’s Supreme Court. (Cue the Psycho theme!)
It’s not clear whether the defendants will seek en banc review from the Sixth Circuit, or move for a stay from the Supreme Court. But this order is truly terrible and will certainly be appealed within the next 48 hours.
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