In a 2-1 decision, the Sixth Circuit Court of Appeals allowed Tennessee’s ban on gender-affirming care for minors to take effect Saturday, nearly a week after a federal district judge temporarily blocked the law. This decision marks the first time a federal court has allowed a ban on gender-affirming care to take effect after it was blocked by lower courts.
The Sixth Circuit sided with Tennessee Attorney General Jonathan Skrmetti, who appealed to the court hours after the preliminary injunction was granted.
The court cites Dobbs v. Jackson nine times in its decision, arguing that the law likely does not discriminate on the basis of sex because “the regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny.” The opinion also posits that the plaintiffs have not demonstrated that gender-affirming care is “deeply rooted in our history and traditions.”
In her dissenting opinion, Judge Helene White argues that the law likely does discriminate based on sex, since it allows hormone therapy for cisgender and intersex kids, but not for transgender kids. White also points out that “until today, every federal court addressing similar laws reached the same conclusion.”
“I feel hurt. I feel like they … don’t see me as human,” says plaintiff L.W. As a 15-year-old transgender girl, she’s worried about access to hormone therapy. “Without gender-affirming care, I wasn’t really able to be myself because I physically wasn’t myself. And it’s very scary going through that.”
Gender-affirming treatments like puberty blockers and hormone therapy have been championed by doctors, including the American Academy of Pediatrics, American Medical Association, American Academy of Child and Adolescent Psychiatry and American Counseling Association, among others.
“That many members of the medical community support the plaintiffs is surely relevant,” the Sixth Circuit opinion says. “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.”
In a statement, AG Skrmetti calls the decision “a big win,” but says the case is far from over. The Sixth Circuit Court’s stay is temporary. The court has until Sept. 30 to reach a final decision on whether the law will stay in effect while the lawsuit continues.
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