Tennessee’s ban on gender-affirming medical care for transgender minors can go into effect—at least for the time being.
In late June, a district court had halted a ban on minors receiving care such as puberty blockers and hormone therapy on the grounds that the restrictions in the bill, which Tennessee’s Republican Governor Bill Lee signed in March, were unconstitutional because they discriminated on the basis of sex.
But on Saturday, the Sixth US Circuit Court of Appeals temporarily reversed the lower court’s ruling until the appeals court can complete its full review of the ban and the appeal, filed by the state’s GOP attorney general. The higher court said it hopes to finish this review by the end of September.
In the meantime, the ban will take immediate effect. Medical providers caught providing gender affirming hormones, puberty blockers, or gender-affirming surgery to minors in the state face $25,000 fines per violation. The law also allows lawsuits to be brought against a minor’s parents “if the parent of the minor consented to the conduct that constituted the violation on behalf of the minor.” (Children who already received prescriptions before the law went into effect must stop treatment before March 2024.)
“This ruling is beyond disappointing and a heartbreaking development for thousands of transgender youth, their doctors, and their families,” said the American Civil Liberties Union of Tennessee, one of the advocacy groups challenging the ruling on behalf of several individuals, including a family with a trans child. “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.”
Saturday’s ruling is the first time a federal court of appeals has allowed a ban on gender-affirming care to take effect. The ruling deviates from other recent federal rulings on this type of care. As my colleague Madison Pauly recently noted, a federal judge struck down an Arkansas law banning gender-affirming care for kids in late June, pointing to evidence that “the prohibited medical care improves the mental health and well-being of patients.” Judges in Florida, Indiana, and Kentucky have also granted temporary injunctions in the last few weeks that will keep some kinds of gender-affirming medical care available to trans minors while court challenges continue to progress. (The Sixth US Circuit Court of Appeals, which just allowed Tennessee’s ban to temporarily take effect, said Saturday it will issue a final ruling on the pending Kentucky ban when it renders its final appeals decision on Tennessee’s ban.)
The judges who allowed Tennessee’s ban to take effect invoked positions that the Supreme Court majority made in their decision to overturn Roe vs. Wade in 2022, relegating the power to regulate abortion to individual state legislatures. The various advocacy groups representing the plaintiffs in the Tennessee gender-affirming care case “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,” the judges wrote.
Because these judges don’t see gender-affirming care as rooted in American history—despite a decades-long history of trans healthcare availability in the US—they appear to argue that state legislative bodies, rather than individual human ones, get to be responsible for making decisions about whether kids have access to life-saving medical care.