L. W. v. Jonathan SkrmettiL. W. v. Jonathan Skrmetti
Plaintiffs-Appellees,
v.
JONATHAN THOMAS SKRMETTI, in his official capacity as the Tennessee Attorney General and Reporter, et al.,
Defendants-Appellants,
UNITED STATES OF AMERICA,
Intervenor-Appellee.
___________________________________________
JANE DOE 1, et al.,
Plaintiffs-Appellees,
v.
WILLIAM C. THORNBURY, JR., M.D., in his official capacity as the President of the Kentucky Board of Medical Licensure, et al.,
Defendants,
COMMONWEALTH OF KENTUCKY ex rel. DANIEL CAMERON, Attorney General of the Commonwealth of Kentucky,
Intervenor-Appellant.
No. 23-5600
No. 23-5609
No. 23-5609 On Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:23-cv-00230—David J. Hale, District Judge.
Argued: September 1, 2023
Decided and Filed: September 28, 2023
Before: SUTTON, Chief Judge; WHITE and THAPAR, Circuit Judges.
_________________
COUNSEL
ARGUED: Clark L. Hildabrand, OFFICE OF THE TENNESSEE ATTORNEY GENERAL & REPORTER, Nashville, Tennessee, for Tennessee Appellants. Barbara Schwabauer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor-Appellee. Chase Strangio, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for L. W. Appellees. Matthew F. Kuhn, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Intervenor-Appellant. Stephanie Schuster, MORGAN, LEWIS & BOCKIUS, LLP, Washington, D.C., for Jane Doe I Appellees.
ON BRIEF: Clark L. Hildabrand, Steven J. Griffin, Brooke A. Huppenthal, OFFICE OF THE TENNESSEE ATTORNEY GENERAL & REPORTER, Nashville, Tennessee, Adam K. Mortara, LAWFAIR LLC, Nashville, Tennessee, Cameron T. Norris, Tiffany H. Bates, CONSOVOY MCCARTHY PLLC, Arlington Virginia, for Tennessee Appellants. Barbara Schwabauer, Bonnie I. Robin-Vergeer, Jonathan L. Backer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor-Appellee. Joshua A. Block, Chase Strangio, James D. Esseks, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, Stella Yarbrough, Lucas Cameron-Vaughn, ACLU FOUNDATION OF TENNESSEE, Nashville, Tennessee, Sruti J. Swaminathan, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., New York, New York, Tara Borelli, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Decatur, Georgia, Christopher J. Gessner, David Bethea, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., Dean L. Chapman, Jr., AKIN GUMP, New York, New York, for L. W. Appellees. Victor B. Maddox, Matthew F. Kuhn, Alexander Y. Magera, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Intervenor-Appellant. Corey Shapiro, Heather Gatnarek, Crystal Fryman, Kevin Muench, ACLU OF KENTUCKY FOUNDATION, Louisville, Kentucky, Stephanie Schuster, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., Shannon Minter, Christopher F. Stoll, NATIONAL CENTER FOR LESBIAN RIGHTS, San Francisco, California, for Jane Doe I Appellees. Christopher Mills, SPERO LAW LLC, Charleston, SOUTH
SUTTON, C.J., delivered the opinion of the court in which THAPAR, J., joined. WHITE, J. (pp. 42–73), delivered a separate dissenting opinion.
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OPINION
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SUTTON, Chief Judge. At issue in these two cases is whether the United States Constitution prohibits Kentucky and Tennessee from limiting certain sex-transition treatments for minors experiencing gender dysphoria.
A.
Before gender dysphoria had a name, the medical profession offered a variety of treatments for individuals suffering from a lack of alignment between their biological sex and perceived gender. In the 1960s and 1970s, cross-sex hormones and sex-reassignment surgeries emerged as “the option of choice” to treat the condition. Walter O. Bockting & Eli Coleman, A Comprehensive Approach to the Treatment of Gender Dysphoria, 5 J. Psych. & Hum. Sexuality 131, 132 (1992). A 1979 study, however, concluded that these treatments did not alleviate the mental distress caused by the condition, prompting care centers to pull back on these forms of care. See Jeremi M. Carswell et al., The Evolution of Adolescent Gender-Affirming Care: An Historical Perspective, 95 Hormone Rsch. Paediatrics 649, 652 (2022). Given the “irreversibility of hormonal and surgical sex reassignment,” many providers instead prioritized more holistic approaches that explored a range of options—including therapy and living as the desired gender—before considering physical interventions. Bockting & Coleman, supra, at 136; id. at 134, 143.
In 1979, the Harry Benjamin Society, now called the World Professional Association for Transgender Health, published the first standards of care for treating gender dysphoria. Standards of Care: The Hormonal and Surgical Sex Reassignment of Gender Dysphoric Persons (1st ed. 1979). In line with the prevailing caution practiced by healthcare providers, the standards permitted hormonal and surgical interventions only for adults and only after the patients received other types of care. Id. §§ 4.3.4, 4.14.4, 4.15.1. Because hormone treatments have “some irreversible effects,” they were not permitted until an individual received therapy and lived as the desired gender for three months. Id. §§ 4.4.2, 5.1.1, 5.1.2, 5.1.3. Invasive surgery required more. Non-genital surgeries required three months of therapy and at least six months of living as the desired gender, while genital surgeries required therapy and a full year of living comfortably as the desired gender. Id. §§ 5.1.2, 5.1.3, 5.2.2, 5.2.3, 5.3.4.
In 1980, the American Psychiatric Association first classified gender dysphoria as a medical condition, initially calling it “gender identity disorder” and describing it as a “persistent
Over the next two decades or so, various medical organizations, most prolifically the World Professional Association for Transgender Health, offered new standards of care. Throughout this period, the Association expressed caution about using medical interventions that would alter the secondary characteristics of an individual‘s biological sex. The standards also recognized various non-physical treatments for gender dysphoria, including support groups, participation in recreational activities of the desired sex, cross-dressing, dressing unisexually, hair removal or application, vocal therapy, changes in grooming, breast binding, and prostheses. See Standards of Care for Gender Identity Disorders 21, 23, 26, 30, 35 (5th ed. 1998). During these twenty years, the Association‘s standards of care continued to support hormonal and surgical treatments only for adults and not for minors. See, e.g., Standards of Care: The Hormonal and Surgical Sex Reassignment of Gender Dysphoric Persons § 4.14.4 (4th ed. 1990). Such treatments, the guidelines explained, are “extensive in [their] effects,” “invasive to the integrity of the human body,” and “are not, or are not readily, reversible.” Id. § 4.1.1.
What the medical profession has come to call gender-affirming care was not available for minors until just before the millennium. In the late 1990s, healthcare workers in the Netherlands began using puberty blockers—designed to slow the development of male and female physical features—to treat gender dysphoria in minors. Carswell et al., supra, at 652-53. The “Dutch Protocol” permitted puberty blockers for minors during the early stages of puberty, allowed hormone therapy at 16, and allowed genital surgery at 18. Id. at 652-53.
In 1998, the World Professional Association for Transgender Health revised its standards to endorse the Dutch Protocol. See Standards of Care for Gender Identity Disorders 19 (5th ed. 1998). The standards permitted puberty blockers, considered “reversible,” at the onset of puberty when taken in conjunction with psychotherapy. Standards of Care for Gender Identity Disorders 10 (6th ed. 2001). They permitted cross-sex hormones, a “partially reversible”
In 2012, the World Professional Association for Transgender Health relaxed these guidelines further. The new standards permitted cross-sex hormones for adults and minors, including minors under the age of 16. See Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People 19-20 (7th ed. 2012); Wylie C. Hembree et al., Endocrine Society Clinical Practice Guideline, 102 J. Clinical Endocrinology & Metabolism 3869, 3883 (2017). Around this time, some American doctors began using these treatments for children. Ky. R.17-3 at 15.
Today, these guidelines permit the use of puberty blockers or cross-sex hormones from the early stages of pubertal development. See Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, 23 Int‘l J. of Transgender Health S1, S64-65 (2022) (“2022 WPATH Guidelines“); Endocrine Society Clinical Practice Guideline, supra, at 3880, 3883. Therapy or time spent living as the desired gender is no longer required before or along with such treatments. 2022 WPATH Guidelines, supra, at S48. Many surgical treatments initially restricted to adults have become available to minors in the past six years, often without any prerequisites for therapy or cross-sex hormone treatments. See Endocrine Society Clinical Practice Guideline, supra, at 3894; 2022 WPATH Guidelines, supra, at § 6.12, S66. On the whole, the standards of care for minors “have become less restrictive over the course of time so that fewer procedures require mental health evaluation, fewer recommendation letters are required, and more types of professionals are viewed as capable of providing such evaluations.” Tonia Poteat et al., History and Prevalence of Gender Dysphoria, in Transgender Medicine 1, 14-15 (eds. Leonid Poretsky & Wylie C. Hembree, 2019).
In the last few years, the number of doctors prescribing sex-transition treatments and the number of children seeking them have grown. See 2022 WPATH Guidelines, supra, at S43. The number of private clinics that specialize in hormonal and surgical treatments, for example, has “grown from just a few a decade ago to more than 100 today.” Ky. R.47-3 at 1. The percentage
B.
In addition to sharing a border, Kentucky and Tennessee share an interest in regulating the medical treatments offered to children suffering from gender dysphoria. Tennessee was the first of the two States to regulate the treatments.
Tennessee. On March 2, 2023, Tennessee enacted the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity.
These findings convinced the legislature to ban certain medical treatments for minors with gender dysphoria. A healthcare provider may not “administer or offer to administer” “a medical procedure” to a minor “for the purpose of” either “[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor‘s sex” or “[t]reating purported discomfort or distress from a discordance between the minor‘s sex and asserted identity.”
The Act contains two relevant exceptions. It permits the use of puberty blockers and hormones to treat congenital conditions, precocious puberty, disease, or physical injury.
The Act authorizes the Tennessee Attorney General to enforce these prohibitions.
Three transgender minors, their parents, and a doctor sued several Tennessee officials, claiming the Act violated the United States Constitution‘s guarantees of due process and equal protection. L.W. is 15 years old, was born a biological male, and for several years has identified as a girl. A therapist diagnosed L.W. with gender dysphoria in December 2020, and a specialist prescribed puberty blockers in August 2021 and estrogen hormone therapy in September 2022. John Doe is 12 years old, was born a biological female, and has identified as a boy for many years. A therapist diagnosed Doe with gender dysphoria in 2020, and, after enduring considerable anxiety about going through puberty, Doe received puberty blockers in February 2021. Ryan Roe is 15, was born a biological female, identifies as a boy, and has suffered serious anxiety about going through puberty as a female. A specialist began prescribing testosterone for Roe at 14. All three adolescents say that this care has provided considerable comfort to them.
The plaintiffs challenged the Act‘s bans on puberty blockers, hormone therapy, and sex-transition surgery for children. They moved for a preliminary injunction to prevent those features of the Act from going into effect on July 1, 2023.
Kentucky. On March 29, 2023, the Kentucky General Assembly overrode Governor Andy Beshear‘s veto to pass “An Act Relating to Children.” See 2023 Ky. Acts 775 (codified at
Under the Kentucky Act, a medical provider may not offer certain types of care “for the purpose of attempting to alter the appearance of, or to validate a minor‘s perception of, the minor‘s sex, if that appearance or perception is inconsistent with the minor‘s sex.”
The Act provides two methods of enforcement. A regulatory agency “shall revoke” the license or certification of a provider who violates the Act.
Seven transgender minors and their parents sued various Kentucky officials, claiming that the Act violated their federal constitutional rights to due process and equal protection. Much like the Tennessee children, the Kentucky children have experienced gender dysphoria and have found (or anticipate finding) puberty blockers and hormones to be helpful treatments for it. All of these plaintiffs fear the return of their gender dysphoria, depression, and other illnesses if they cannot access these treatments. They challenged the Act‘s ban on puberty blockers and hormone therapy, but they did not challenge its regulation of surgical procedures. They sought a preliminary injunction to prevent those features of the Act from going into effect on June 29, 2023.
On June 28, the district court granted a preliminary injunction. As to the due process claim, the court held that the Act infringed on the fundamental right of parents to obtain medical treatment for their children. As to the equal protection claim, it concluded that the Act discriminates based on sex and that the State could not meet the rigorous scrutiny that comes with such regulations. The court concluded that the Act‘s ban on drug and hormone therapy was facially unconstitutional and issued a statewide injunction.
Kentucky appealed and moved for a stay of the injunction. The district court granted the stay, and we declined to lift it, Doe 1 v. Thornbury, 75 F.4th 655, 656-57 (6th Cir. 2023) (per
II.
A preliminary injunction is “an extraordinary remedy.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). Courts may grant one only if the plaintiffs present “a clear showing” that they are likely to prevail on the merits, that they face irreparable harm without an injunction, that the balance of equities favors them, and that the public interest supports an injunction. Id. As is often the case in a constitutional challenge, the likelihood-of-success inquiry is the first among equals. Roberts v. Neace, 958 F.3d 409, 416 (6th Cir. 2020) (per curiam). In this instance, it is largely dispositive. While we assess the trial court‘s “ultimate decision” whether to grant a preliminary injunction for “abuse of discretion,” we assess its legal determinations with “fresh eyes.” Arizona v. Biden, 40 F.4th 375, 381 (6th Cir. 2022).
III.
The claimants face several initial headwinds in obtaining relief. First, they do not argue that the original fixed meaning of the due process or equal protection guarantees covers these claims. That prompts the question whether the people of this country ever agreed to remove debates of this sort—over the use of innovative, and potentially irreversible, medical treatments for children—from the conventional place for dealing with new norms, new drugs, and new public health concerns: the democratic process. Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable Constitution to occupy the field.
Second, while the challengers do invoke constitutional precedents of the Supreme Court and our Court in bringing this lawsuit, not one of them resolves these claims. In each instance, they seek to extend the constitutional guarantees to new territory. There is nothing wrong with that, to be certain. But this reality does suggest that the key premise of a preliminary injunction—a showing of a likelihood of success on the merits—is missing. Constitutionalizing new areas of American life is not something federal courts should do lightly, particularly when
Third, the States are indeed engaged in thoughtful debates over this issue, as the recent proliferation of legislative activity across the country shows. By our count, nineteen States have laws similar to those in Tennessee and Kentucky, all of recent vintage. See
Most of this legislative activity occurred within the last two years. Failure to allow these laws to go into effect would start to grind these all-over-the-map gears to a halt. Given the high stakes of these nascent policy deliberations—the long-term health of children facing gender dysphoria—sound government usually benefits from more rather than less debate, more rather than less input, more rather than less consideration of fair-minded policy approaches. To permit legislatures on one side of the debate to have their say while silencing legislatures on the other side of the debate under the Constitution does not further these goals. That is all the more critical in view of two realities looming over both cases—the concept of gender dysphoria as a medical condition is relatively new and the use of drug treatments that change or modify a child‘s sex characteristics is even more recent. Prohibiting citizens and legislatures from
IV.
As doctors, legislators, and citizens work through the risks and benefits of various treatments for children with gender dysphoria, lawyers and litigants debate the right standard for reviewing such constitutional challenges. Sometimes the Constitution is neutral about an issue, say whether a state should embrace policies that lean conservative or progressive, regulatory or deregulatory, fiscally tight or lax, republican or democratic. Other times the Constitution is not neutral about an issue, say over free speech, voting, and race discrimination. When the Constitution is neutral about an issue, legislatures have considerable discretion to regulate the matter. In that setting, the key premise of a democracy prevails—that the people‘s electoral representatives will identify the strengths and weaknesses of any policy and presumptively be allowed to enact it, the antidote for mistakes being the passage of time and the good sense and self-interest of election-tenured public officials to fix them. When the Constitution is not neutral about the issue, skeptical judicial review applies to the law from the start.
The threshold question is whether the Constitution is neutral about legislative regulations of new and potentially irreversible medical treatments for minors. The plaintiffs claim that it is not neutral on this issue under the due process and equal protection guarantees. We consider each theory in turn.
A.
Due process. “No State,” the Fourteenth Amendment says, shall “deprive any person of life, liberty, or property, without due process of law.”
No such expansion is warranted here. This country does not have a “deeply rooted” tradition of preventing governments from regulating the medical profession in general or certain treatments in particular, whether for adults or their children. Quite to the contrary in fact. State and federal governments have long played a critical role in regulating health and welfare, which explains why their efforts receive “a strong presumption of validity.” Heller v. Doe, 509 U.S. 312, 319 (1993); see Kottmyer v. Maas, 436 F.3d 684, 690 (6th Cir. 2006). State governments have an abiding interest “in protecting the integrity and ethics of the medical profession,” Glucksberg, 521 U.S. at 731, and “preserving and promoting the welfare of the child,” Schall v. Martin, 467 U.S. 253, 265 (1984) (quotation omitted). These interests give States broad power, even broad power to “limit[] parental freedom,” Prince v. Massachusetts, 321 U.S. 158, 167 (1944); see Parham v. J.R., 442 U.S. 584, 605-06 (1979), when it comes to medical treatment, cf. Watson v. Maryland, 218 U.S. 173, 176 (1910).
This opening presumption of legislative authority to regulate healthcare gains strength in areas of “medical and scientific uncertainty.” Gonzales v. Carhart, 550 U.S. 124, 163 (2007); see also Marshall v. United States, 414 U.S. 417, 427 (1974); cf. Collins v. Texas, 223 U.S. 288, 297-98 (1912). In that setting, courts face two risks of error, not just one—first, that they will assume authority over an area of policy that is not theirs to regulate and, second, that
Confirming all of this is the reality that we have developed substantial regulatory bodies designed to approve and regulate new drugs and medical treatments. At the federal level, the Food and Drug Administration determines when new drugs are safe for public use. Neither doctors, adults, nor their children have a constitutional right to use a drug that the FDA deems unsafe or ineffective. See Abigail All. for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 703, 706 (D.C. Cir. 2007) (en banc). That is true even if the FDA bars access to an experimental drug that a doctor believes might save a terminally ill patient‘s life. Id. at 701, 711; see also id. at 710 & n.18 (collecting similar cases). Nor is it unusual for the FDA to permit drugs to be used for some purposes but not others, or to allow some drugs to be used by adults but not by children. See, e.g.,
At the local level, we have more of the same. There is a long tradition of permitting state governments to regulate medical treatments for adults and children. So long as a federal statute does not stand in the way and so long as an enumerated constitutional guarantee does not apply, the States may regulate or ban medical technologies they deem unsafe. See Wyeth v. Levine, 555 U.S. 555, 574-75, 581 (2009) (vaccine labels); Vacco v. Quill, 521 U.S. 793, 808-09 (1997) (assisted suicide); Medtronic, Inc. v. Lohr, 518 U.S. 470, 485-86 (1996) (pacemaker design); Cruzan v. Dir., Mo. Dep‘t of Health, 497 U.S. 261, 281-82 (1990) (withdrawal of life support).
Washington v. Glucksberg puts a face on these points. 521 U.S. 702. Harold Glucksberg claimed that Washington State‘s ban on physician-assisted suicide violated his patients’ due process rights. Id. at 707-08. The Court disagreed. It allowed the State to prohibit individuals from receiving the drugs they wanted and their physicians wished to provide, all despite the “personal and profound” liberty interests at stake and all despite the reality that the drugs at issue
Abigail Alliance hews to this path. The claimant was a public interest group that maintained that terminally ill patients had a constitutional right to use experimental drugs that the FDA had not yet deemed safe and effective. 495 F.3d at 697. As these “terminally ill patients and their supporters” saw it, the Constitution gave them the right to use experimental drugs in the face of a grim health prognosis. Id. at 697-701. How, they claimed, could the FDA override the liberty of a patient and doctor to make the cost-benefit analysis of using a drug for themselves given the stark odds of survival the patient already faced? Id. at 700-01. In a thoughtful en banc decision, the D.C. Circuit rejected the claim. The decision invoked our country‘s long history of regulating drugs and medical treatments, concluding that substantive due process has no role to play. “Our Nation‘s history and traditions,” the decision explained, “have consistently demonstrated that the democratic branches are better suited to decide the proper balance between the uncertain risks and benefits of medical technology, and are entitled to deference in doing so.” Id. at 713; see id. at 710-11 & n.18 (collecting similar cases); see also Dent v. West Virginia, 129 U.S. 114, 121-24 (1889) (explaining how regulation of medical and other professions was a power of the States “from time immemorial“); Ass‘n of Am. Physicians & Surgeons v. FDA, 13 F.4th 531, 534-35 (6th Cir. 2021) (explaining that Congress continued to “leave[] the regulation of doctors to the states” following the Fourteenth Amendment).
Parental rights do not alter this conclusion because parents do not have a constitutional right to obtain reasonably banned treatments for their children. Plaintiffs counter that, as parents, they have a substantive due process right “to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion). At one level of generality, they are right. Parents usually do know what‘s best for their children and in most matters (where to live, how to live, what to eat, how to learn, when to be exposed to mature subject matter) their decisions govern until the child reaches 18. But becoming a parent does not create a right to reject democratically enacted laws. The key problem is that the claimants overstate the parental right by climbing up the ladder of generality to a perch—in which parents control all drug and other medical treatments for their children—that the case law and our traditions simply do not support. Level of generality is everything in constitutional law, which is why the Court requires “a ‘careful description’ of the asserted fundamental liberty interest.” Glucksberg, 521 U.S. at 721 (quotation omitted).
So described, no such tradition exists. The government has the power to reasonably limit the use of drugs, as just shown. If that‘s true for adults, it‘s assuredly true for their children, as also just shown. This country does not have a custom of permitting parents to obtain banned medical treatments for their children and to override contrary legislative policy judgments in the
Kanuszewski v. Michigan Department of Health & Human Services does not alter this conclusion. 927 F.3d 396 (6th Cir. 2019). A Michigan law required healthcare organizations to collect blood samples from newborns and to store the samples for future use, all without parental consent and all without any explanation why the law advanced the health of the babies. Id. at 403-04. This compulsory storage program, we held, violated nonconsenting parents’ rights “to make decisions concerning the medical care of their children.” Id. at 418. But there is a night and day difference between that program and this one. The Michigan program compelled medical care, while the Tennessee and Kentucky laws restrict medical care. It is one thing for the State to impose a procedure on someone; it is quite another to deem it unsafe and prohibit it. All of this explains why the laws at issue here, in marked contrast to the Michigan law, rest on the legislative judgment that they will protect “the health of the child.” Id., 927 F.3d at 421; see
Other courts have drawn the same sensible line, noting a material distinction between the State effectively sticking a needle in someone over their objection and the State prohibiting the individual from filling a syringe with prohibited drugs. The cases simply do not support the claimants’ position. They “reject[] arguments that the Constitution provides an affirmative right of access to particular medical treatments reasonably prohibited by the Government.” Abigail All., 495 F.3d at 710 & n.18 (collecting similar cases); see U.S. Citizens Ass‘n v. Sebelius, 705 F.3d 588, 599 (6th Cir. 2013); Nat‘l Ass‘n for Advancement of Psychoanalysis v. Cal. Bd. of Psych., 228 F.3d 1043, 1050 (9th Cir. 2000); Sammon v. N.J. Bd. of Med. Exam‘rs, 66 F.3d 639, 645 & n.10
Parham v. J. R. does not help the claimants either. 442 U.S. 584. Georgia empowered parents to commit their children to state mental institutions. Id. at 587, 605. Several minors sued, claiming that their “liberty interest in not being confined” cut back on any parental right to make decisions for a child. Id. at 600. The claim was resolved on procedural, not substantive, due process grounds. See id. at 599-600, 620 n.23. Recognizing that States possess “constitutional control over parental discretion,” the Court held that States must provide “some kind of inquiry“—a classic procedural due process form of relief—to guard against “the risk of error inherent in the parental decision to have a child institutionalized for mental health care.” Id. at 603, 606. This traditional due process ruling does not support today‘s untraditional request for relief under substantive due process. Nothing in Parham supports an affirmative right to receive medical care, whether for a child or an adult, that a state reasonably bans. See Cruzan, 497 U.S. at 286-87 (noting that Parham “allowed” a state to credit parents’ health decisions but did not create “a constitutional requirement” that a state “recognize such decisionmaking“).
The plaintiffs insist that these treatments are not new and do not involve experimental care. Even if that were true, that alone does not give parents a fundamental right to acquire them. As long as it acts reasonably, a state may ban even longstanding and nonexperimental treatments for children. It is difficult, at any rate, to maintain that these treatments have a meaningful pedigree. It has been about a decade since the World Professional Association for Transgender Health, the key medical organization relied upon by the plaintiffs, first said that hormone treatments could be used by all adolescents, no matter how young. And some of the
What about the reality that the best time to treat gender dysphoria, according to some doctors and some parents, may be before a child goes through puberty? The nature of the condition, the plaintiffs urge, turns on a lack of alignment between a child‘s biological sex and perceived gender, a mismatch that will increase during puberty and a mismatch that could make surgery more likely if the condition persists. We see the point. But we also see why this concern gets to the nub of the regulatory challenge, one illustrated by the shifting standards of care over the last two decades and one confirmed by the accepted reality that these drug treatments come with “both risks and benefits.” See Cal. Amicus Br. 15. Changing the sex characteristics of a child‘s body, in short, carries material risks in either direction. States may reasonably exercise caution in these circumstances, with some States focusing on the near-term risk of increasing the symptoms of gender dysphoria and other States focusing on the irreversible risks of providing such care to a minor. The Due Process Clause does not resolve this regulatory debate.
Invocation of medical associations and other experts in the medical community does not alter this conclusion. The plaintiffs separately frame their claim as the right of parents “to obtain established medical treatments” for their children, emphasizing the many medical organizations that now support this treatment for adults and minors. Ky. R.2 ¶ 80. At least three problems stand in the way of accepting this argument. One is that the plaintiffs never engage with, or explain how they meet, the “crucial” historical inquiry to establish this right. Glucksberg, 521 U.S. at 721. There is, to repeat, no such history or tradition. Grounding new substantive due process rights in historically rooted customs is the only way to prevent life-tenured federal judges from seeing every heart-felt policy dispute as an emerging constitutional right.
The third problem is the absence of judicially manageable standards for ascertaining whether a treatment is “established” or “necessary.” Cf. Rucho v. Common Cause, 139 S. Ct. 2484, 2498 (2019). One of the amicus curiae briefs in the case, in supporting the plaintiffs, forthrightly invokes three goals of the medical profession—“autonomy,” “beneficence,” and “justice“—as a source of guidance in the area. Bioethics Br. 16. Useful as these principles may
Recognizing such a right also would mean that the state and federal legislatures would lose authority to regulate the healthcare industry whenever the subject of regulation—the medical profession and drug companies—found such regulation unnecessary or otherwise inconsistent with autonomy, beneficence, and justice. See EMW Women‘s Surgical Ctr., P.S.C. v. Beshear, 920 F.3d 421, 438–39 (6th Cir. 2019) (rejecting a similar argument). Put to the side the risks of placing the subjects of regulation in charge of regulation, how would judges know when these rights came into existence? The best evidence of the correct standard of care, plaintiffs say, comes from the standards adopted by the World Professional Association for Transgender Health. See L.W. Appellees’ Br. 4–5; Doe Appellees’ Br. 7–8. But the Kentucky and Tennessee laws largely mirror those standards of care—at least they did so for most of the time gender dysphoria has been a diagnosable condition. Not until 2012, remember, did the Association remove any age limits on hormone treatments. Compare Standards of Care for Gender Identity Disorders 10 (6th ed. 2001) (setting threshold of “as early as age 16“), with Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People 20 (7th ed. 2012) (removing age limit).
What if past is precedent—and this association and others change course in the future? Would the States’ authority reappear at that point? What is it in the Constitution, moreover, that entitles experts in a given field to overrule the wishes of elected representatives and their constituents? Is this true in other areas of constitutional law? Must we defer to a consensus among economists about the proper incentives for interpreting the impairment-of-contracts or takings clauses of the Constitution? Or to a consensus of journalists about the meaning of free speech? Or even to a consensus of constitutional scholars about the meaning of a constitutional guarantee?
B.
Equal protection—statutory classifications. “No state,” the
The Tennessee and Kentucky laws treat similarly situated individuals evenhandedly. And that is true however one characterizes the alleged classifications in the law, whether as premised on age, medical condition, or sex. Consider each possibility.
A key distinction in the laws turns on age. Adults may use drugs and surgery to transition from one gender to another. But children may not. That classification is eminently
A second key distinction in both laws turns on the medical condition at issue: gender dysphoria. The problem underlying the condition turns on the physical mismatch between the child‘s perceived gender and biological sex. The answer according to both States is to treat the condition without physical interventions, including irreversible and potentially irreversible treatments, until the patient reaches 18. This reasonable approach—waiting to use potentially irreversible treatments until the child becomes an adult—also satisfies the deferential review that applies in this setting. A state may reasonably conclude that a treatment is safe when used for one purpose but risky when used for another, especially when, as here, the treatment is being put to a relatively new use. See Cleburne, 473 U.S. at 445–46; Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 369–70 (2001).
The third potential classification in both laws, and the one on which plaintiffs train their arguments, turns on sex. This kind of classification, it is true, receives heightened review. See Virginia, 518 U.S. at 532–33. But no such form of discrimination occurs in either law. The laws regulate sex-transition treatments for all minors, regardless of sex. Under each law, no minor may receive puberty blockers or hormones or surgery in order to transition from one sex to another.
References to a child‘s biological sex in the laws does not alter this conclusion. Not so quick, the plaintiffs counter. They point out that the statutes treat minors differently based on sex because a boy with abnormally low testosterone levels could receive a testosterone booster in adolescence, but a girl could not receive testosterone to transition. Likewise, a girl could receive estrogen to remedy a genetic condition, but a boy could not receive estrogen to transition. In this way, the plaintiffs claim, the availability of cross-sex hormone treatments implicates the minor‘s sex.
We accept the premise but not the conclusion. It is true that, by the nature of their biological sex, children seeking to transition use distinct hormones for distinct changes. But that confirms only a lasting feature of the human condition, not that any and all lawmaking in the area is presumptively invalid. One year ago, and nearly fifty years ago, the Supreme Court explained that laws regulating “medical procedure[s] that only one sex can undergo” ordinarily do not “trigger heightened constitutional scrutiny.” Dobbs, 142 S. Ct. at 2245–46; see Geduldig, 417 U.S. at 496 n.20 (“While it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex-based classification . . . . Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are
Another flaw accompanies this argument. It assumes that any administration of these hormones is one treatment. That‘s not so. Using testosterone or estrogen to treat gender dysphoria (to transition from one sex to another) is a different procedure from using testosterone or estrogen to treat, say, Kleinfelter Syndrome or Turner Syndrome (to address a genetic or congenital condition that occurs exclusively in one sex). These distinct uses of testosterone and estrogen stem from different diagnoses and seek different results. Because the underlying condition and overarching goals differ, it follows that the cost-benefit analysis does too, permitting States to legislate in the area without the assumption that they have presumptively violated the Constitution. States may permit varying treatments of distinct diagnoses, as the “Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” Tigner v. Texas, 310 U.S. 141, 147 (1940); see Vacco, 521 U.S. at 808.
The Acts mention the word “sex,” true. But how could they not? The point of the hormones is to help a minor transition from one gender to another, and laws banning, permitting, or otherwise regulating them all face the same linguistic destiny of describing the biology of the procedures. If any reference to sex in a statute dictated heightened review, virtually all abortion laws would require heightened review. See Dobbs, 142 S. Ct. at 2285–2300 (listing numerous laws regulating abortion that refer to sex). Skeptical review also would extend to statutes that regulate medical procedures defined by sex. See, e.g.,
One simply cannot define, or create, a protected class solely by the nature of a denied medical benefit: in this instance childhood treatment for gender dysphoria. Else every medical condition, procedure, and drug having any relation to biological sex could not be regulated without running the gauntlet of skeptical judicial review. Far from “command[ing] ‘dissimilar treatment for [boys] and [girls] who are similarly situated,‘” Frontiero, 411 U.S. at 688 (quotation omitted), the States treat boys and girls exactly the same for constitutional purposes—reasonably limiting potentially irreversible procedures until they become adults.
What is true for the word “sex,” if plaintiffs’ and the federal government‘s arguments were accepted, also would be true for the word “gender.” That would mean that any State that opted to address treatments for “gender dysphoria,” whether in a permissive or less permissive way, would trigger heightened review. Recall the fourteen States that statutorily permit some treatments in this area. One of them requires medical insurance companies to cover treatments for gender dysphoria if the patient is 16 or older. Would heightened review apply just because the words sex or gender appear in the law? Would courts then have the final say over whether the cut-off should be 14 or 15? For equal protection purposes, as opposed to conversational purposes, a law does not “classif[y] based on sex” whenever it “uses sex-related language.” Eknes-Tucker v. Governor of Ala., __ F.4th __, 2023 WL 5344981, at *19 (11th Cir. Aug. 21, 2023) (Brasher, J., concurring). In this instance, the legally relevant classifications turn on presumptively valid age and medical conditions.
States may not permit sex-based discrimination, we appreciate, on the assumption that men as a group and women as a group would be disadvantaged to a similar degree. Separate after all is inherently unequal even if all people might superficially experience the same
The key to the constitutionality of today‘s laws, moreover, has nothing to do with groups; it‘s that they do not disadvantage “persons” based on their sex. The availability of testosterone, estrogen, and puberty blockers does not turn on invidious sex discrimination but on the age of the individual and the risk-reward assessment of treating this medical condition (as opposed to another) with these procedures. Confirming the point is the remedy the plaintiffs seek. They do not ask the States to equalize treatment options by making a procedure given to one sex available to the other. They want both sexes to receive the same gender-transitioning care. In other words, the outcome is that both sexes get a type of care or neither one does. The plaintiffs in this case, in contrast to the plaintiffs in the jury cases or for that matter the race-based-exclusion cases, do not claim a sex-discrimination right to hormones if it is denied for all children for all treatments. See Eknes-Tucker, __ F.4th at ___, 2023 WL 5344981, at *20 (Brasher, J., concurring) (observing that an injunction against a similar law would “not require the government to treat boys and girls the same” but would force the State “to either ban puberty blockers and hormones for all purposes or allow them for all purposes“).
Plaintiffs’ sex-classification argument, moreover, does not work on its own terms. Recall that the States prevent minors from taking cross-sex hormones and puberty blockers for the purpose of transitioning. In contrast to cross-sex hormones, puberty blockers involve the same
What of language in the cases saying that “all” sex-based classifications receive heightened review? Virginia, 518 U.S. at 555 (quoting J.E.B., 511 U.S. at 136); see Hogan, 458 U.S. at 724–25. The laws in those cases used sex classifications to bestow unequal treatment on men and women. See Virginia, 518 U.S. at 519 (excluding female applicants); Hogan, 458 U.S. at 719 (excluding male applicants). Those cases show only that the government cannot classify individuals by sex when doing so perpetuates invidious stereotypes or unfairly allocates benefits and burdens. J.E.B., 511 U.S. at 131, 137 (striking potential jurors “based on gender stereotypes“).
But those harms, and the necessity of heightened review, will not be present every time that sex factors into a government decision. As we have already shown, heightened review does not apply in the context of laws that regulate medical procedures unique to one sex or the other. See Dobbs, 142 S. Ct. at 2245–46; Geduldig, 417 U.S. at 496 n.20. Likewise, the government does not trigger heightened review when it houses men and women separately at a prison without making distinctions in funding or programming available to members of each sex. Cf. Women Prisoners of D.C. Dep‘t of Corrs. v. District of Columbia, 93 F.3d 910, 926 (D.C. Cir. 1996). The same is true of a sex-based decision to place urinals only in men‘s rooms. So too with these laws. Their necessary references to “enduring” differences between men and women do not trigger heightened review. Virginia, 518 U.S. at 533.
Bostock does not alter this conclusion. Moving from constitutional to statutory cases, the plaintiffs and the federal government invoke a Title VII case, Bostock v. Clayton County, 140 S. Ct. 1731 (2020). The Court concluded that
Differences between the language of the statute and the Constitution supply an initial reason why one test does not apply to the other.
Importing the
Even aside from the differences in language between this statute and the Constitution, there is a marked difference in application of the anti-discrimination principle. In Bostock, the employers fired adult employees because their behavior did not match stereotypes of how adult men or women dress or behave. In this case, the laws do not deny anyone general healthcare treatment based on any such stereotypes; they merely deny the same medical treatments to all children facing gender dysphoria if they are 17 or under, then permit all of these treatments after they reach the age of majority. A concern about potentially irreversible medical procedures for a child is not a form of stereotyping.
Plaintiffs object to this conclusion on several grounds. They counter that two cases show that these different texts have the same meaning. The first says only that cases interpreting the
The second case—Smith v. City of Salem—does little more in word or deed. 378 F.3d 566 (6th Cir. 2004). It briefly and inconclusively says that claims under the
What the Smith decision does has even fewer parallels to today‘s case. Jimmie Smith, a transgender firefighter, began “expressing a more feminine appearance” at work. Smith, 378 F.3d at 568. Smith was fired soon after. Smith “alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind [the decision].” Id. at 572. Based on this sex-stereotyping theory, the court found that Smith alleged violations of
All told, Smith tells us nothing about whether a state may regulate medical treatments for minors facing gender dysphoria. Recognizing and respecting biological sex differences does not amount to stereotyping—unless Justice Ginsburg‘s observation in United States v. Virginia that biological differences between men and women “are enduring” amounts to stereotyping. 518 U.S. at 533. Any other approach to Smith would nullify Dobbs and Geduldig, which to repeat make clear that legislative references to biological differences do not by themselves require heightened review. See Dobbs, 142 S. Ct. at 2245–46. The Eleventh Circuit recently, and correctly, reached this precise conclusion in distinguishing a similar stereotyping case. See Eknes-Tucker, __ F.4th at __, 2023 WL 5344981, at *17 (11th Cir. 2023) (reasoning that “33“>Alabama‘s ban on sex-transition procedures “does not further any particular gender stereotype” and “simply reflects biological differences“).
C.
Equal protection—suspect class. The plaintiffs and the federal government separately invoke a distinct theory of equal protection—that the Act violates the rights of a suspect class: transgender individuals. But neither the Supreme Court nor this Court has recognized transgender status as a suspect class. Until that changes, rational basis review applies.
The bar for recognizing a new suspect class is a high one. The Supreme Court “has not recognized any new constitutionally protected classes in over four decades, and instead has repeatedly declined to do so.” Ondo, 795 F.3d at 609; see City of Cleburne, 473 U.S. at 442 (mental disability is not a suspect class); Murgia, 427 U.S. at 313–14 (age is not a suspect class); Rodriguez, 411 U.S. at 28–29 (poverty is not a suspect class); see also Obergefell, 576 U.S. 644 (declining to address whether gay individuals qualify as a suspect class).
That hesitancy makes sense. Regulation of treatments for gender dysphoria poses fraught line-drawing dilemmas, not unlike the problem facing regulations premised on wealth, age, and disability, including laws designed to allocate benefits on these grounds. Plenty of challenges come to mind in the context of medical treatments for childhood gender dysphoria. Counseling versus drugs. Puberty blockers versus hormone treatments. Hormone treatments versus surgeries. Adults versus minors. One age cutoff for minors (16) versus another (18). And that’s just the line-drawing challenges that accompany treatments for gender dysphoria. What of other areas of regulation that affect transgender individuals? Bathrooms and locker rooms. Sports teams and sports competitions. Others are sure to follow.
Even when accompanied by judicial tiers of scrutiny, the U.S. Constitution does not offer a principled way to judge these lines. Removing these trying policy choices from fifty state legislatures to one Supreme Court will not solve them and in truth runs the risk of making them harder to solve. Instead of the vigorous, sometimes frustrating, “arena of public debate and legislative action” across the country and instead of other options provided by fifty governors and fifty state courts, we would look to one judiciary, suddenly delegated with authority to announce just one set of rules. Glucksberg, 521 U.S. at 720. That is not how a constitutional democracy is supposed to work—or at least works best—when confronting evolving social norms.
Other considerations that the Court has highlighted when recognizing a new suspect class do not improve plaintiffs’ chances of success.
Not an immutable group. To establish a new classification, plaintiffs must show that transgender individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (quotation omitted). It is difficult to see, at least at this stage of the case, how transgender identity fits that description. Unlike existing suspect classes, transgender identity is not “definitively ascertainable at the moment of birth.” Ondo, 795 F.3d at 609. It is not necessarily immutable, as the stories of “detransitioners” indicate and as plaintiffs do not dispute. See Detransitioners’ Amicus Br. 19–25. Instead of defining a “discrete group,” Bowen, 483 U.S. at 602, “transgender” can describe “a huge variety of gender identities and expressions,” 2022 WPATH Guidelines, supra, at S15.
Not a politically powerless group. Concerns about a “political[ly] powerless[]” group and a dysfunctional political process also do not supply a reason for heightened review. Rodriguez, 411 U.S. at 28. Whatever may have been true in the past about our society‘s treatment of individuals with gender dysphoria, some of it surely lamentable, it is difficult to maintain that the democratic process remains broken on this issue today. The President of the United States and the Department of Justice support the plaintiffs. A national anti-discrimination law,
Not an animus-driven law. Plaintiffs also have not made the case that animus toward transgender individuals as a class drives this law. Assessing legislative “motives or purposes” is “a hazardous matter,” and it‘s not the point of the inquiry. United States v. O‘Brien, 391 U.S. 367, 383 (1968). Instead of asking judges to read the hearts and minds of legislators, the inquiry asks whether the law at issue is “inexplicable by anything but animus.” Trump v. Hawaii, 138 S. Ct. 2392, 2421 (2018). The key problem is that a law premised only on animus toward the transgender community would not be limited to those 17 and under. The legislature plainly had other legitimate concerns in mind. A fair-minded legislature could review the evidence in the area and call for a pause, demanding more proof that these procedures are safe before continuing on the path the plaintiffs propose. Neither risk aversion nor a fair-minded policy dispute about the best way to protect children shows animus.
The novelty of these treatments also undercuts any claim of animus. Physicians began offering specialized care for transgender minors only in the 1990s, and the first clinic to treat transgender youth in America opened around 2007. American doctors began using puberty blockers and hormones to treat gender dysphoria around the same time. A similar timeline applies to the guidelines from the World Professional Association for Transgender Health. Its guidance documents from 1979 to 2000 generally disfavored using puberty blockers or hormones for minors, and only in 2012 did it abandon age limits for cross-sex hormones. Compare, e.g., 1998 Standards of Care, supra, at 6–7, with 2012 Standards of Care, supra, at 14. Even today, it notes the “limited data” on “the long-term physical, psychological, and neurodevelopmental outcomes in youth.” 2022 WPATH Guidelines, supra, at S65. Abroad, several European nations, including the ones who paved the way for early drug-related and surgical treatments, have since limited these medical interventions for minors. At home, the FDA has not approved these relatively new uses for puberty blockers and hormones.
The laws do not draw constitutionally irrational lines. Even under deferential review, the challengers contend, they should prevail because banning puberty blockers and hormones for
The unsettled, developing, in truth still experimental, nature of treatments in this area surely permits more than one policy approach, and the Constitution does not favor one over the other. This ongoing debate provides “persuasive evidence” that Kentucky and Tennessee could choose fair-minded caution and their own approach to child welfare, just as other jurisdictions could rationally adopt another path. Trump, 138 S. Ct. at 2421.
The challengers rely on the district courts’ endorsements of their position and evidence to question the States’ interests. But recall that each district court ruled that heightened review applied to these classifications. As shown, that would require an extension of existing Supreme Court and Sixth Circuit precedent, an extension not justified in this setting. Rational basis review applies, and it requires deference to legislatures, not to medical experts or trial court findings. At any rate, no such deference applies to a written record like this one and the dueling affidavits that accompany it. See Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1381 (6th Cir. 1995) (“[I]n a case such as this, where the district court‘s decision was made on the basis of a paper record, without a[n] evidentiary hearing, we are in as good a position as the district judge to determine the propriety of granting a preliminary injunction.” (quotation omitted)).
The challengers disagree, citing experts of their own. But no one disputes that these treatments carry risks or that the evidence supporting their use is far from conclusive. See Eknes-Tucker, __ F.4th at __, 2023 WL 5344981, at *7–8, *13; Doe Appellees’ Br. 44–45; L.W. Appellees’ Br. 35–36. The Endocrine Society‘s guidelines recognize that puberty blockers can cause “adverse effects on bone mineralization” and “compromised fertility,” along with “unknown effects on brain development.” Endocrine Society Clinical Practice Guideline, supra, at 3882. The World Professional Association for Transgender Health likewise cautions that hormone therapy can impair fertility, and it notes the “major gaps in knowledge” in this area. 2022 WPATH Guidelines, supra, at S103, S118. At bottom, the challengers simply disagree with the States’ assessment of the risks and the right response to those risks. That does not suffice to invalidate a democratically enacted law on rational-basis grounds.
V.
The preliminary injunctions suffer from another merits-related problem: their scope. Each one rests on a facial invalidation of each Act, as opposed to an as-applied judgment, and each one applies to every individual in the state. Each premise is mistaken.
Turn to the nature of the injunctions. District courts “should not issue relief that extends further than necessary to remedy the plaintiff‘s injury.” Kentucky v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). One injunction prohibits Tennessee from enforcing its law against the nine challengers and against the other seven million residents of the Volunteer State. The other injunction prohibits Kentucky from enforcing its law against seven minors and their parents and against the other 4.5 million residents of the Bluegrass State. Absent a properly certified class action, these individuals do not represent every citizen of their States. And it is doubtful that the nature of federal judicial power—or for that matter Article III—permits such sweeping relief without the existence of a properly certified class or an extraordinary reason for ignoring these normal limits on the federal judicial power.
Even if courts in some instances may wield such power, the district courts likely abused their discretion by deploying it here. See, e.g., Biden, 57 F.4th at 557; see also United States v. Texas, 143 S. Ct. 1964, 1985–86 (2023) (Gorsuch, J., concurring) (considering the systemic harms of overbroad injunctions as part of abuse-of-discretion review). Neither order offers any meaningful reason for imposing such broad relief.
Plaintiffs argue on appeal that statewide relief is necessary to remedy their injuries. Medical providers, they point out, could choose not to treat the minor plaintiffs if they cannot also treat other minors. Such “speculation” about third-party behavior will not do. Biden, 57 F.4th at 557. Plaintiffs add that an injunction confined to the minors in this case “would also force those who proceeded pseudonymously to reveal their identities in order to obtain care.” L.W. Appellees’ Br. 58. Plaintiffs did not argue the point below. And even if they had, plaintiffs cite no authority that privacy interests alone could justify statewide relief. Besides, a statewide injunction is not the only path to privacy. Medical providers are no strangers to patient confidentiality. Through each variation on these themes, plaintiffs fail to explain why a class action would not solve these problems.
We leave for the district courts on remand to consider one other issue: standing, more specifically redressability. See Arizona, 40 F.4th at 383 (noting that, at the preliminary injunction phase, Article III standing goes to the “likelihood of success” on the merits). Before reaching the final injunction stage of the case, the parties may wish to introduce evidence about whether any of the plaintiff doctors plan to offer these treatments in the future if they succeed on these constitutional claims. As a factual and legal matter, the point is undeveloped and potentially knotty.
The other preliminary injunction factors largely favor the States as well. If the injunction remains in place, Tennessee and Kentucky will suffer harm from their inability to enforce the will of their legislatures, to further the public-health considerations undergirding the laws, and to avoid health risks to their children.
As for harm to others, Tennessee permits the challengers to continue their existing treatments until March 31, 2024,
As for the public interest, Tennessee and Kentucky‘s interests in applying these laws to their residents and in being permitted to protect their children from health risks weigh heavily in favor of the States at this juncture.
***
No one in these consolidated cases debates the existence of gender dysphoria or the distress caused by it. And no one doubts the value of providing psychological and related care to children facing it. The question is whether certain additional treatments—puberty blockers, hormone treatments, and surgeries—should be added to the mix of treatments available to those age 17 and under. As to that, we return to where we started. This 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
For these reasons, we reverse the preliminary injunctions issued in these cases and remand them for further proceedings consistent with this decision.
DISSENT
HELENE N. WHITE, Circuit Judge, dissenting. The statutes we consider today discriminate based on sex and gender conformity and intrude on the well-established province of parents to make medical decisions for their minor children. Despite these violations of the Equal Protection and Due Process Clauses of the
I.
We consider whether to uphold injunctions against the enforcement of Tennessee and Kentucky statutes insofar as they ban the use of puberty suppressants and hormone therapy to treat minors who are diagnosed with gender dysphoria.
A.
At birth, an infant is assigned a sex, either male or female. An assignment is usually based on the appearance of external genitalia, although the term sex, as used in the medical community, also comprises other things, such as internal reproductive organs, chromosomes, hormones, and secondary sex characteristics. Gender identity, in contrast, “is the medical term for a person‘s internal, innate sense of belonging to a particular sex.” No. 23-5609, R. 17-1, PID 148. Assigned sex and gender identity match for most individuals, but for transgender individuals, they do not align.
For a small segment of the population, incongruity between assigned sex and gender identity can result in gender dysphoria, a medical condition characterized by significant psychological distress or impairment in social, occupational, or other important areas of functioning. The condition is listed in the Diagnostic and Statistical Manual, Version 5 (DSM-5), the diagnostic and coding compendium for mental-health professionals, and can arise during
The World Professional Association for Transgender Health (WPATH) and the Endocrine Society have published clinical-practice guidelines on how best to treat gender dysphoria. The WPATH is the leading association of medical and mental-health professionals with expertise in treating gender dysphoria, and the Endocrine Society is an organization representing more than 18,000 endocrinologists. The groups are the largest professional associations in the United States in their respective fields. The first set of guidelines dates to 1979, and the organizations have revised the guidelines several times since.
The goal of treatment for gender dysphoria is to reduce distress and improve functioning by enabling an affected person to live in conformity with the person‘s gender identity, and the process of undergoing such treatment is often called gender transition or gender-affirming care. The precise treatment for gender dysphoria depends on an individual‘s medical and mental-health circumstances and age—whether the individual is a pre-pubescent child, an adolescent, or an adult.
Transition typically starts with a series of steps known as social transition. Those steps often include using a name and pronouns, wearing clothes, and practicing grooming habits associated with the person‘s gender identity. Beginning with adolescence, a healthcare provider may recommend medical interventions, including prescription medications. Minors often experience intensification of gender dysphoria when entering adolescence due to the development of secondary sex characteristics, such as facial and body hair for males and breasts for females. Providers do not consider these interventions until the onset of puberty.
Under the WPATH and the Endocrine Society guidelines, an adolescent may receive medical interventions only if the adolescent: (1) has gender incongruence that is both marked and sustained over time; (2) meets the diagnostic criteria for gender dysphoria; (3) demonstrates sufficient emotional and cognitive maturity to provide informed consent for the treatment; (4) actually provides such consent with the adolescent‘s parents after being informed of the potential reproductive and other side effects; and (5) has no mental-health concerns that may
Treatment may consist of puberty-suppressing medications and hormone therapy. Pubertal suppression prevents the worsening of gender dysphoria by limiting the development of secondary sex characteristics and is appropriate only if the adolescent‘s gender dysphoria has worsened with the onset of puberty. Hormone therapy—testosterone for adolescent transgender boys and testosterone suppression and estrogen for adolescent transgender girls—also reduces distress by facilitating physiological changes consistent with the adolescent‘s gender identity and on a similar timeline as the adolescent‘s non-transgender peers.
A substantial body of evidence—including cross-sectional and longitudinal studies as well as decades of clinical experience—shows that these medical interventions work. Gender-affirming care improves short- and long-term outcomes for adolescents with gender dysphoria by reducing rates of depression, anxiety, self-harm, and suicidality, and brings their mental health into alignment with their peers. Adverse side effects, moreover, are infrequent, and healthcare providers can easily manage them. Providers have used puberty suppressants to treat precocious (or early) puberty for decades, and suppressants have no long-term effects on fertility or sexual functioning. Suppression is also reversible; if treatment ceases, endogenous puberty normally resumes. Hormone therapy likewise is safe and poses a low risk of side effects or adverse consequences. The percentage of individuals who later come to regret undergoing such care is low—only about one percent.
The WPATH and the Endocrine Society guidelines constitute the prevailing standard of care for individuals with gender dysphoria. They are based on the same quality of evidence as
B.
Tennessee Plaintiffs are transgender adolescents L.W., John Doe, and Ryan Roe (Tennessee Minor Plaintiffs), their parents Samantha and Brian Williams, Jane and James Doe, and Rebecca Roe (Tennessee Parent Plaintiffs), and Dr. Susan Lacy (Tennessee Physician Plaintiff), a physician licensed to practice medicine in Tennessee. All Tennessee Minor Plaintiffs were undergoing gender-affirming care when Tennessee‘s statute took effect. All have benefitted from their care.
L.W., a fifteen-year-old transgender girl, first began to question her gender identity when she was ten years old. She felt like she was “trapped” or “drowning” and found it hard to focus in school or connect with her friends. No. 23-5600, R. 22, PID 196–97. She started getting sick at school and routinely developed urinary tract infections because she was not using the restroom out of distress with the sex-separated facilities. L.W. saw a therapist, who diagnosed her with gender dysphoria. L.W. began puberty at age thirteen, and the prospect of changes like a deeper voice and facial hair terrified her. Thus, her physician at Vanderbilt Children‘s Hospital (VCH) discussed treatment options, including puberty suppressants and, later, hormone therapy. L.W. and her parents decided that treatment was right for her. Now, L.W. is a happy, confident, and outgoing teenager.
Ryan Roe is a fifteen-year-old transgender boy. By the time he entered the fifth grade, he had begun puberty and became depressed and anxious. He had a panic attack when he had his first period. In the sixth grade, Ryan often vomited from anxiety in the morning before school, and his distress persisted despite treatment with anti-anxiety medication. Ryan‘s peers bullied him. He stopped talking in public because of the sound of his voice and began engaging in self-harm. Two years of psychotherapy provided Ryan minimal benefit, and after the seventh grade, his therapist diagnosed him with gender dysphoria. Ryan and his parents consulted with an endocrinologist at VCH, and after months of weighing the benefits and risks of treatment, Ryan
John Doe is a twelve-year-old transgender boy. He knew that he was a boy beginning when he was two or three years old. When John was three or four years old, he adopted a typically male name and began telling his friends that he was a boy. Participating in sex-separated activities with girls made him miserable; he was upset playing on an all-girls soccer team, and he asked his mother why he could not wear the boy‘s outfit or dance the boy‘s part in his dance classes and recitals. During first grade, John started seeing a therapist, who diagnosed him with gender dysphoria. When John was nine, his mom gave him the female version of The Care and Keeping of You, a book designed to teach children about the changes that their bodies undergo in adolescence. John became mortified of the prospect of female puberty. His pediatrician referred him to an endocrinologist to explore treatment options. The endocrinologist monitored John for years, and once John began puberty, John and his parents decided that puberty suppression was the best course for John. Because of treatment, John has “finally” arrived at a “healthy, happy place,” and when the time is right, he hopes to begin hormone therapy. No. 23-5600, R. 24, PID 212–13.
Dr. Lacy, the Tennessee Physician Plaintiff, is board-certified in obstetrics and gynecology and licensed to practice medicine in Tennessee. At her practice in Memphis, she treats both cisgender and transgender patients, including twenty minor transgender patients with gender dysphoria. Dr. Lacy has seen first-hand how integral such care is to her patients’ well-being. No patient has expressed to Dr. Lacy any regret from treatment.
Kentucky Plaintiffs are three transgender boys and four transgender girls (Kentucky Minor Plaintiffs) and their parents (Kentucky Parent Plaintiffs). At the time Kentucky‘s statute took effect, six of the Kentucky Minor Plaintiffs were undergoing gender-affirming care under the supervision of their medical providers and with the consent of their parents. The remaining Kentucky Minor Plaintiff, who is nine years old, anticipates needing care once she begins puberty.
C.
Tennessee and Kentucky passed statutes this year prohibiting the use of puberty suppressants and hormone therapy “for the purpose of” providing gender-affirming care to minors.3 Tennessee‘s statute set forth an effective date of July 1, 2023. See 2023 Tenn. Pub. Acts ch. 1. Kentucky‘s legislature overrode the governor‘s veto, enacting its statute on March 29, 2023, with an effective date of June 29, 2023. See Ky. Acts 775–79.
Tennessee‘s statute prohibits a healthcare provider from performing, administering, or offering to perform or administer on a minor “any puberty blocker or hormone to a human being,”
Under Kentucky‘s statute, a healthcare provider may not, “for the purpose of attempting to alter the appearance of, or to validate a minor‘s perception of, the minor‘s sex, if that appearance or perception is inconsistent with the minor‘s sex, knowingly” provide certain forms of care.
(a) A minor born with a medically verifiable disorder of sex development, including external biological sex characteristics that are irresolvably ambiguous;
(b) A minor diagnosed with a disorder of sexual development, if a health care provider has determined, through genetic or biochemical testing, that the minor does not have a sex chromosome structure, sex steroid hormone production, or sex steroid hormone action, that is normal for a biological male or biological female; or
(c) A minor needing treatment for an infection, injury, disease, or disorder that has been caused or exacerbated by any action or procedure prohibited by [the statute].
Both statutes authorize licensing sanctions for healthcare providers. See
Plaintiffs sought preliminary injunctions to enjoin enforcement of these statutes, arguing that the statutes discriminate based on sex and transgender status in violation of the Equal Protection Clause and deprive Parent Plaintiffs of their fundamental right to make medical decisions for their children in violation of the Due Process Clause.4
The district courts in both cases issued statewide preliminary injunctions, concluding that the statutes are likely unconstitutional on due-process and equal-protection grounds. See L.W. ex rel. Williams v. Skrmetti, 2023 WL 4232308, at *6; Doe 1 v. Thornbury, No. 23-CV-230, 2023 WL 4230481, at *1 (W.D. Ky. June 28, 2023). The Tennessee district court reasoned that the state‘s statute infringed Parent Plaintiffs’ fundamental right to make medical decisions for their children and that the state failed to establish a compelling interest supporting the law and show that the law was narrowly tailored in support of any asserted interest. See 2023 WL 4232308, at *6–8. The court also reasoned that the statute discriminated based on sex and transgender status, which the court found to be a semi-suspect class. See id. at *9–19. The Kentucky district court followed the same analysis regarding Kentucky‘s statute but concluded that it did not need to decide whether transgender persons are a semi-suspect class. See 2023 WL 4230481, at *3 n.5.
State officials in both cases brought emergency motions to stay these preliminary injunctions, which this panel considered in July. The majority stayed the Tennessee preliminary injunction over my dissent, becoming the first court in this country to find that such restrictions on gender-affirming care for transgender youth are likely constitutional. See L.W. ex rel. Williams v. Skrmetti, 73 F.4th 408, 422 (6th Cir. 2023).5 However, the majority emphasized: “These initial views, we must acknowledge, are just that: initial. 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.”
We now hear these cases to reach a merits decision whether to affirm the district courts’ preliminary injunctions. Plaintiffs reiterate their arguments that the statutes are unconstitutional under the Equal Protection Clause because they discriminate based on sex, gender conformity, and transgender status and the Due Process Clause because they deny parents the fundamental right to make medical decisions for their children.
II.
“We review a district court‘s grant of a preliminary injunction for an abuse of discretion,” reviewing its “legal conclusions de novo and its factual findings for clear error.” Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012). “The injunction will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Id. (quoting Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d 310, 312 (6th Cir. 1998)).
“Courts reserve the extraordinary remedy of a preliminary injunction for those cases where it is necessary to preserve the status quo pending a final determination of the merits.” La.-Pac. Corp. v. James Hardie Bldg. Prod., Inc., 928 F.3d 514, 517 (6th Cir. 2019). “In deciding whether to issue an injunction, a district court weighs four factors: ‘(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction.‘” Id. (quoting S. Glazer‘s Distribs. of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 849 (6th Cir. 2017)). “As long as a plaintiff demonstrates some likelihood of success on the merits, a court should balance rather than tally these factors,” although “our cases warn that a court must not issue a preliminary injunction where the movant presents no likelihood of merits success.” Id.
I start by evaluating Plaintiffs’ likelihood of success on the merits and conclude that the statutes are likely unconstitutional under the
A.
“‘[O]ur Nation has had a long and unfortunate history of sex discrimination,’ . . . a history which warrants the heightened scrutiny we afford all gender-based classifications today.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994) (quoting Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (plurality opinion)). “[T]he party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an ‘exceedingly persuasive justification’ for the classification.” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (quoting Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981)). “The burden is met only by showing at least that the classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.‘” Id. (quoting Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980)). This standard is known as “intermediate scrutiny.” Clark v. Jeter, 486 U.S. 456, 461 (1988).
Contrary to the majority, I conclude that Tennessee‘s and Kentucky‘s statutes cannot pass constitutional muster. First, the statutes trigger heightened scrutiny because they facially discriminate based on a minor‘s sex as assigned at birth and on a minor‘s failure to conform with societal expectations concerning that sex. Second, Tennessee and Kentucky do not show an exceeding persuasive justification or close means-ends fit for their classifications.6
Equal-protection jurisprudence is clear: When a “challenged [statute] expressly discriminates among [persons] on the basis of gender, it is subject to scrutiny under the Equal Protection Clause of the
It is just as clear that a classification based on gender stereotypes triggers heightened scrutiny. See J.E.B., 511 U.S. at 138 (concluding that the government‘s use of peremptory jury strikes based on the presumption that the potential jurors’ views corresponded to their sexes was unconstitutional under intermediate scrutiny). And this court held nearly twenty years ago that differential treatment because a person “fails to act and/or identify with his or her gender” is “[s]ex stereotyping,” Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004), and “easily constitute[s] a claim of sex discrimination grounded in the Equal Protection Clause of the Constitution,” id. at 577. Further, just three years ago, the Supreme Court confirmed that if the government treats differently “a person identified as male at birth for traits or actions that it tolerates in a[] [person] identified as female at birth,” or vice versa, the person‘s “sex plays an unmistakable . . . role.” Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741–42 (2020).
The statutes also condition the availability of procedures on a minor‘s conformity with societal expectations associated with the minor‘s assigned sex. Each law bars treatment when sought “for the purpose of” inducing physiological changes, like secondary sex characteristics, that are “inconsistent with” how society expects boys and girls to appear.
The statutes accordingly “penalize[]” treatment for a minor “identified as male at birth” but “tolerate[]” the same treatment for a minor “identified as female at birth,” Bostock, 140 S. Ct. at 1741, and vice versa. That is a facial classification, pure and simple.
2.
Since sex and gender conformity each “play[] an unmistakable . . . role,” Bostock, 140 S. Ct. at 1742, in determining the legality of a medical procedure for a minor, these statutes should raise an open-and-shut case of facial classifications subject to intermediate scrutiny. Yet the majority concludes otherwise.
The majority first reasons that “no [classification] occurs in either law” because the statutes “regulate sex-transition treatments for all minors, regardless of sex,” and “[u]nder each law, no minor may receive puberty blockers or hormones or surgery in order to transition from one sex to another.” Maj. Op. 24. This reasoning invokes an “equal application” principle, which was once acceptable in the Supreme Court‘s equal-protection jurisprudence, see Pace v. Alabama, 106 U.S. 583, 585 (1883) (upholding a statutory scheme that punished interracial fornication and adultery more severely than intra-racial fornication and adultery because “[t]he punishment of each offending person, whether white or black, is the same“), overruled by McLaughlin v. Florida, 379 U.S. 184 (1964). But the Court has since rejected that principle—emphatically and repeatedly.
In Loving v. Virginia, the Court held unconstitutional anti-miscegenation laws that applied to black and white persons alike. In so doing, the Court “reject[ed] the notion that the mere ‘equal application’ of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment‘s proscription of all invidious racial discriminations.” 388 U.S. 1, 8 (1967). The key, the Court said, was that “[t]he statutes proscribe generally accepted conduct if engaged in by members of different races.” Id. at 11.
The Supreme Court has confirmed in numerous post-Loving cases, moreover, that laws that classify on suspect lines do not escape heightened scrutiny despite “evenhandedly” classifying all persons. In Powers v. Ohio, the Court “reject[ed] . . . the view that race-based peremptory challenges survive equal protection scrutiny because members of all races are subject to like treatment,” namely, “that white jurors are subject to the same risk of peremptory challenges based on race as are all other jurors.” 499 U.S. 400, 410 (1991). “The suggestion that racial classifications may survive when visited upon all persons,” the Court stated, “is no more authoritative today than the case which advanced the theorem.” Id. (citing Plessy v. Ferguson, 163 U.S. 537 (1896)). “This idea has no place in our modern equal protection jurisprudence. It is axiomatic that racial classifications do not become legitimate on the assumption that all persons suffer them in equal degree.” Id.; see also J.E.B., 511 U.S. at 146 (extending the holding of Powers to “discrimination in jury selection on the basis of gender“).
The Court in Johnson v. California again rejected the notion that a classification escapes heightened review if the classification applies “equally” to all. There, the Court considered a state department of corrections’ policy of temporarily segregating new prisoners based on race to allow assessment of a prisoner‘s danger predicated on the risk of interracial violence between race-based gangs. See 543 U.S. 499, 502 (2005). The department argued “that its policy should be exempt from” strict scrutiny “because it is ‘neutral‘—that is, it ‘neither benefits nor burdens one group or individual more than any other group or individual.’ In other words, strict scrutiny should not apply because all prisoners are ‘equally’ segregated.” Id. at 506 (citation omitted). The Court disagreed, noting its “repeated command that ‘racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally‘” and its rejection of “the notion that separate can ever be equal—or ‘neutral‘—50 years ago in Brown v. Board of Education.” Id. (citations omitted).
This contention misreads Geduldig and Dobbs, which merely reiterated Geduldig‘s language. At issue in Geduldig was a state disability-insurance program that excluded coverage for “any injury or illness caused by or arising in connection with pregnancy.” 417 U.S. at 489. The Court determined that “[n]ormal pregnancy is an objectively identifiable physical condition with unique characteristics,” thus the program “d[id] not exclude anyone from benefit eligibility because of gender but merely remove[d] one physical condition—pregnancy—from the list of compensable disabilities.” Id. at 496 n.20. The Court also rejected the argument that a facial classification based on pregnancy was necessarily a proxy for sex- or gender-based discrimination. See id.
The statutes here, by contrast, expressly reference a minor‘s sex and gender conformity—and use these factors to determine the legality of procedures. Further, discrimination based on inconsistency between gender identity and sex as assigned at birth can be seen as a proxy for discrimination against transgender individuals, which “necessarily” is discrimination “because of sex,” Bostock, 140 S. Ct. at 1744—just like “[a] tax on wearing yarmulkes is a tax on Jews,” Bray v. Alexandria Women‘s Health Clinic, 506 U.S. 263, 270 (1993); see also Rice v. Cayetano, 528 U.S. 495, 514–15 (2000) (treating discrimination on the basis of Hawaiian ancestry as a facial race classification because “ancestry [was] a proxy for race“); Castaneda v. Partida, 430 U.S. 482, 495 (1977) (concluding discrimination in jury procedure based on “Spanish
To further support the majority‘s contention that heightened review does not apply, the majority gives as an example that the government may “house[] men and women separately at a prison” if it does not “mak[e] distinctions in funding or programming available to members of each sex.” Maj. Op. 29. I do not read Women Prisoners of the District of Columbia v. District of Columbia as supporting the majority‘s position. There, the D.C. Circuit considered an equal-protection challenge to the District of Columbia offering fewer programs to its female than its male inmates, not the separation of inmates based on sex. See 93 F.3d 910, 923–24 (D.C. Cir. 1996). The court did not address what level of scrutiny applied, or whether the programming survived scrutiny, because the resolution of the case depended on the “[t]he threshold inquiry” whether the female and male inmates were “similarly situated.” Id. at 924. The court said the inmates were not, noting in particular “the striking disparities between the sizes of the prison populations.” Id. at 925. “It is hardly surprising, let alone evidence of discrimination, that the smaller correctional facility” where the women were housed “offered fewer programs than the larger one” where the men were housed. Id. at 925. Indeed, the court favorably cited its earlier precedent, Pitts v. Thornburgh, supra, see id. at 926, which held that “heightened scrutiny,” not the deferential rational-basis review, applied when reviewing the incarceration of female inmates at facilities significantly farther from the District than similarly situated male inmates, 866 F.2d 1450, 1453 (D.C. Cir. 1989).
The majority also argues that, “in invalidating bans on same-sex marriage in Obergefell v. Hodges,” the Supreme Court “would have said“—but “did not” say—that laws with sex- or gender-based conditions trigger heightened scrutiny if such scrutiny did, in fact, apply. Maj. Op. 30. True, the Court did not specify in Obergefell the appropriate degree of judicial scrutiny. But the Court‘s silence is just that—silence. We should be wary of reading much (if anything) into the Court‘s resolution of the issues presented there without discussion of the applicable level of scrutiny. The Court held that laws prohibiting same-sex marriage were unconstitutional under
The majority further concludes that decisions under
To be sure,
Our decision in Smith v. City of Salem, supra, also forecloses the majority‘s position. Plaintiff “Smith—biologically and by birth a male—[wa]s a transsexual and ha[d] been diagnosed with Gender Identity Disorder (‘GID‘),” an earlier name for gender dysphoria. 378 F.3d at 568. “After being diagnosed with GID, Smith began ‘expressing a more feminine appearance on a full-time basis‘—including at work [at a municipal fire department]—in accordance with international medical protocols for treating GID.” Id. That feminine appearance, Smith alleged, led to adverse employment action. See id. at 569. This court concluded that Smith had a viable
The majority‘s attempts to distinguish Smith are unpersuasive. ”Smith never addresses the textual differences between these documents—or the different stakes of broadly reading a statute versus broadly reading a largely unamendable constitution“—the majority says. Maj Op. 32. For reasons already discussed, neither the “textual differences” nor “the different stakes” affect the preliminary question whether a facial classification exists. And regardless whether the majority‘s “arguments” about the persuasiveness of Smith‘s reasoning “have merit,” Smith
The majority next says that “[a]ll of the cases [that Smith relied on] pre-date Bostock,” “[a]nd nearly all concern workers with overlapping employment-discrimination claims under
Then, the majority asserts that “[o]ur subsequent cases have largely taken the hint, refusing to extend Smith beyond claims about discrimination over dress or appearance,” citing Chisholm v. St. Mary‘s City School District, supra, and Vickers v. Fairfield Medical Center, supra, in support. Id. The majority misapprehends both cases. Chisholm concluded that a coach‘s comments that athletes were “pussies” and not tough enough did not constitute “sex stereotyping.” 947 F.3d 342, 351 (6th Cir. 2020). “Toughness, while sometimes celebrated in men, is certainly not discouraged in women, especially in a professional or team setting.” Id. at 352. And the coach “was not offering a commentary on whether [the athletes] were exemplars of their sex“; in his “somewhat boorish mind, a ‘pussy’ was a wimp or coward, perhaps a ‘snowflake’ in the current lexicon, but, critically, not a feminine individual.” Id. Vickers held that the plaintiff‘s “claim fail[ed] because [he] has failed to allege that he did not conform to traditional gender stereotypes in any observable way at work.” 453 F.3d 757, 764 (6th Cir. 2006). “[T]he harassment [at issue] [wa]s more properly viewed as harassment based on [his] perceived homosexuality, rather than based on gender non-conformity.” Id. at 763. After Bostock, however, that conclusion is dubious. See 140 S. Ct. at 1741 (“[I]t is impossible to discriminate against a person for being homosexual . . . without discriminating against that individual based on sex.“).
Finally, the majority asserts that ”Smith tells us nothing about whether a State may regulate medical treatments for minors facing gender dysphoria.” Maj. Op. 32. “Recognizing
3.
Because Tennessee’s and Kentucky’s statutes facially classify based on sex and gender conformity, they are subject to intermediate scrutiny. Under that standard, the “burden . . . rests entirely on the” government to come forward with an “exceedingly persuasive” justification for the classification. VMI, 518 U.S. at 533. The government satisfies its burden “only by showing at least that the classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” Hogan, 458 U.S. at 724 (quoting Wengler, 446 U.S. at 150). “If the State’s objective is legitimate and important,” the question is “whether the requisite direct, substantial relationship between objective and means is present.” Id. at 725. “The purpose of requiring that close relationship is to assure that the validity of a classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women.” Id. at 725–26.
The statutes fail intermediate scrutiny. To start, they lack an exceedingly persuasive justification. “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” VMI, 518 U.S. at 533. “[T]he mere recitation of a benign . . . purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.” Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1975); see also
Even taking Tennessee’s and Kentucky’s word that their purpose is solely to protect minors, see Tennessee Appellants Br. 44; Kentucky Appellants Br. 3, the states still fail to show that “the requisite direct, substantial relationship between objective and means is present,” Hogan, 458 U.S. at 725 (quoting Wengler, 446 U.S. at 150). In each lawsuit, the district court made robust factual findings based on an extensive record, and neither court found that banning these treatments is beneficial to minors, nor has any district court confronting similar laws outside this circuit. I defer to these factual findings and, on my review of the record, see no error, clear or otherwise.
Gender-affirming care is well accepted as treatment for gender dysphoria. The WPATH and the Endocrine Society, the two most prominent organizations in transgender healthcare, have promulgated widely accepted clinical-practice guidelines for treatment. Tennessee and Kentucky try to discredit these guidelines by noting that the conclusions therein are based on “low-quality evidence” under the Grading of Recommendations Assessment, Development, and Evaluation (GRADE) system, a formal process for assessing the quality of scientific evidence. See Tennessee Appellants Br. 14; Kentucky Appellants Br. 4. But “[r]ecommendations for pediatric care made by professional associations in guidelines are seldom based on well-designed and conducted randomized controlled trials due to their rarity.” No. 23-5600, R. 30, PID 293. And, in any event, the GRADE system permits drawing conclusions based on “low-quality evidence,” and doing so is neither novel nor uncommon. For example, about twenty percent of the American Heart Association’s recommendations in its Guideline for Pediatric Basic and Advanced Life Support are strong recommendations based on evidence of similar quality.
[M]any of the major medical and mental health groups in the United States—including the American Medical Association, the American Medical Student Association, the American Psychiatric Association, the American Psychological Association, the American Family Practice Association, the Endocrine Society, the National Association of Social Workers, the American Academy of Plastic Surgeons, the American College of Surgeons, Health Professionals Advancing LGBTQ Equality, the HIV Medicine Association, the Lesbian, Bisexual, Gay and Transgender Physician Assistant Caucus, and Mental Health America—recognize the [guidelines] as representing the consensus of the medical and mental health communities regarding the appropriate treatment for transgender and gender dysphoric individuals.
The record also supports that, over the short- and long-term, gender-affirming care benefits adolescents with gender dysphoria. It reduces rates of depression, anxiety, self-harm, and suicidality. Further, providers have used puberty suppressants and hormone therapy for years to treat other conditions, so the side effects are well known—as well as infrequent and easily managed.
In short, the “actual state purposes” undergirding the statutory classifications here, VMI, 518 U.S. at 535, rested on improper generalizations about boys and girls. And “[a] purpose genuinely to” protect children “is not served by” the classifications, id. at 539–40. “That is not equal protection.” Id. at 540.
B.
“The Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint.” Washington v. Glucksberg, 521 U.S. 702, 719 (1997). “The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id. at 720. This protection encompasses “two categories of substantive rights”: “rights guaranteed by the first eight Amendments” and “a
Unlike the majority, I conclude that Tennessee’s and Kentucky’s statutes violate the Due Process Clause because they prohibit Parent Plaintiffs from deciding whether their children may access medical care that the states leave available to adults. The statutes thereby infringe on their fundamental right to control medical choices for their children, a right deeply rooted in this nation’s history and protected as a matter of Supreme Court and binding circuit precedent.
1.
“Substantive due process” is “a treacherous field.” Dobbs, 142 S. Ct. at 2247 (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)). As cautioned in Dobbs, courts “must guard against the natural human tendency to confuse what [the Fourteenth] Amendment protects with [their] own ardent views about the liberty that Americans should enjoy.” Id. Accordingly, “the Court has long been ‘reluctant’ to recognize rights that are not mentioned in the Constitution.” Id. (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)).
Despite this hesitancy, the Court has found clarity in some areas. “[T]he interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by [the] Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion); see also Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981) (“[It is] plain beyond the need for multiple citation that a parent’s desire for and right to ‘the companionship, care, custody and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’”
Thus, we have squarely held that “[p]arents possess a fundamental right to make decisions concerning the medical care of their children.” Kanuszewski v. Mich. Dep’t of Health & Hum. Servs., 927 F.3d 396, 418 (6th Cir. 2019). In Kanuszewski, we considered a Michigan program under which the state collected and stored blood samples from newborns to test for diseases. See id. at 404. We concluded that qualified immunity shielded state employees from the parent plaintiffs’ claims regarding the initial collection, see id. at 415–16, but that the ongoing storage without informed consent violated the parents’ fundamental right to direct the medical care of their children, see id. at 418–21.
Kanuszewski flows naturally from the Court’s parental-autonomy decisions. “[O]ur constitutional system long ago rejected any notion that a child is ‘the mere creature of the State’ and, on the contrary, asserted that parents generally ‘have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.’” Parham v. J.R., 442 U.S. 584, 602 (1979) (second alteration in original) (quoting Pierce, 268 U.S. at 535). “Surely,” the Supreme Court has noted, “this includes a ‘high duty’ to recognize symptoms of illness and to seek and follow medical advice.” Id. “The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions,” id., and “historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children,” id. (citing 1 W. Blackstone, Commentaries; 2 J. Kent, Commentaries on American Law). Here, no one can seriously doubt whether Parent Plaintiffs and others like them are motivated by “natural bonds of affection” and their children’s “best interests.”
Much of the Court’s analysis focused on the rights and role of parents in American society as caretakers for their children. “[A] state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized,” but “[t]he statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” Parham, 442 U.S. at 603. “Simply because the decision of a parent . . . involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or other medical procedure.” Id. Ultimately, “[p]arents can and must make those judgments.” Id. (emphasis added).
Applying these principles, Tennessee’s and Kentucky’s statutes plainly intrude on parental autonomy in violation of Parent Plaintiffs’ substantive due-process rights. Although this case presents issues at the center of political controversies, the legal analysis on this point is rather simple. “Parents possess a fundamental right to make decisions concerning the medical care of their children.” Kanuszewski, 927 F.3d at 418. Tennessee’s and Kentucky’s statutes prohibit parents from deciding whether medical treatment otherwise available to adults is appropriate for their minor children. And given that the statutes fail intermediate scrutiny, they fail strict scrutiny as well.
2.
The majority thinks differently, finding that Tennessee’s and Kentucky’s statutes do not
The majority begins by framing the issue as whether “[t]his country [has] a ‘deeply rooted’ tradition of preventing governments from regulating the medical profession in general or certain treatments in particular” and concludes “[q]uite to the contrary.” Maj. Op. 14. It notes that “governments have long played a critical role in regulating health and welfare,” id., including “the integrity and ethics of the medical profession,” id. (quoting Glucksberg, 521 U.S. at 731), and “medical treatment,” id., and that such regulations “receive ‘a strong presumption of validity,’” id. (quoting Heller v. Doe, 509 U.S. 312, 319 (1993)). Accordingly, the majority reasons, “[t]he government has the power to reasonably limit the use of drugs,” and “[i]f that’s true for adults, it’s assuredly true for their children.” Id. at 17. “A parent’s right to make decisions for a child does not sweep more broadly than an adult’s right to make decisions for herself.” In short, “[t]his country does not have a custom of permitting parents to obtain banned medical treatments for their children and to override contrary legislative policy judgments in the process.” Id. at 17–18.
The majority’s focus on the government’s power over medical treatment in general misses the mark.8 It is true, as the majority says, that the government has wide latitude to
Once the issue is properly framed, the answer becomes clear: parents have, in the first instance, a fundamental right to decide whether their children should (or should not) undergo a given treatment otherwise available to adults, and the government can take the decision-making reins from parents only if it comes forward with a sufficiently convincing reason to withstand judicial scrutiny. That conclusion is faithful to our holding in Kanuszewski that “[p]arents possess a fundamental right to make decisions concerning the medical care of their children.” 927 F.3d at 418. And it comports with the Supreme Court’s admonition that “parents generally ‘have the right, coupled with the high duty, . . . to recognize symptoms of illness and to seek and follow medical advice.” Parham, 442 U.S. at 602 (quoting Pierce, 268 U.S. at 535).
The majority’s reasoning to the contrary is unconvincing. It says that “there is a night and day difference between th[e] program” in Kanuszewski and the statutes here because “[t]he Michigan program compelled medical care, while the Tennessee and Kentucky laws restrict medical care. It is one thing for the State to impose a procedure on someone; it is quite another
The majority further says that “Parham v. J. R. does not help [Parent Plaintiffs] either” because at issue in Parham were the minor plaintiffs’ “procedural, not substantive, due process” rights. Maj. Op. 19. However, the Court said, in no uncertain terms, that a parent has the “right” and “‘high duty’ to recognize symptoms of illness and to seek and follow medical advice” on behalf of the child. 442 U.S. at 602. This language concerning a parent’s “right” and “high duty,” moreover, was a quote from Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, a substantive due-process decision on the parental right to send a child to a private instead of a public school, see 268 U.S. at 534–36. In fact, every other case cited in that paragraph of Parham was a substantive due-process decision. See 442 U.S. at 602 (citing Wisconsin v. Yoder, 406 U.S. 205, 213 (1972); Prince, 321 U.S. at 166; Meyer, 262 U.S. at 400). Clearly, the Court in Parham was expounding the substantive due-process right of parents to direct their children’s medical care, although the discussion was in the context of addressing the minor plaintiffs’ procedural due-process claims.
To be sure, none of this is to say “that parents’ control over their children is without limit.” Kanuszewski, 927 F.3d at 419. As noted, “a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized.” Parham, 442 U.S. at 603. The state may, therefore, prohibit a parent from submitting a child to a genuinely harmful treatment. See, e.g., Pickup v. Brown, 740 F.3d 1208, 1223, 1232, 1235–36 (9th Cir. 2014) (concluding that parents had no fundamental right to give children a “treatment that the state has reasonably deemed harmful” given “the well-documented” and “overwhelming consensus” “of the medical and psychological community that” sexual orientation change efforts therapy “was harmful and ineffective” (emphasis added)), abrogated on other grounds by Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018); Doe ex rel. Doe v. Governor of N.J., 783 F.3d 150, 156 (3d Cir. 2015) (adopting Pickup’s holding); cf. Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir. 2004) (“[F]emale genital mutilation is extremely painful, permanently disfigures the female genitalia, and exposes the girl or woman to the risk of serious, potentially life-threatening complications, including bleeding, infection, urine retention, stress, shock, psychological trauma, and damage to the urethra and anus.” (cleaned up)).
But a state cannot simply deem a treatment harmful to children without support in reality and thereby deprive parents of the right to make medical decisions on their children’s behalf. Allowing the state to do so is tantamount to saying there is no fundamental right. Cf. Schall, 467 U.S. at 265 (“[I]f parental control falters, the State must play its part as parens patriae.” (emphasis added)); Prince, 321 U.S. at 166 (noting “that the custody, care and nurture of the child reside first in the parents” (emphasis added)). A fundamental right backed up by strict scrutiny demands more. “Of course [judges] are not scientists, but neither may [they] abandon the field when government officials . . . infringe a constitutionally protected liberty. The whole point of [heightened] scrutiny is to test the government’s assertions.” S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 718 (2021) (statement of Gorsuch, J.). Our nation’s constitutional history teaches that, when a treatment option remains otherwise available to the public, legislatures should not decide whether that treatment is right or wrong for minor children; parents should make these decisions.
IV.
“In constitutional cases,” such as this one, the other factors governing the issuance of a preliminary injunction tend to fall to the wayside because “the first factor”—likelihood of success on the merits—“is typically dispositive.” Vitolo v. Guzman, 999 F.3d 353, 360 (6th Cir. 2021). Still, those additional factors favor upholding the district courts’ injunctions. “A plaintiff’s harm from the denial of a preliminary injunction is irreparable if it is not fully compensable by monetary damages. When constitutional rights are threatened or impaired, irreparable injury is presumed.” Husted, 697 F.3d at 436 (cleaned up). Minor Plaintiffs’ injuries are all the more irreparable because progressing through adolescence untreated leads to daily anguish and makes adult treatment more complicated. “The two remaining preliminary injunction factors—whether issuing the injunction would harm others and where the public interest lies—merge when,” as is true here, “the government is the defendant.” Kentucky v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). “[N]o cognizable harm results from stopping unconstitutional conduct, so ‘it is always in the public interest to prevent violation of a party’s constitutional rights.’” Vitolo, 999 F.3d at 360 (citation omitted).
V.
The last question is the scope of district courts’ preliminary injunctions. On review of Tennessee’s emergency motion to stay the district court’s injunction of its statute, I agreed with the majority “that the district court abused its discretion in granting a statewide preliminary injunction” while reiterating “the majority’s caveat that today’s decision is preliminary only.” 73 F.4th at 423 (White, J., concurring in part and dissenting in part). With the benefit of more time, I now conclude that the district courts properly issued statewide injunctions.
“[I]njunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Although such relief generally should not run “in favor of persons other than” the plaintiffs to an action, “district courts are not categorically prohibited from granting injunctive relief benefitting an entire class in an individual suit.” Warshak v. United States, 532 F.3d 521, 531 (6th Cir. 2008) (quoting Sharpe v. Cureton, 319 F.3d 259, 273 (6th Cir. 2003)). The reason is simple: “the scope of injunctive relief is dictated by the extent of the violation established.” Yamasaki, 442 U.S. at 702.
Here, the district courts did not abuse their discretion in concluding that enjoining all enforcement was necessary to afford complete relief to Plaintiffs. As the district court in the
I do not agree with the majority that the effect on Minor Plaintiffs’ ability to obtain treatment if they alone are able to undergo treatment, while treatment is prohibited for all others throughout Tennessee and Kentucky, is “speculation.” Maj. Op. 39 (quoting Biden, 57 F.4th at 557). It is not. “The court is not required either to wear blinders or to leave common sense out of the equation.” United States v. West, 799 F. App’x 322, 328 (6th Cir. 2020) (quoting United States v. Miller, 478 F.3d 48, 52 (1st Cir. 2007)). “Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Trump v. Int’l Refugee Assistance Project, 582 U.S. 571, 579 (2017) (per curiam). The district courts here exercised their discretion appropriately.
VI.
As the majority notes, the heated political debate over gender-affirming care has yielded varying laws in Tennessee, Kentucky, and throughout our country. In the normal course, the Constitution contemplates the states acting as laboratories of democracies to resolve the controversies of the day differently. See New State Ice Co v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
Tennessee’s and Kentucky’s laws tell minors and their parents that the minors cannot undergo medical care because of the accidents of their births and their failure to conform to how society believes boys and girls should look and live. The laws further deprive the parents—those whom we otherwise recognize as best suited to further their minor children’s interests—of their right to make medical decisions affecting their children in conjunction with their children and medical practitioners. For these reasons, I dissent.