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Federal appeals court upholds gender-affirming care bans in Tennessee & Kentucky

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A federal appeals court has upheld laws banning gender-affirming care for minors in Tennessee and Kentucky.

On Thursday, the Sixth U.S. Circuit Court of Appeals in Cincinnati, Ohio, which hears appeals from both states, voted 2–1 to uphold the anti-trans laws, Reuters reports. Chief Judge Jeffrey Sutton and Judge Amul Thapar rejected arguments made on behalf of the families of transgender children that the laws discriminate against transgender people based on sex, violating the Constitution’s Equal Protection Clause.

In her dissent, Judge Helene White said that the laws “cannot pass constitutional muster” and “intrude on the well-established province of parents to make medical decisions for their minor children.”

Tennessee Republicans passed the state’s S.B. 1 in February and it was signed into law by Gov. Bill Lee (R) in early March. In addition to banning Tennessee doctors from providing gender-affirming care, including puberty blockers and hormone therapy, to anyone under the age of 18, it also requires trans young people who are already receiving gender-affirming care to end their treatment by March 31, 2024, effectively forcing them to detransition.

Kentucky’s S.B. 150 passed in March after state Republicans overrode a veto by Gov. Andy Beshear (D).

Both laws saw legal challenges brought on behalf of the families of trans young people and were blocked by trial court judges. But in July, the Sixth Circuit voted 2–1 to allow the Tennessee law to go into effect while the court challenged proceeded. Similarly, the Sixth Circuit ruled in August that Kentucky could enforce its gender-affirming care ban.

Legal challenges brought by the ACLU of Kentucky and Tennessee, along with other organizations, in both cases were consolidated in July for consideration at the Sixth Circuit.

Every major medical organization in the U.S. has recognized that gender-affirming healthcare — which can include puberty blockers and hormone therapy — is evidence-based, safe, effective, and can be medically necessary to treat gender dysphoria in young people.

However, in his Thursday ruling, Sutton wrote that gender dysphoria “is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two. Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments.”

“Today’s decision is disappointing and difficult to square with Supreme Court and Sixth Circuit cases holding that parents have both a duty and a right to safeguard their children’s health,” Shannon Minter, legal director of the National Center for Lesbian Rights (NCLR), which brought the challenge to the Kentucky law along with the ACLU, said in a statement. “This is a serious blow to one of the most cherished principles of our legal system, which is that parents, not government officials, should make medical decisions for their children.”

“We’re disappointed with the court’s ruling,” ACLU of Kentucky legal director Corey Shapiro said. “The majority ignored the extensive evidence from the actual medical experts and the trial court who all agreed that this care is medically necessary, effective, and appropriate. While it is disheartening that the panel believes it is constitutional for the government to prohibit transgender youth from accessing such necessary health care, this is only a temporary setback. We will continue fighting to restore that care permanently in the commonwealth.”

“This is a devastating result for transgender youth and their families in Tennessee and across the region,” Lambda Legal, the American Civil Liberties Union, the ACLU of Tennessee, and Akin Gump Strauss Hauer & Feld LLP said in a joint statement. “The disastrous impact of Tennessee’s law and all others like it has already been felt in thousands of homes and communities. Denying transgender youth equality before the law and needlessly withholding the necessary medical care their families and their doctors know is right for them has caused and will continue to cause serious harm. We are assessing our next steps and will take further action in defense of our clients and the constitutional rights of transgender people in Tennessee and across the country.”

The ACLU of Tennessee notes that similar bans on gender-affirming care for minors have been blocked by district courts in Arkansas, Alabama, Florida, Georgia, and Indiana, while a federal court in Arkansas struck down that state’s ban in June.

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