A 2-1 split panel of the U.S. Court of Appeals for the Sixth Circuit ruled Saturday that Tennessee can enforce its ban on gender-affirming healthcare for minors — reversing a lower court’s preliminary injunction, ignoring the guidance of every major medical organization in the United States, and delivering a crushing blow to trans youth and their supporters.
Last month, U.S. District Judge Eli Richardson found that S.B. 1 — which prohibits doctors from providing puberty blockers, hormone therapy, and other forms of gender-affirming care to minors and requires trans youth currently receiving such care to stop within nine months — discriminates on the basis of sex and is therefore unconstitutional, siding with plaintiffs who sued Tennessee. The Trump administration appointee blocked large swaths of the law, which was set to take effect on July 1, from being implemented.
Saturday’s decision, which came in response to an emergency appeal from Republican Tennessee Attorney General Jonathan Skrmetti, temporarily lifts Richardson’s order and allows S.B. 1 to take immediate effect while the lawsuit proceeds.
Skrmetti applauded the appeals court, saying, “The case is far from over, but this is a big win.” The panel plans to reach a final verdict by September 30, at which point the law could be struck down or upheld.
“This ruling is beyond disappointing and a heartbreaking development for thousands of transgender youth, their doctors, and their families,” the American Civil Liberties Union, the ACLU of Tennessee, Lambda Legal, and Akin Gump Strauss Hauer & Feld LLP said in a joint statement. “As we and our clients consider our next steps, we want all the transgender youth of Tennessee to know this fight is far from over and we will continue to challenge this law until it is permanently defeated and Tennessee is made a safer place to raise every family.”
The U.S. Justice Department in April filed a separate lawsuit against the Tennessee law.
Two of the three judges on the Sixth Circuit panel argued that the plaintiffs “have not shown that a right to new medical treatments is ‘deeply rooted in our history and traditions,’ and thus beyond the democratic process to regulate” — echoing language used by U.S. Supreme Court Justice Samuel Alito when he wrote the majority opinion overturning Roe v. Wade and suggesting that transgender rights should be left to the discretion of state lawmakers. Notably, they are the first two federal judges in the country to allow a prohibition on gender-affirming care to fully take hold.
As part of their broader attack on LGBTQ+ people, Republican-controlled legislatures have approved bans or restrictions on gender-affirming care for minors in at least 20 states since 2021, forcing many families and doctors to move or consider relocating. The federal judiciary, which has repeatedly blocked such laws from being enforced, had been a key source of reprieve until Saturday.
In addition to Richardson in Tennessee, judges in five other states — Alabama, Arkansas, Florida, Indiana, and Kentucky — have determined that trans youth healthcare bans are unconstitutional or likely unconstitutional.
Last year, the U.S. Court of Appeals for the Eighth Circuit upheld U.S. District Judge Jay Moody’s preliminary injunction against Arkansas’ ban. Last month, in what was the first ruling on the merits of such a law, Moody concluded the state had violated the U.S. Constitution—namely the Fourteenth Amendment’s equal protection and due process clauses as well as First Amendment rights — and issued a permanent injunction. Republican Arkansas Attorney General Tim Griffin said he plans to appeal the ruling, though it will be heard by the same court that already backed Moody in 2022.
At his Law Dork blog, journalist Chris Geidner explained the shoddy reasoning behind and dangerous implications of Saturday’s 17-page ruling — written by Chief Judge Jeffrey Sutton, an appointee of former President George W. Bush, and endorsed by Judge Amul Thapar, who, like Richardson, was picked by former President Donald Trump.
A truly horrible opinion — on the substance and in the results — from Jeff Sutton overnight. I got in what I could in this initial report, but it truly could be twice as long. https://t.co/4i3iIUeJWj
— Chris Geidner (@chrisgeidner) July 8, 2023
After Sutton cited the aforementioned series of decisions halting multiple gender-affirming care bans around the country, he wrote: “We appreciate their perspectives, and they give us pause. But they do not eliminate our doubts about the ultimate strength of the challengers’ claims.”
Despite being the only court to dismiss plaintiffs’ constitutional arguments, Geidner noted, “Sutton still attempted to claim the mantle of judicial modesty, stating that these are just ‘initial views,’ and adding: ‘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.'”
“Nonetheless,” Geidner pointed out, “Sutton was okay with his court being the sole one in the nation to allow such restrictions to be enforced.”
Dissenting Judge Helene White said that she would have limited Richardson’s statewide injunction so that it applied only to the plaintiffs and the Vanderbilt University Medical Center where they sought care. But unlike Sutton and Thapar, White sided with the many judges who have ruled in similar cases, writing that “the law discriminates based on sex” and “is likely unconstitutional.”
Geidner went on to describe how Saturday’s ruling “alters the legal landscape for these bans, at least temporarily.”
As discussed at the outset, Tennessee is now allowed to enforce S.B. 1, barring any further court orders.
Chase Strangio — a prominent ACLU lawyer working on several challenges to anti-trans laws nationwide, including Tennessee’s — told Geidner that “things are moving quickly and for many families, waiting for legal relief is not an option. The untenable position that adolescents, their caregivers, and their doctors have been put in is not only illegal, but also deeply unethical and dangerous.”
Strangio, the deputy director for transgender justice within the ACLU’s LGBTQ & HIV Project, said that the ACLU “will continue to aggressively litigate these cases in Tennessee and across the country.”
When asked whether the challengers would try to get the stay lifted, either by the full Sixth Circuit or the U.S. Supreme Court, Strangio stated, “We are still evaluating all our options with our primary concern of course being how can we help ensure that people in Tennessee are not cut off from the care they need.”
Sutton’s self-imposed deadline to resolve the case is September 30.
Meanwhile, Kentucky falls within the Sixth Circuit. In a Saturday court filing, Republican Kentucky Attorney General Daniel Cameron cited the panel’s ruling as a reason why U.S. District Judge David Hale should “immediately” issue a stay of his June 28 decision granting a preliminary injunction.
According to Geidner, “The Sixth Circuit also consolidated Cameron’s appeal of the Kentucky injunction in a separate order Saturday, which not only brings that case on the same schedule as the Tennessee appeal but also essentially confirms that Sixth Circuit would almost certainly issue a stay of the Kentucky injunction if the district court does not do so.”
He continued:
Finally, the new, if tentative, lack of unanimity itself matters for two reasons — one rhetorical and one practical. Obviously, having unanimity is its own argument against the constitutionality of these bans. Additionally, although only at the stay request posture, the ruling increases the likelihood that a “circuit split” on these bans will develop — a factor that greatly increases the chances of the U.S. Supreme Court taking up one of these cases.
Few people know that better than Sutton.
It was, after all, Sutton’s 2014 decision in the marriage cases out of Kentucky, Michigan, Ohio, and Tennessee that prompted the U.S. Supreme Court to take up the issue of same-sex couples’ constitutional right to marriage equality. Less than two months before Sutton’s decision in those cases, the Supreme Court denied other states’ requests to hear similar appeals when the federal appeals courts were in unanimity on the issue. After Sutton’s decision created a circuit split, however, the Supreme Court took up the issue.
Geidner’s argument dovetails with one put forth last week by The Intercept’s Natasha Lennard, who warned that the GOP is poised to replicate its anti-abortion strategy — pushing the issue up the judicial ladder until it reaches a potentially favorable audience among the high court’s reactionary majority — to destroy LGBTQ+ rights.
“Republicans have made clear that they plan to brute force their eliminationist assault on trans people into legal reality,” Lennard wrote. “The far right knows how to bend legal paradigms to their will through tireless and well-funded campaigns, working through the minority rule of Republican-led statehouses until eventually reaching the Supreme Court. The same playbook hacked away at abortion access until an established right was wholly overturned, and settled law was ripped to shreds.”
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