L. W. v. SkrmettiL. W. v. Skrmetti
Pending before the Court is Plaintiffs’ motion for a preliminary injunction (Doc. No. 21, “Motion“), which is accompanied by a memorandum in support (Doc. No. 33). Defendants filed a response (Doc. No. 112), and Plaintiffs filed a reply (Doc. No. 146). For the reasons stated herein, the Motion will be granted in part and denied in part. A corresponding order will be entered separately.
BACKGROUND FACTS1
On March 2, 2023, the Governor of Tennessee signed into law Senate Bill 1 (hereinafter “SB1” or “the law“), codified at
Specifically, SB1 sets forth bans as follows:
68-33-103. Prohibitions.
(a)(1) A healthcare provider shall not knowingly perform or offer to perform on a minor, or administer or offer to administer to a minor, a medical procedure if the performance or administration of the procedure is for the purpose of:
(A) Enabling a minor5 to identify with, or live as, a purported identity
inconsistent with the minor‘s sex6; or (B) Treating purported discomfort or distress from a discordance between the minor‘s sex and asserted identity.
(2) Subdivision (a)(1) applies to medical procedures that are:
(A) Performed or administered in this state; or
(B) Performed or administered on a minor located in this state, including via telehealth, as defined in § 63-1-155.
SB1 specifies that knowingly performing or offering to perform a medical procedure on a minor does not violate the law if the “medical procedure is to treat a minor‘s congenital defect, precocious puberty, disease, or physical injury.”
Plaintiffs L.W., John Doe, and Ryan Roe (“Minor Plaintiffs“) are transgender minors who all suffer from the condition of gender dysphoria. (Doc. No. 33 at 14-17 (citing Doc. Nos. 22 (Declaration of L.W.); 23 (Declaration of Samantha Williams); 25 (“Jane Doe Decl.“); 24 (Declaration of John Doe); 26 (Declaration of Ryan Roe); 27 (Declaration of Rebecca Roe))). Plaintiffs Brian and Samantha Williams, James and Jane Doe, and Rebecca Roe are the parents of L.W., John Doe, and Ryan Roe, respectively. (Doc. Nos. 23; 25; 27). Plaintiff Dr. Lacy is a physician practicing in Memphis, Tennessee and has been treating patients for gender dysphoria since 2016. (Doc. No. 28 (Declaration of Dr. Susan N. Lacy) at 1-2).
Gender dysphoria is a common condition for transgender people. It arises from the incongruence that transgender people experience between their gender identity and their sex at birth. (Doc. Nos. 33 at 8-9 (citing Doc. No. 29 at 5 (“Adkins Decl.“)); 113-7 at 13 (“Laidlaw Decl.“). Gender dysphoria can be treated through medical intervention. (Adkins Decl. at 1; Laidlaw Decl. at 14-15). The goal of gender dysphoria treatment (sometimes called “gender-affirming treatment,”7 “gender transition,”
On April 20, 2023, Plaintiffs filed a complaint alleging, among other things, that SB1 violates the
PRELIMINARY INJUNCTION STANDARD
“A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urb. Cnty. Gov‘t, 305 F.3d 566, 573 (6th Cir. 2003). “The party seeking a preliminary injunction bears a burden of justifying such relief, including showing irreparable harm and likelihood of success.” Kentucky v. U.S. ex rel. Hagel, 759 F.3d 588, 600 (6th Cir. 2014) (quoting Michigan Cath. Conf. & Cath. Fam. Servs. v. Burwell, 755 F.3d 372, 382 (6th Cir. 2014)).
Those seeking a preliminary injunction must meet four requirements.8 They must show a likelihood of success on the merits; irreparable harm in the absence of the injunction; that the balance of equities favors them; and that public interest favors an injunction. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); Sisters for Life, Inc. v. Louisville-Jefferson County, 56 F.4th 400, 403 (6th Cir. 2022). Plaintiffs seeking a preliminary injunction may not merely rely on unsupported allegations, but rather must come forward with more than “scant evidence” to substantiate their allegations. See, e.g., Libertarian Party of Ohio v. Husted, 751 F.3d 403, 417 (6th Cir. 2014); Cameron v. Bouchard, 815 F. App‘x 978, 986 (6th Cir. 2020) (vacating preliminary injunction when plaintiffs made no evidentiary showing on some elements of their claim, but instead made mere allegations regarding the treatment of Covid-19 in prisons); McNeilly v. Land, 684 F.3d 611, 614 (6th Cir. 2012) (upholding denial of preliminary injunction when plaintiff made only a “small showing” of evidence); United States v. Certain Land Situated in City of Detroit, No. 95-1118, 1996 WL 26915, *1 n.1 (6th Cir. Jan. 23, 1996) (noting
DISCUSSION
Plaintiffs bring a facial challenge alleging that SB1 is unconstitutional.9 According to Plaintiffs, SB1 violates the Due Process Clause of the Fourteenth Amendment because it interferes with the right of a minor‘s parents to direct the medical care of their children. (Doc. No. 33 at 26). Plaintiffs further contend that SB1 violates the Equal Protection Clause of the Fourteenth Amendment because the law imposes disparate treatment on the bases of transgender status and sex and is not substantially related to an important state interest.
As for the requested remedy, Plaintiffs’ Motion indicates that Plaintiffs request a state-wide injunction of SB1 in its entirety. (Doc. No. 21 at 1) (requesting an injunction restraining Defendants from enforcing “any provision” of SB1); (Doc. No. 33 at 31). In their reply, however, Plaintiffs state that their proposed relief does not encompass the private right of action codified at
1. STANDING
Before addressing the merits of the Motion, the Court first addresses two standing issues. To have Article III standing, a plaintiff must establish “(1) an injury in fact, meaning an invasion of a legally protected interest [that] is (a) concrete and particularized and (b) ‘actual or imminent, not “conjectural” or “hypothetical“; (2) “a causal connection between the injury and the conduct complained of, i.e., the injury complained of must be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court“; and “(3) that it is likely, as opposed to merely speculative, that the injury will be ‘redressed by a favorable decision.‘” Phillips v. DeWine, 841 F.3d 405, 414 (6th Cir. 2016) (internal quotation marks omitted).
Defendants argue that Dr. Lacy does not have standing to assert the rights of her patients and of the parents of her patients. (Doc. No. 112 at 21). But “[w]hen one party has standing to bring a claim, the identical claims brought by other parties to the same lawsuit are justiciable.” See Knight v. Montgomery Cnty. Tenn., 592 F. Supp. 3d 651, 671 (M.D. Tenn. 2022) (internal quotation marks omitted). So “in a multiple-plaintiff case, a court need not consider the standing of other plaintiffs once one plaintiff is determined to have standing.” Id.; see also Parsons v. U.S. Dep‘t of Justice, 801 F.3d 701, 710 (6th Cir. 2015) (“A plaintiff must have standing for each claim pursued in federal court. [] However, only one plaintiff needs to have standing in order for the suit to move forward.“) (internal citation omitted). Dr. Lacy and the other Plaintiffs bring the same claims under the Equal Protection Clause and Due Process Clause. Defendants do not contest that the other Plaintiffs have standing for their due process claim and equal protection claim, and the Court is satisfied that they do in fact have standing for these claims. Because Plaintiffs other than Dr. Lacy have standing for the same claims as those brought by Dr. Lacy, the Court need not determine whether Dr. Lacy also has standing.11
Defendants also contend that no Plaintiff in this action has standing to challenge SB1‘s ban on surgeries as treatment for gender dysphoria. (Doc. No. 112 at 21);
The Court‘s analysis below thus focuses on whether Plaintiffs are substantially likely to succeed on their argument that the remaining portions of SB1 (i.e., SB1 to the extent that it bans other kinds of “medical procedure[]“) that Plaintiffs challenge violate the Equal Protection and Due Process clauses.
2. LIKELIHOOD OF SUCCESS ON THE MERITS
A. Due Process Claim
i. Infringement on a Fundamental Right
The Due Process Clause of the Fourteenth Amendment states that no state shall “deprive any person of life, liberty, or property without due process of law.”
According to Defendants, Plaintiffs’ reliance on a parent‘s fundamental right to direct the medical care of his or her child is flawed because Plaintiffs describe the right with excessive generality. (Doc. No. 112 at 8-9). Defendants further argue that no right of a parent to have the medical treatments banned by SB1 be administered on that parent‘s child existed at the time of ratification of the Fourteenth Amendment, and therefore such a right is not fundamental for the purposes of the Due Process Clause. (Id.).
The Court certainly grasps Defendants’ argument. But the Sixth Circuit‘s decision in Kanuszewski stands in direct contradiction to Defendants’ argument. In Kanuszewski, the Sixth Circuit assessed whether the Michigan Newborn Screening Program (“NSP“) violated the Due Process Clause of the Fourteenth Amendment. See Kanuszewski, 927 F.3d at 403-404. The NSP involved the mandatory collection of blood samples from newborns to test for diseases, and these blood samples would then be stored by the Michigan Neonatal BioBank for future use by the state. See
On appeal from the district court‘s dismissal of the complaint, the Sixth Circuit was faced with the plaintiffs’ assertion of two alleged fundamental rights, one against the collection of the blood samples and one against the retention of the blood samples. As for the alleged violation of the asserted right against collection of blood samples under the NSP, the court found that the defendants were entitled to qualified immunity because it was not yet clearly established that parents had a right to control their children‘s medical care. See
The court then turned to whether the plaintiffs had stated a claim under the Due Process Clause based on Defendants’ retention of the blood sample under the NSPs. See
The court in Kanuszewski therefore defined the fundamental right at issue at the same level of generality as Plaintiffs do in
Defendants argue that the Court should decline to rely on Kanuszewski because it involved whether the parents had a right to refuse the drawing of the blood samples and long-term storage of the samples, whereas the issue in this case is a parent‘s right for their children to receive certain procedures. (Doc. No. 112 at 9). This distinction, between what may be considered a “negative” right and a “positive” right, is certainly cognizable; it is one thing to have a right against a non-consensual invasion of the body, and another thing to have a right to have affirmative treatment of the body (invasive or otherwise). But the distinction ultimately is inconsequential here. The court in Kanuszewski gave no indication that its analysis of the parents’ due process claim turned on the fact that the parents were seeking to refuse rather than receive medical treatment for their children—i.e., were asserting a negative right rather than a positive (affirmative) right. The court in Kanuszewski could have said that the parents had a right to refuse medical care for their children, but it did not do so; instead, it chose to define the recognized right as a right of the parent to direct the medical care of their children. Absent any court-provided limitation on the term, the right to “direct” care would naturally include the right to refuse certain treatments and the right to request provision of certain treatments. For this reason also, Defendants’ reliance on Washington v. Glucksberg, 521 U.S. 702 (1997), is unavailing. True, in Washington, the Court said that the right to refuse unwanted medical treatment is not equal to “a right to assistance in committing suicide.” See
The Court therefore agrees with Plaintiffs that under binding Sixth Circuit precedent, parents have a fundamental right to direct the medical care of their children, which naturally includes the right of parents to request certain medical treatments on behalf of their children.
The Court is not alone in finding the existence of such a right, as three other district courts to assess laws almost identical to SB1 have done likewise. See Eknes-Tucker v. Marshall, 603 F. Supp. 3d 1131 (M.D. Ala. 2022) (finding that the right of parents to make decisions concerning the care, custody, and control of their children includes the right to seek care for their children); Brandt v. Rutledge, 551 F. Supp. 3d 882, 892-893 (E.D. Ark. 2021) (“The Court finds that the Parent Plaintiffs have a fundamental right to seek medical care for their children and, in conjunction with their adolescent child‘s consent and their doctor‘s recommendation, make a judgment that medical care is necessary.“), aff‘d 47 F.4th 661 (8th Cir. 2022)14; Doe v. Ladapo, No. 4-23-cv-114, 2023 WL 3833848 (N.D. Fla. June 6, 2023) (finding that
ii. Application of Strict Scrutiny
A law that infringes on a fundamental right must be narrowly tailored to advance a compelling state interest (i.e., it must survive strict scrutiny). See Carey v. Wolnitzek, 614 F.3d 189, 200 (6th Cir. 2010). “If a law does too much, or does too little, to advance the [state‘s] objectives, it will fail.”
B. Equal Protection Claim
The Equal Protection Clause provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”
Plaintiffs argue that SB1 violates the Equal Protection Clause because SB1 treats transgender minors differently from non-transgender minors, and that in doing so, SB1 targets the quasi-suspect class of transgender persons15 and the quasi-suspect classification of sex.16 (Doc.
i. Disparate Treatment Based on Transgender Status
To show that a law violates the Equal Protection Clause based on transgender status or sex, “[g]enerally, a plaintiff must show that [] [the] policy . . . had discriminatory intent. But such a showing is unnecessary when the policy tends to discriminate on its face.” Fain v. Crouch, 618 F. Supp. 3d 313, 326 (S.D. W. Va. 2022). “The Court looks to the language of the policy to determine whether it is facially neutral or whether it explicitly references gendered or sex-related terms.”
SB1 bans a medical procedure if (and only if) the purpose of the procedure is either (i) to enable a minor to live consistently with his or her gender identity if that identity is inconsistent with the minor‘s sex, or (ii) to treat discomfort from a discordance between the minor‘s sex and the minor‘s gender identity. As discussed above, transgender individuals are those whose gender identity is inconsistent with their sex at birth. Gender dysphoria is a condition that results from this incongruence.
The analysis in Crouch applies with equal force to SB1. Although SB1 does not use the word “transgender,” the law plainly proscribes treatment for gender dysphoria—and Defendants do not contest that only transgender individuals suffer from gender dysphoria. The Court therefore agrees with Plaintiffs that SB1 expressly and exclusively targets transgender people. See also Eknes-Tucker, 603 F. Supp. 3d at 1138 (finding that Alabama law preventing minors from accessing medical procedures performed “for the purpose of attempting to alter the appearance of or affirm the minor‘s perception of his or her gender or sex, if that appearance or perception is inconsistent with the minor‘s sex as defined in this act” “prohibits transgender minors—and only transgender minors—from taking transitioning medications due to their gender nonconformity.“).
Defendants’ argument that SB1 does not discriminate based on transgender status is unpersuasive. According to Defendants, not all transgender individuals want the medical procedures banned by SB1, and therefore SB1 does not discriminate on the basis of transgender status. (Doc. No. 112 at 13). Defendants’ argument, however, improperly characterizes the group of people that are affected by SB1. The relevant class is not “individuals who want to receive the medical procedures that are banned by SB1.” Instead, the relevant group is transgender minors. Confronting the exact same argument in Eknes-Tucker, the court in that case explained that the “fundamental flaw in this argument is that the first category [i.e. transgender minors who want the procedures] consists entirely of transgender minors.” See Eknes-Tucker, 603 F. Supp. 3d at 1147. In other words, only transgender minors were affected by the law at issue in Eknes-Tucker, even if not necessarily all transgender minors were affected by the law. The same is true of SB1.
It does not take much creative thinking to understand why Defendants’ argument holds no weight. Imagine a law that said that “no Black individuals can attend graduate school.” Under Defendants’ logic, the law would not discriminate based on race, and thus strict scrutiny would not apply, because there are Black individuals who do not want to attend graduate school as well as Black individuals who do want to attend graduate school. But applying a standard other than strict scrutiny would be preposterous because the law clearly prescribes disparate treatment on the basis of race; under the law, no Black individuals could ever attend graduate school whereas individuals from other races potentially could do so. Therefore, the relevant class would be Black individuals, not “Black individuals who want to attend graduate school.” Likewise in the present case. Under SB1, the only group of individuals that are denied treatment are transgender persons (in particular, transgender minors). It is not relevant that some transgender persons (transgender minors) may not seek out these procedures, just as it would not have been relevant in the example that some
Defendants’ reliance on a footnote from Geduldig v. Aiello, 417 U.S. 484 (1974) also gets them nowhere. In Geduldig, the Supreme Court held that a California disability insurance system administered by the state that excluded coverage for disabilities resulting from pregnancy did not violate the Equal Protection Clause. See
Defendants’ Geduldig-based argument is not original. In rejecting the same argument very recently in Ladapo, Judge Hinkle explained that California‘s system treated men and women the same because under that system “nobody had health coverage for pregnancy,” whereas under the law at issue in Ladapo “transgender and cisgender individuals are not treated the same.” Ladapo, 2023 WL 3833848, at *10. Judge Hinkle‘s rationale applies equally to SB1.19
Additionally, the court in Kadel considered whether North Carolina‘s state healthcare plan that excluded certain treatments for gender transformation and in connection with sex changes or modifications violated the Equal Protection Clause. Kadel, 620 F. Supp. 3d at 378. In rejecting the defendants’ analogy to Geduldig, the court explained that the unlike the system in Geduldig—which excluded benefits based on an “objectively identifiable physical condition with unique
characteristics“—North Carolina‘s plan could not be explained without reference to sex, gender, or transgender status. See id; Crouch, 618 F. Supp. 3d at 317 (rejecting analogy to Geduldig because West Virginia‘s state Medicaid program treated non-transgender individuals more favorably by allowing them to access the same surgeries that were otherwise banned under the program‘s policy); K.C., 2023 WL 4054086, at *8 (distinguishing Geduldig on the ground that Indiana law prohibiting procedures when used for gender transition turned on “sex-based classification,” whereas pregnancy “is not “necessarily a proxy for
Having found that the law subjects individuals to disparate treatment based on transgender status, the Court must next determine whether doing so requires the Court to evaluate SB1 under intermediate scrutiny, as would be the case if transgender individuals constituted a so-called quasi-suspect class.20 The Supreme Court considers four factors to determine whether a class (such as transgender persons as a group) is quasi-suspect, such that disparate treatment of members of that class is subjected to intermediate scrutiny:
(1) whether the class has been historically “subjected to discrimination,” Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 91 L. Ed. 2d 527 (1986); (2) whether the class has a defining characteristic that “frequently bears no relation to ability to perform or contribute to society,” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); (3) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group,” Lyng, 477 U.S. at 638, 106 S. Ct. 2727; and (4) whether the class is “a minority or politically powerless,” id.
Ray v. McCloud, 507 F. Supp. 3d 925, 936–937 (S.D. Ohio 2020).
“There is no binding precedent from the United States Supreme Court or the Sixth Circuit regarding whether transgender people are a quasi-suspect class.”21 See id. at 937. The overwhelming majority of courts to consider the question, however,
Supp. 3d 850, 873 (S.D. Ohio 2016) (holding that transgender individuals constitute a quasi-suspect class both because discrimination on the basis of transgender status is discrimination based on sex and because transgender individuals as a group fulfill the four prongs used by the Supreme Court to define a quasi-suspect class); Grimm v. Gloucester Cnty. School Bd., 972 F.3d 586, 610 (4th Cir. 2020) (holding that transgender individuals constitute a quasi-suspect class); Brandt by and through Brandt v. Rutledge, 47 F.4th 661, 670 n.4 (8th Cir. 2022) (finding that the district court did not commit clear error when it found that transgender individuals constituted a quasi-suspect class); M.A.B. v. Bd. of Educ. Of Talbot Cnty., 286 F. Supp. 3d 704, 719–720 (D. Md. 2018) (finding that all four prongs of the quasi-suspect class test justify treating transgender people as a quasi-suspect class); Flack v. Wis. Dep‘t of Health Servs., 328 F. Supp. 3d 931, 952–953 (W.D. Wisc. 2018) (holding that the plaintiffs had made a strong showing that transgender individuals are a quasi-suspect class); F.V. v. Barron, 286 F. Supp. 3d 1131, 1145 (D. Idaho 2018) (finding that transgender people bear “all of the characteristics of a quasi-suspect class. . .“); Evancho v. Pine-Richland School Dist., 237 F. Supp. 3d 267, 288 (W.D. Pa. 2017) (finding that transgender individuals fulfill all four prongs of the quasi-suspect-class test); Norsworthy, 87 F. Supp. 3d at 1120 (“[T]he Court concludes that discrimination based on transgender status independently qualifies as a suspect classification under the Equal Protection Clause because transgender persons meet the indicia of a “suspect” or “quasi-suspect classification” identified by the Supreme Court.“); Adkins v. City of New York, 143 F. Supp. 3d 134, 139 (S.D.N.Y. 2015) (holding that transgender people are a quasi-suspect class).
The Court is satisfied that current precedent supports the finding that transgender individuals constitute a quasi-suspect class under the Equal Protection Clause. As the court in Ray explained, “there is not much doubt that transgender people have historically been subject to
discrimination including in education, employment, housing, and access to healthcare.” See, e.g., Ray, 507 F. Supp. 3d at 937 (internal quotation marks omitted); Adkins, 143 F. Supp. 3d at 139 (finding that “transgender people have suffered a history of persecution and discrimination“); Bd. of Educ. of the Highland Local School Dist., 208 F. Supp. 3d at 873 (finding that transgender individuals have been historically subject to discrimination).22 Transgender individuals
by achieving relative equal representation in political bodies), affirmed, 570 U.S. 744 (2013).25 Given that transgender individuals fulfill all four prongs, the Court finds that transgender individuals constitute a quasi-suspect class. Therefore, SB1 must survive intermediate scrutiny.26
ii. Disparate Treatment Based on Sex
Satisfied that SB1 imposes disparate treatment on the basis of transgender status, and that transgender individuals constitute a quasi-suspect class, the Court could end here its analysis of what scrutiny applies. The Court, however, finds it prudent to address, additionally and alternatively, Plaintiffs’ argument that SB1 is subject to intermediate scrutiny because it
a) Sex-Based Classification
Several courts have found that laws similar to SB1 (i.e. those that deny access or healthcare coverage to medical procedures if the purpose is to allow the minor to live inconsistently with that minor‘s sex at birth) impose disparate treatment on the basis of sex. See Ladapo, 2023 WL 3833848, at *8 (finding that Florida‘s ban discriminates based on sex because to know how the
ban applied, one must know the sex of the person); Fletcher v. Alaska, 443 F. Supp. 3d 1024, 1030 (D. Alaska 2020) (“AlaskaCare covers vaginoplasty and mammoplasty surgery if it reaffirms an individual‘s natal sex, but denies coverage for the same surgery if it diverges from an individual‘s natal sex. That is discrimination because of sex and makes defendant‘s formal policy, as expressed in the provisions of AlaskaCare, facially discriminatory.“); Kadel, 620 F. Supp. 3d at 376 (finding that North Carolina‘s denial of healthcare coverage for treatments leading to or in connection with sex changes or modifications and related care discriminated on the basis of sex because “[i]t is impossible to determine whether a particular treatment is connected to “sex changes or modifications and related care“—and thus, whether the exclusion applies—without comparing the member‘s biological sex before the treatment to how it might be impacted by the treatment.“); K.C., 2023 WL 4054086, at *8–*9 (explaining that although Indiana law banning gender-affirming treatment for minors “prohibit[ed] both male and female minors from using puberty blockers and cross-sex hormones for gender transition,” it reflected a sex-based classification because under the law it was “impossible for a medical provider to know whether a treatment is prohibited without knowing the patient‘s sex.“). And as the court in Kadel explained, “[a] policy that uses racial or gendered terms ‘falls into an inherently suspect [or-quasi-suspect] category’ even if it creates classifications that are not ‘obviously pernicious.‘” See Kadel, 620 F. Supp. 3d at 375 (quoting Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 485 (1982)).
SB1 prohibits a minor from receiving medical procedures if the purpose is to enable the minor to live as an “identity inconsistent” with the minor‘s sex. See
minor-by-minor basis—therefore requires a comparison between the minor‘s sex at birth and the minor‘s (gender) identity; that is, it requires the ascertainment of whether the minor‘s sex at birth is consistent with that minor‘s (gender) identity. So if a minor‘s sex is female at birth and that minor wants to access hormone therapies27 to enable her to conform her gender identity to her sex at birth (i.e. she wants to live as a girl), SB1 would allow this minor to access such care. However, if a minor‘s sex at birth is male and that minor wanted access the same treatment for the same purpose (i.e. live as
The Court‘s finding is also supported by the recent decision from Judge Hinkle in Ladapo to enjoin a Florida statute‘s general ban (hereinafter, “Florida‘s ban“) on the use of puberty blockers or hormones to “affirm a person‘s perception of his or her sex if that perception is inconsistent with the person‘s [natal] sex.”
Consider an adolescent, perhaps age 16, that a physician wishes to treat with testosterone. Under the challenged statute, is the treatment legal or illegal? To know the answer, one must know the adolescent‘s sex. If the adolescent is a natal male, the treatment is legal. If the adolescent is a natal female, the treatment is illegal. This is a line drawn on the basis of sex, plain and simple. See Brandt, 47 F.4th at 669 (“Because the minor‘s sex at birth determines whether or not the minor can receive certain types of medical care under the law, [the law] discriminates on the basis of sex.“); Adams, 57 F.4th at 801 (applying intermediate scrutiny to a policy under which entry into a designated bathroom was legal or not depending on the entrant‘s natal sex).
See Ladapo, 2023 WL 3833848, at *8. The Court agrees with the point made here and rejects Defendants’ argument (Doc. No. 112 at 10) that SB1 treats minors of all sexes the same. As the Court has demonstrated above, when two individuals want the same procedure under SB1 for the same purpose, whether they respectively can access that procedure will depend on their respective sexes. As many courts have found with respect to materially similar laws to SB1, this constitutes disparate treatment based on sex.28
On this point, Defendants’ argument suffers from a major inconsistency. On the one hand, Defendants assert that minors of both sexes are treated equally under SB1, but they then invoke the Supreme Court‘s rationale in Dobbs for the proposition that the fact that only one sex can receive a medical treatment does not necessarily trigger heightened scrutiny. By
For these reasons, the Court finds that SB1 contains a sex-based classification on its face, and therefore intermediate scrutiny is warranted.30
b) Disparate Treatment Based on Transgender-Status is a Form of Imposing Disparate Treatment Based on Sex
Although the Court has found that SB1 on its face subjects individuals to disparate treatment on the basis of sex, the Court also agrees with Plaintiffs that SB1 subjects individuals to disparate treatment on the basis of sex because it imposes disparate treatment based on transgender status.31 In support of their argument
Plaintiffs rely on the rationale of the Court in Bostock v. Clayton County, 140 S. Ct. 1731 (2020) and of the Sixth Circuit in Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). Both of these cases involved the question of whether discrimination based on transgender status necessarily constitutes discrimination on the basis of sex.
In Bostock, the Court had to determine whether
[T]ake an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee‘s sex plays an unmistakable and impermissible role in the discharge decision.
See id. 140 S. Ct. at 1741–1742.32 Although Bostock was a
minor from accessing certain medical procedures if their purpose is either to allow the minor to live inconsistently with the minor‘s sex at birth or to treat gender dysphoria. Both of these bans affect only transgender minors. The Court need not rehash (and declines to second-guess) the reasoning of Bostock here; suffice it to say that discordance between a person‘s sex at birth and gender identity is what makes the person transgender. Indeed, if the person‘s sex at birth had been different than it actually was (and thus was not discordant with the person‘s gender identity), the person would not be transgender despite having the same gender identity. Therefore, in the Equal Protection context, disparate treatment based on being transgender is disparate treatment based on sex. See Eknes-Tucker, 603 F. Supp. 3d at 1147 (relying on Bostock to support conclusion that discrimination based on transgender status in the equal protection context constitutes discrimination based on sex); Brandt, 551 F. Supp. 3d at 889 (citing Bostock in support of finding that heightened scrutiny applied to the plaintiffs’ equal protection
In arguing that the rationale of Bostock does not apply in this case, Defendants assert that disparate treatment based on transgender status cannot be disparate treatment based on sex because in the decades after ratification of the
The mere existence of these laws does not mean that they were constitutional. As Justice Thomas very recently noted: ““Standing alone,’ . . . ‘historical patterns cannot justify contemporary violations of constitutional guarantees,’ Marsh v. Chambers, 463 U. S. 783, 790 (1983), even when the practice in question ‘covers our entire national existence and indeed predates it,’ Walz v. Tax
Comm‘n of City of New York, 397 U.S. 664, 678 (1970).” United States ex rel. Polansky v. Executive Health Resources, Inc., 143 S. Ct. 1720 at 1740–1741 (2023) (Thomas, J., dissenting).33
And a plurality of the Supreme
In Smith v. City of Salem Ohio, the Sixth Circuit considered whether Jimmie Smith, a former lieutenant of the Salem Fire Department, had stated a
person does not “wear dresses or makeup,” is culpable of “engaging in sex discrimination because the discrimination would not occur but for the victim‘s sex.”36 See Smith, 378 F.3d at 574. The court went on to find that “sex stereotyping based on a person‘s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.” See id. at 575.
Turning then to Smith‘s equal protection claim, the court found that the facts pled by Smith in support of a
approach by the plurality Frontiero, clearly militates against Defendants’ argument that Bostock‘s rationale cannot be extended to the present case.37
In summary, the Court finds that SB1 imposes disparate treatment based on sex due to the fact that the law on its face includes a sex-based classification. In the alternative, the Court also finds that SB1 imposes disparate treatment based on sex because it treats similarly-situated individuals differently based on transgender status. For these reasons, in addition to the Court‘s finding that SB1 discriminates based on transgender status and that transgender individuals constitute a quasi-suspect class, SB1 must survive intermediate scrutiny. The Court now turns to whether the record supports Defendants’ contention that SB1 is substantially related to an important state interest.
iii. Weight of Defendants’ Expert Testimony38
At the outset, the Court agrees with Plaintiffs that the testimony of Dr. Cantor and Dr. Hruz is minimally persuasive39 given that neither of them state that they have ever diagnosed or treated a minor with gender dysphoria. This apparent deficiency in their experience as to the topics to which they testify is relevant given that Plaintiffs present several experts that have diagnosed and treated hundreds of individuals with gender dysphoria. This diminution of their testimony is consistent with the findings of other courts on this issue. For example, in assessing whether Dr. Hruz could testify as an expert, the court in Kadel found that
Hruz is not qualified to offer expert opinions on the diagnosis of gender dysphoria, the DSM , gender dysphoria‘s potential causes, the likelihood that a patient will
“desist,” or the efficacy of mental health treatments. Hruz is not a psychiatrist, psychologist, or mental healthcare professional. He has never diagnosed a patient with gender dysphoria, treated gender dysphoria, treated a transgender patient, conducted any original research about gender dysphoria diagnosis or its causes, or published any scientific, peer-reviewed literature on gender dysphoria.
See Kadel, 620 F. Supp. 3d at 364; see also Eknes-Tucker, 603 F. Supp. 3d at 1142–1143 (giving Dr. Cantor‘s testimony “very little weight” because he had never provided care to a transgender minor under the age of sixteen). Most recently, Judge Hinkle commented that Dr. Hruz‘s testimony was that of a “deeply biased advocate, not [] an expert sharing relevant evidence-based information and opinions,” which then led Judge Hinkle to credit Hruz‘s testimony only insofar as it was consistent with that of other defense experts. Ladapo, 2023 WL 3833848, at *2 n.8. The undersigned sees no current need or basis to accuse Dr. Hruz of being a deeply biased advocate posing as an expert, but he does discern the need to discount Dr. Hruz‘s testimony somewhat for the reasons mentioned.
Although research may be a reasonable basis on which to form conclusions, ultimately individuals who have never administered the medical procedures banned by SB1 or sought to mitigate the risks lack real-world experience regarding the negative side effects allegedly associated with these treatments.40
The Court acknowledges that typically credibility determinations in resolving a motion for a preliminary injunction can be made only where a court has held an evidentiary hearing. See Certified Restoration Dry Cleaning Network, LLC v. Tenke Corp., 511 F.3d 535, 553 (6th Cir. 2007). The Court, however, provided the parties with an opportunity to have an evidentiary hearing that included testimony from the parties’ respective experts, but the parties did not indicate to the Court that they found such a hearing necessary before the resolution of the present Motion.41 Therefore, in the Court‘s view, the parties have waived any argument that the Court cannot make credibility findings based on the written evidence of the parties’ experts.
Next, the Court finds it necessary to evaluate the parties’ arguments regarding the reliability of the WPATH and Endocrine Society guidelines. WPATH is the leading association of medical and mental health professionals in the treatment of transgender individuals. (Adkins Decl. at 3). The Endocrine Society is an organization representing more than 18,000 endocrinologists. (Id. at 6). The Endocrine Society and WPATH have published widely accepted guidelines for treating gender dysphoria. (Id. at 6). The guidelines are based on scientific research and clinical experience. (Id.). The guidelines have been endorsed by the American Academy of Pediatrics (“AAP“), which is an association representing more than 67,000 pediatricians. (Id.). AAP, WPATH, and the Endocrine Society are the largest professional associations in these fields of medicine in the United States. (Id.). On behalf of Plaintiffs, Dr. Adkins has testified that the “[t]he Endocrine Society Guideline for treatment of gender dysphoria is comparable to other clinical practice guidelines that I follow as a pediatric endocrinologist to treat other medical conditions
such as those practice guidelines for Congenital Adrenal Hyperplasia (CAH) and Polycystic Ovary Syndrome (PCOS).” (Id. at 8).
Defendants attempt to discredit the WPATH and Endocrine Society guidelines by pointing out that the conclusions contained therein are based on “low-quality evidence.” (Doc. No. 112 at 15). The Court does not begrudge Defendants trying to make hay out of this, but ultimately Defendants’ argument is not persuasive. As explained by Dr. Antommaria, the Grading of Recommendations Assessment, Development, and Evaluation (“GRADE“) system permits conclusions to be drawn based on what is considered “low-quality evidence.” (Doc. No. 142 (Rebuttal Declaration of Dr. Armand H. Matheny Antommaria) at 6). And as Dr. Antommaria demonstrated, the WPATH and Endocrine Society guidelines, to the extent that they rely on what is considered “low-quality evidence,” are not unique in this respect. For example, 20% of the American Heart Association‘s Guideline for Pediatric Basic and Advanced Life Support include strong recommendations based on evidence of similar quality. (Id.). That portions of the Endocrine Society and WPATH guidelines are based on “low-quality evidence” as determined by the GRADE system is therefore not itself a reason to find the guidelines unreliable. The court in Ladapo, in assessing the argument regarding “low quality evidence,” arrived at the same conclusion:
[T]he fact that research-generated evidence supporting these treatments gets classified as “low” or “very low” quality on the GRADE scale does not mean the evidence is not persuasive, or that it is not the best available research-generated evidence on the question of how to treat gender dysphoria, or that medical treatments should not be provided consistent with the research results and clinical evidence. It is commonplace for medical treatments be provided even when supported only by research producing evidence classified as “low” or “very low” on this scale
2023 WL 3833848, at *11. The Court finds further support for its reliance on information contained in the guidelines in the fact that several courts in cases similar to this have relied on
these guidelines. See, e.g., id. (finding that WPATH and Endocrine Society guidelines represent the well-established standards of care for treatment of gender dysphoria); Eknes-Tucker, 603 F. Supp. 3d at 1138 (relying on WPATH guidelines and explaining that “[t]he American Medical Association, the American Pediatric Society, the American Psychiatric Association, the Association of
v. Important State Interest
When a law contains a quasi-suspect classification or treats individuals differently based on their membership in a quasi-suspect class, the law must survive intermediate scrutiny. The Supreme Court has stated that intermediate scrutiny requires that the law be supported by an “exceedingly persuasive justification.”42 See, e.g., Bd. of Educ. of the Highland Local School
Dist., 208 F. Supp. 3d at 871 (explaining that the Supreme Court has consistently found that a party seeking to defend “discriminatory classifications on the basis of sex must offer” an exceedingly persuasive justification). But the Supreme Court has also stated more specifically that to meet this burden, the state must demonstrate that the law is substantially related to an important state interest. See id. The state interest must be real rather than speculative. See id. The Court will rely on the specific test for intermediate scrutiny, rather than the ultimately unhelpful characterization that intermediate scrutiny requires an “exceedingly persuasive justification.” See United States v. Virginia, 518 U.S. 515, 573 (1996) (Scalia, J., dissenting) (criticizing the majority opinion finding Virginia Military Institute‘s exclusion of women from citizen-soldier training violative of the Equal Protection Clause, on the ground that it is supported “[o]nly by the amorphous ‘exceedingly persuasive justification’ phrase, and not the standard elaboration of intermediate scrutiny.“).
Defendants assert that the state has an important interest in protecting minors from the risks associated with the medical procedures banned by SB1 because ultimately the risks outweigh the benefits. (Doc. No. 112 at 14–21). Unsurprisingly, Plaintiffs argue the inverse—that the state does not have an important interest, because (according to Plaintiffs) the benefits
The Court finds it prudent to make a few initial observations about what some may expect the effects to be of the medical procedures banned by SB1. It is feasible that one might assume
that because these procedures are intended to have the treated minor‘s body do something that it otherwise would not do (rather than allow the body to function in a purportedly “natural” manner), the procedure must be “bad” or “harmful” to the minor. But assumptions are not a sufficient evidentiary basis on which to resolve a motion for a preliminary injunction. And unlike individuals that may base their conclusions about the effects of the procedures banned under SB1 on mere assumptions, the Court fortunately has a voluminous (albeit still preliminary) evidentiary record on which to base its current conclusions. Thus, the Court can, must, and does base its current conclusions on the record to date, without resort to any unsupported, bare medical assumptions.
a) Defendants’ Allegations of Harms Caused by the Medical Procedures Banned by SB1
According to Defendants, the negative side effects from the medical procedures banned by SB1 include risk of “delayed development, permanent sterilization, loss of sexual function, decreased bone density, increased risk of cardiovascular disease and cancer, negative psychological consequences, and a lifetime dependence on these drugs.” (Doc. No. 112 at 14). In making these allegations, Defendants rely on the testimony of Drs. Cantor, Hruz, Levine and Laidlaw. As noted above, the Court finds Dr. Cantor and Hruz‘s testimony minimally persuasive based on the current record. The Court addresses each possible negative side effect in turn in light of the record.43
As for causing delayed development (a reference, the Court presumes, to brain development), Defendants rely on the testimony of Dr. Cantor. (Doc. No. 112 at 15). A review of his testimony on this topic reveals that Dr. Cantor does not provide a conclusion that treatment for gender dysphoria has a negative impact on brain development. (Doc. No. 113-3 (“Cantor Decl.“) at 98) (explaining that there have been no “substantial studies to identify such impacts” and that the only two existing studies had “conflicting results“). By contrast, Dr. Adkins, who has treated hundreds of transgender “youth,”44 testified that “[t]here is no research suggesting
The risk discussed perhaps most extensively by Defendants’ experts is the risk that a patient can experience infertility as a result of the procedures banned by SB1. (Doc. Nos. 113-5 (“Levine Decl.“) at 70, Laidlaw Decl. at 21). However, the evidence of record overwhelmingly demonstrates that many individuals receiving puberty blockers or cross-sex hormones will remain fertile for procreation purposes, and that the risk of negative impacts on fertility can be mitigated.
In her declaration, Dr. Adkins testified that “[m]any transgender individuals conceive children after undergoing hormone therapy. Pregnancy among trans men after undergoing testosterone therapy is very common.” (Adkins Rebuttal Decl. at 12); Doc. No. 30 (“Antommaria Decl.“) at 19 (“[T]ransgender men and women are also capable of producing eggs and sperm respectively both during and after the discontinuation of gender-affirming hormone treatment“)). Indeed, as explained by Dr. Adkins, “a recent eight-year study found that four months after stopping testosterone treatment, transgender men had comparable egg yields to non-transgender women.” (Adkins Rebuttal Decl. at 12). Dr. Adkins also acknowledged that patients who move directly from puberty blockers to cross-sex hormones (referred to by Dr. Adkins as “gender-affirming hormones“) may have their fertility impacted. (Id.). For these patients, fertility preservation options are available. (Id.). For example, as Dr. Janssen has explained, he has had adolescent transgender patients “who chose to preserve their sperm and or eggs for future assisted reproduction by stopping puberty suppression briefly before initiating gender-affirming hormones [i.e. cross-sex hormones].” (Doc. No. 31 (“Janssen Decl.“) at 16).
The testimony of Plaintiffs’ experts is consistent with the information provided by the WPATH and Endocrine Society guidelines. Indeed, the WPATH guidelines explain that “there is evidence that fertility is still possible for individuals taking estrogen and testosterone.” (Doc. No. 113-9 (“WPATH Guidelines“) at 90).45 Though the record does reflect that the procedures banned by SB1 pose some risk to fertility, it also demonstrates that not all individuals will experience this negative side effect of the treatments and that there are fertility preservation measures available to those who have concerns about fertility. The Court is therefore not convinced that possible negative impacts on fertility warrant an outright ban on procedures used to treat gender dysphoria in minors.
Defendants’ expert Dr. Levine contends that some individuals who have
Moreover, the guidelines tell a different story on all fronts. The Endocrine Society guidelines state that “genital sexual responsivity and other aspects of sexual function are usually preserved” even following genital-affirming surgery.47 (Endocrine Society Guidelines at 26). The WPATH guidelines, while acknowledging the risk of negative effects on sexual function, also state that “gender affirming care can help [transgender individuals] improve their sexual function and increase their sexual pleasure and satisfaction.” (WPATH Guidelines at 170). The guidelines also recommend that physicians discuss with patients possible adverse consequences on sexual function.48 For the reasons stated, the Court does not find Dr. Levine‘s testimony on this subject persuasive, particularly in light of the conclusions contained in the guidelines that contradict his findings.
Dr. Levine also testified to the concerns of bone density problems in connection with the administration of puberty blockers. (Levine Decl. at 66). Although Dr. Levine testified that the treatment cannot be considered “safe,” he also admits that the “available evidence remains limited and conflicting” and that some “studies have found less-concerning effects on bone density.” (Id.). And Dr. Adkins’ testimony reveals that studies have shown “no changes in bone mineralization” among patients who received puberty blockers for a period of three to five years for precocious puberty. (Adkins Rebuttal Decl. at 6-7). Dr. Adkins also explains that the longest her patients receive puberty blockers is three years.49 (Id. at 8). Given that Dr. Levine‘s testimony itself contains the above-discussed inconsistencies and illogical inferences, and in light of the testimony of Dr. Adkins, the Court is not persuaded
Relying on the testimony of Dr. Laidlaw and Levine, Defendants allege that the procedures banned by SB1 also increase the risk of cardiovascular disease. Dr. Levine‘s testimony on this topic is not persuasive. Levine explains that although there may be an increased risk of cardiovascular issues with the use of cross-sex hormones, he agrees with the Endocrine Society committee that there is insufficient evidence to conclude that these procedures have the outcome of increased risk of cardiovascular disease and that more research is necessary. (Levine Decl. at 71).
Dr. Laidlaw‘s testimony regarding an increased risk of cardiovascular disease appears to rest on firmer ground than that of Dr. Levine, but it ultimately falls short in light of the additional evidence in the record pertaining to this subject. (Laidlaw Decl. at 31-35). Beginning with Dr. Adkins’ rebuttal declaration, based on treating over 600 “youth” for gender dysphoria, Dr. Adkins testified that an increased risk of cardiovascular disease in transgender women is “usually only present when a patient is denied care and self-administers the treatment without appropriate clinical supervision.” (Adkins Rebuttal Decl. at 9-10). Dr. Adkins further stated that “[t]ransgender men do not have more cardiovascular disease like stroke or heart attack than cisgender men,” and that risks of cardiovascular disease in transgender women (which Adkins explains can be present when the patient is taking older formulations of estrogen) can be ameliorated through being closely monitored by a physician. (Id. at 10).50
Dr. Adkins’ testimony is also consistent with the WPATH and Endocrine Society guidelines. For example, the WPATH guidelines state that primary care physicians can mitigate against the risk of cardiovascular disease during hormone therapy by “providing a timely diagnosis and treatment of risk conditions and by tailoring their management in a way that supports ongoing gender-affirming interventions.” (WPATH Guidelines at 150); (Endocrine Society Guidelines at 24 (“Clinicians should manage cardiovascular risk factors as they emerge according to established guidelines.“)).51 The weight of
Finally, the Court turns to Defendants’ allegation that treatment for gender dysphoria increases the risk of cancer. In support of this allegation, Defendants cite relevant portions of Drs. Cantor, Hruz, and Laidlaw‘s declarations, all of whom aver that hormone treatment may lead to an increased risk of certain cancers. (Cantor Decl. at 102, Doc. No. 113-4 (Declaration of Dr. Hruz) at 41, Laidlaw Decl. at 31-32). Dr. Adkins, by contrast, testified that in her clinical experience, she has “rarely seen” the side effect of an increased risk of cancer in her patients. (Adkins Rebuttal Decl. at 9). Dr. Adkins’ observation based on clinical experience—which neither Dr. Cantor nor Dr. Hruz has—is consistent WPATH and Endocrine Society guidelines. For example, the WPATH guidelines note that “the risk of cancer in individuals seeking gender-affirming breast augmentation or mastectomy is similar to that in the general population (even in the setting of hormone use)” and therefore “existing screening guidelines need to be followed.” (WPATH Guidelines at 134); (Endocrine Society Guidelines at 25) (discussing the risk of cancer in transgender population and explaining that studies have not suggested an increased risk of breast cancer, prostate cancer, or endometrial cancer though acknowledging that some cases of ovarian cancer have been reported). Though a close question, ultimately the weight of the evidence of record does not support Defendants’ allegation that the medical procedures banned by SB1 increase an individual‘s risk of certain cancers.
The Court is not of the mind that the medical procedures banned by SB1 pose no risk to the patients receiving them. Indeed, as with virtually all medical procedures, treatment for gender dysphoria carries with it the risk of negative side effects. The Court also acknowledges that evaluating and weighing the competing views of the parties’ experts and conclusions in the guidelines is not a perfect science. As in many cases, the Court is forced to make a judgment call on what position is best supported by the record. In doing so, the Court has not turned a blind eye to the risks associated with the medical procedures banned by SB1. To the contrary, the Court has reviewed the relevant evidence on the record and has found that ultimately Defendants’ allegations of these harms and their prevalence is not supported by the record.52 Instead, the
The Court‘s analysis would also not be complete without evaluating the evidence suggesting that the medical procedures banned by SB1 confer certain benefits on the recipients (i.e. the patients). See Ladapo, 2023 WL 3833848, at *12 (“that there are risks does not end the inquiry.“). Certainly, whether a medical procedure is beneficial affects whether the state has an important interest in banning that procedure. Therefore, having evaluated the evidence regarding Defendants’ allegations of the risks associated with treatment for gender dysphoria, the Court now turns to the purported benefits of the procedures.
b) Benefits of the Medical Procedures Banned by SB1
Plaintiffs contend that the medical procedures banned by SB1 confer important benefits on patients. (Doc. No. 33 at 12). Based on its review of the record, the Court agrees. Dr. Adkins has testified that “[a]ll of [her] patients who have received medical treatment for gender dysphoria have benefitted from clinically appropriate treatment.” (Adkins Decl. at 5). As explained by Adkins, “many individuals with gender dysphoria have high rates of anxiety, depression[,] and suicidal ideation. I have seen in my patients that without appropriate treatment this distress impacts every aspect of life.” (Id. at 5). Dr. Adkins also noted in her testimony that “[f]or some individuals, this treatment can eliminate or reduce the need for surgical treatment.” (Id. at 14-15).
Consistent with Dr. Adkins’ observations based on her clinical experience, Dr. Antommaria
In a 2020 study published in Pediatrics, the official journal of the American Academy of Pediatrics, researchers concluded that “[t]reatment with pubertal suppression among those who wanted it was associated with lower odds of lifetime suicidal ideation when compared with those who wanted pubertal suppression but did not receive it. Suicidality is of particular concern for this population because the estimated lifetime prevalence of suicide attempts among transgender people is as high as 40%.”
(Adkins Decl. at 16). Defendants’ assertion that gender-affirming treatment does not improve mental health outcomes relies solely on the testimony of Dr. Cantor, who seems never to have treated an individual for gender dysphoria. But the weight of evidence in the record suggests the contrary—that treatment for gender dysphoria lowers rates of depression, suicide, and additional mental health issues faced by transgender individuals. And at the risk of sounding like a broken record, the Court notes that several courts, based on the respective records in those cases, have found the same. See Brandt, 551 F. Supp. 3d at 891 (“Every major expert medical association recognizes that gender-affirming care for transgender minors may be medically appropriate and necessary to improve the physical and mental health of transgender people.“); Ladapo, 2023 WL 3833848, at *5 (crediting expert testimony that denial of gender-affirming treatment will “increase anxiety, depression, and risk of suicide.“); Eknes-Tucker, 603 F. Supp. 3d at 1150 (“The record shows that, without transitioning medications, Minor Plaintiffs will suffer severe medical harm, including anxiety, depression, eating disorders, substance abuse, self-harm, and suicidality.“); Fain, 618 F. Supp. 3d at 330 (finding that “[t]he medical treatments for gender dysphoria have been studied extensively, and have been shown to improve “quality of life and measures of mental health” for patients. . .“). The Court therefore finds that the benefits of the medical procedures banned by SB1 are well-established by the existing record.
c) Defendants Have Not Met Their Burden of Demonstrating an Important State Interest
To summarize the Court‘s findings on the alleged harms and benefits of the medical procedures banned under SB1, the Court ultimately finds that the weight of the evidence at this stage in the proceedings does not support Defendants’ allegations that either puberty blockers or cross-sex hormones pose serious risks to the minors receiving these treatments for gender dysphoria. As discussed in detail above, the record suggests that either 1) the risks identified by Defendants are not more prevalent in transgender individuals receiving the procedures banned by SB1 than in individuals not receiving these procedures; 2) to the extent that individuals
The Court acknowledges that the state feels strongly that the medical procedures banned by SB1 are harmful to minors. The medical evidence on the record, however, indicates otherwise. It is undisputed that every major medical organization to take a position on the issue, which includes the AAP, American Medical Association, American Psychiatric Association, American Psychological Association, and American Academy of Child Adolescent Psychiatry, agrees that puberty blockers and cross-sex hormone therapy are appropriate and medically necessary treatments for adolescents when clinically indicated. (Janssen Decl. at 10). It is of little surprise, therefore, that all major medical organizations oppose outright bans on gender-affirming medical care for adolescents with gender dysphoria. (Doc. No. 32 (“Turban Decl.“) at 4); see also Brandt, 551 F. Supp. 3d at 891 (“[e]very major expert medical association recognizes that gender-affirming care for transgender minors may be medically appropriate and necessary to improve the physical and mental health of transgender people.“). The opinions of major medical organizations as they exist at any one time are not necessarily correct merely by the virtue of being the opinion of a major medical organization—which is why they have been known to change on a particular topic over time—and the Court does not herein find conclusively that the opinions here are correct. But they certainly are entitled to weight in a context like the present one.
As illustrated by the discussions above, the Court finds that at this juncture, SB1 is not supported by an important state interest. In other words, for the purposes of determining whether Plaintiffs are entitled to the preliminary relief they seek, the Court is not persuaded that Defendants have met their burden in showing that SB1 survives intermediate scrutiny. It follows that Plaintiffs have met their burden of showing that they are substantially likely to succeed on the merits of their equal protection claim. Of course, the Court recognizes that at summary judgment or trial, Defendants potentially could provide additional evidence that suffices to meet their burden.
Though the Court has already found that Defendants have failed to demonstrate an important interest based on the current record, and therefore could end its analysis here, the Court finds it prudent to address whether SB1 is substantially related to the state‘s purported interest.
vi. Substantial Relation Requirement
Even where a law reflects an important state interest, the law survives intermediate scrutiny only if the law in question is substantially related to that
At this stage in the litigation, the Court finds that Defendants have not demonstrated that SB1 is substantially related to the state‘s asserted interest. Defendants’ argument is that the state has an important interest in protecting minors from allegedly dangerous medical procedures. Yet, the medical procedures banned by SB1 because they are purportedly unsafe to treat gender dysphoria in minors (which, as discussed above, necessarily means treatment for transgender minors) are not banned when provided to treat other conditions. Indeed, SB1 explicitly permits the very medical procedures that it bans for treatment of gender dysphoria, if those procedures are being used to “treat a minor‘s congenital defect, precocious puberty, disease [excluding gender dysphoria], or physical injury.”
True, all that is required under intermediate scrutiny is a “reasonable fit” between the state‘s interest and the challenged law. However, in the Court‘s view, the difference in treatment under SB1 between gender dysphoria and other conditions is not “reasonable“; it is instead in all likelihood arbitrary. Consider the following example involving a hypothetical minor who is diagnosed with precocious puberty at the age of eight years old (meaning that the minor has started puberty at eight years of age). The minor‘s parents agree with a doctor to place the minor on puberty blockers to delay puberty until the proper age. Under SB1, this treatment would be permissible. A few years pass by, and the minor realizes that he is in fact a transgender boy, and he exhibits symptoms of gender dysphoria. Around this time is when he would also stop receiving puberty blockers for precocious puberty. The minor and his parents make an appointment with a doctor who treats gender dysphoria. The doctor decides that the proper treatment for the minor‘s gender dysphoria for his age is the use of puberty blockers. Under SB1, although the minor was lawfully on puberty blockers for several years to treat precocious puberty and is slated to come off of them for this treatment, SB1 would not allow him to continue to take the exact same drugs for treatment of his gender dysphoria.
The only evidence in the record that Defendants identify to justify this disparate
In short, the Court agrees with Judge Hinkle‘s observation in finding “[t]hat the FDA has not approved these drugs for treatment of gender dysphoria says precisely nothing about whether the drugs are safe and effective when used for that purpose. Off-label use of drugs is commonplace and widely accepted across the medical profession. . . .” Ladapo, 2023 WL 3833848, at *15.54 As Judge Hinkle went onto explain, “[t]he FDA approval goes no further—it does not address one way or the other the question of whether using these drugs to treat gender dysphoria is as safe and effective as on-label uses.” See id. Although FDA approval of the medications to treat gender dysphoria could have benefited Plaintiffs’ argument that the medications are safe when used for this purpose, the fact that the FDA has not yet given this approval does not advance Defendants’ argument that use of the medications for this purpose is unsafe. Defendants do not even suggest that pharmaceutical companies have applied for FDA approval or are planning to do so. The Court is therefore not persuaded that the fact of the FDA‘s silence on the approval of the medical procedures banned under SB1 for treatment of gender dysphoria somehow indicates that these treatments are unsafe when used for that purpose.55
SB1 is not alone in suffering from the fatal defect of falling short on the substantial-relation
If the State‘s health concerns were genuine, the State would prohibit these procedures for all patients under 18 regardless of gender identity. The State‘s goal in passing Act 626 was not to ban a treatment. It was to ban an outcome that the State deems undesirable. In other words, Defendants’ rationale that the Act protects children from experimental treatment and the long-term, irreversible effects of the treatment, is counterintuitive to the fact that it allows the same treatment for cisgender minors as long as the desired results conform with the stereotype of their biological sex.
See Brandt, 551 F. Supp. 3d at 891. The Court breaks ranks with Brandt insofar as Brandt afforded significance to the state‘s sincerity (or lack thereof) in its expression of concerns for the health of minors. The Court declines to opine on the state‘s sincerity of such expression in this case, since what matters here is not the state‘s sincerity (a subjective matter) but rather the degree of reasonableness of the fit between such concerns and the ban imposed by SB1 (an objective matter). On the (objective matter) at issue here, the Court finds on the present record that SB1 is not proportionate to the state‘s interest of protecting children from allegedly dangerous medical treatments. Instead, SB1 objectively is severely underinclusive in terms of the minors it protects from the alleged medical risks of the banned procedures; it bans these procedures for a tiny fraction of minors, while leaving them available for all other minors (who would be subjected to the very risks that the state asserts SB1 is intended to eradicate). For these reasons, the Court finds that SB1 likely is not substantially related to the state‘s asserted interest. SB1 therefore likely fails intermediate scrutiny, even assuming arguendo (contrary to the Court‘s finding above) that the state interest was deemed likely to be an important interest.
In light of the evidence on the record, and the Court‘s discussion above, the Court finds that SB1 is unlikely to survive intermediate scrutiny. Specifically, the Court finds that the record does not support a finding that Defendants are likely to succeed on their position that SB1 is substantially related to an important state interest. It follows that Plaintiffs are substantially likely to succeed on their claim that SB1 violates the Equal Protection Clause to the extent that it prohibits medical procedures other than surgery. The Court now turns to whether Plaintiffs have fulfilled the remaining requirements necessary to issue a preliminary injunction.56
3. IRREPARABLE HARM
To be successful in a request for a preliminary injunction, a plaintiff must demonstrate irreparable harm. “A plaintiff‘s harm from the denial of a preliminary injunction is irreparable if it is not fully compensable by monetary damages.” Overstreet v. Lexington-Fayette Urban Cnty. Gov‘t, 305 F.3d 56, 578 (6th Cir. 2002). To constitute irreparable harm (meaning, as just indicated, irreparable harm in the absence of a preliminary injunction), the harm must be “actual and imminent harm rather than harm that is
Plaintiffs in this case have demonstrated irreparable harm. As the Sixth Circuit has acknowledged, “a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff‘s constitutional rights.” See Overstreet, 305 F.3d at 578. The Court has found that Plaintiffs are substantially likely to succeed on their claims that SB1 violates the Equal Protection Clause and the Due Process Clause. Therefore, a denial of the requested injunction (and enforcement of SB1) would cause irreparable harm by infringing on Plaintiffs’ constitutional rights.
Looking beyond this basis for demonstrating irreparable harm, the Court also agrees that Minor Plaintiffs likely57 will suffer actual and imminent injury in the form of emotional and psychological harm as well as unwanted physical changes if they are deprived access to treatment of their gender dysphoria under SB1.58 Indeed, each Minor Plaintiff has submitted a declaration that details the negative consequences they expect to endure as a result of SB1 becoming effective.59 (Doc. Nos. 22, 24, 26). These expectations are not mere conjecture but instead are supported by the medical evidence on the record. (Adkins Decl. at 5) (explaining that leaving gender dysphoria untreated can result in severe anxiety, depression, self-harm, and suicidal ideation). Several courts have found similar imminent harms to satisfy the irreparable harm requirement. See Eknes-Tucker, 603 F. Supp. 3d at 1150 (finding suffering of anxiety, depression, and suicidality as a result of inability to access gender-affirming care constituted irreparable harm); Brandt, 551 F. Supp. 3d at 892 (finding that plaintiffs met the irreparable harm requirement because denial of access to gender-affirming care will cause physical and psychological harm); Ladapo, 2023 WL 3833848, at *16 (finding irreparable harm requirement met where denial of gender-affirming care will cause “unwanted and irreversible onset and progression of puberty in [the plaintiffs‘] natal sex. . .“).
Defendants’ arguments that Plaintiffs have not met the irreparable-harm requirement are unavailing. Defendants argue that Plaintiffs’ harms are not irreparable because although SB1 becomes effective on July 1, 2023, Plaintiffs can continue to receive treatment until March 31, 2024 under the continuing-care exception, codified at
Second, and perhaps even more importantly, the record demonstrates undisputedly that the continuing care exception will cause doctors to titrate down their minor patients’ medications. (Doc. No. 113-1 at 111 (page from Declaration of Dr. Cassandra Brady); Doc. No. 140 (Rebuttal Declaration of Dr. Susan N. Lacy) at 1; Jane Doe Decl. at 1). Titrating down (meaning decreasing the dosages) the treatments for gender dysphoria will lead to physical changes that are consistent with the patients’ sex at birth (i.e. inconsistent with their current gender identity), which will have the follow-on effect of worsening the patients’ dysphoria. (Adkins Rebuttal Decl. at 14). And although SB1 does not explicitly refer to any requirement to “wean off” or “titrate down” in the lead up to March 31, 2024, the record reflects that the natural consequence of the continuing care exception is that physicians will be winding down care for patients beginning on July 1, 2023. And, of course, this was to be expected given that the exception explicitly forbids changes in treatment that would further combat gender dysphoria. Plaintiffs have therefore demonstrated that they likely would suffer actual and imminent harm beginning on July 1, 2023.
Defendants further contend that Vanderbilt University Medical Center (“VUMC“) has announced that it will not provide care under the continuing care exception and will not resume any care, even if an injunction is granted, given a fear of civil liability under the private-cause-of-action provision (codified at
Dr. Pinson‘s declaration clearly indicates two related things. First, contrary to Defendants’ argument that VUMC will not continue treatment following an injunction, Pinson plainly states that VUMC would continue treatment if there is a deferral or delay in the enforcement of SB1. A preliminary injunction would serve both to defer and to delay enforcement of SB1. Second, Pinson‘s declaration plainly states that VUMC will continue care as long as the provisions of SB1 prohibiting hormone therapies are enjoined. Contrary to Defendants’ position, Pinson does not indicate that VUMC will abstain from providing care, due to fear of civil liability, even if a preliminary injunction has been entered and is in effect. A preliminary injunction therefore will (preliminarily) address Plaintiffs’ harms because Plaintiffs will then be able to resume care at VUMC. For this reason, and those stated above, the Court finds that Plaintiffs have met the irreparable harm requirement.61
4. BALANCE OF EQUITIES & PUBLIC INTEREST
“The third and fourth [requirements] of the preliminary injunction analysis—harm to others and the public interest—merge when the Government is the opposing party.”62 Does #1-9 v. Lee, 574 F. Supp. 3d 558, 563 (M.D. Tenn. 2021). On the one hand, the Court recognizes that a state suffers harm when a statute that was passed using democratic processes is enjoined. See Doe #11 v. Lee, 609 F. Supp. 3d 578, 617 (M.D. Tenn. 2022). This principle, however, plainly does not extend to statutes that are substantially likely to be unconstitutional. As the Sixth Circuit has explained, “no 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 v. Guzman, 999 F.3d 353, 360 (6th Cir. 2021). Given that the Court here has found it substantially likely that SB1 is unconstitutional, the Court is satisfied that the merged-third-and-fourth requirements for a preliminary injunction have been met.
5. SCOPE OF THE REMEDY
Having determined that all requirements for a preliminary injunction are met, the Court must determine the scope of the injunction warranted. As discussed at the outset of the opinion, any injunction will not affect the private right of action under SB1 or SB1‘s ban on surgeries.
“A preliminary injunction must be no more burdensome than necessary to provide a plaintiff complete relief, and a district court abuses its discretion in ordering an overly broad injunction.” Sony/ATV Publishing, LLC v. Marcos, 651 Fed. App‘x 482, 487 (6th Cir. 2016). Even considering this demanding standing, the Court agrees that a state-wide injunction of SB1 is necessary to redress Plaintiffs’ injuries. As Plaintiffs point out, it is far-fetched that healthcare providers in Tennessee would continue care specifically for Minor Plaintiffs when they cannot do so for any other individual to whom SB1 applies. (Doc. No. 146 at 18). Indeed, it seems highly unlikely that VUMC for example would continue treating Minor Plaintiffs in particular for gender dysphoria, while keeping the rest of the practice shuttered as to any other minors seeking treatment for gender dysphoria.
Moreover, Plaintiffs have met their burden of demonstrating that SB1 is most likely unconstitutional on its face—indeed, the Court has not had to defer to the individual facts of Plaintiffs in drawing its conclusions that SB1 likely fails intermediate scrutiny—and a state-wide injunction is typically an appropriate remedy in such circumstances. See, e.g., Eknes-Tucker, 603 F. Supp. 3d at 1151 (granting state-wide preliminary injunction of Alabama‘s ban on gender-affirming care for minors due to the substantial likelihood that it is unconstitutional); Brandt by and through Brandt, 47 F.4th at 672 (finding that district court did not abuse discretion in granting state-wide injunction of Arkansas’ ban on gender-affirming care for minors based on its conclusion that it likely failed intermediate scrutiny); Hecox v. Little, 479 F. Supp. 3d 930 at 988-989 (D. Idaho 2020) (granting state-wide injunction of Idaho law excluding transgender women from participating in women‘s sports teams because the law was likely unconstitutional); K.C., 2023 WL 4054086, at *14 (granting state-wide injunction based on finding that Indiana law banning procedures for gender transitioning were likely unconstitutional); Friends of George‘s, Inc. v. Tenn., No. 2-23-cv-02176, 2023 WL 2755238 (W.D. Tenn. Mar. 31, 2023) (granting state-wide temporary restraining order of enforcement of Tennessee law that likely violated the First Amendment).
Defendants argue that Plaintiffs have not met the standard for showing that SB1 is unconstitutional on its face. (Doc. No. 112 at 29). As Defendants point out, in United States v. Salerno, 481 U.S. 739 (1987), the Court explained that a plaintiff has made a successful facial challenge when the plaintiff has established that “no set of circumstances exists under which” the law would be valid. Id. at 746. Seemingly contrary to this guidance, however, the Supreme Court has also instructed that “[i]n determining whether a law is facially invalid, [a court] must be careful not to go beyond the statute‘s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’ case.” See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008). Yet, this is exactly what Defendants ask the Court to do here. Defendants provide hypotheticals in which they believe SB1 could be constitutionally applied. Though the Court concedes that the standard from Salerno would invite such an argument, more recent precedent clearly counsels against considering these hypotheticals. More importantly, the Supreme Court has explained in its jurisprudence since Salerno, that “[t]he proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant. . ..” See City of Los Angeles, Calif v. Patel, 576 U.S. 409, 418 (2015). Defendants’ examples raise the issue of hypothetical individuals to whom SB1 would be inapplicable because these individuals could not access the procedures banned under SB1 for reasons entirely separate from the restrictions imposed by the law. SB1 would therefore have no application to these individuals. Given that the Supreme Court has stated that a court should not consider hypotheticals in its application of Salerno and that the proper focus for a facial challenge is the group of individuals affected by the given law, the Court does not agree with Defendants that their hypotheticals demonstrate that SB1 is constitutional in some circumstances.
Despite the Court‘s rejection of Defendants’ hypotheticals as irrelevant, it is still incumbent on Plaintiffs to show why they have succeeded under Salerno‘s standard. In other words, Defendants do not bear the burden under Salerno. But the Court finds that Plaintiffs have carried that burden here. The Court has concluded that SB1 is most likely unconstitutional. In arriving at this conclusion, the Court relied on the words of the law itself and did not have to turn to the individual circumstances of Plaintiffs. The Court has therefore found that SB1 is unconstitutional on its face, which necessarily means that it is unconstitutional in all of its applications.
The Court‘s finding is supported by the discussion provided by the Tenth Circuit in Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012). In Doe, the Tenth Circuit found that Salerno does not provide an additional test for determining whether a statute is unconstitutional on its face. Id. at 1127. Instead, “where a statute fails the relevant constitutional test [], it can no longer be constitutionally applied to anyone—and thus there is no set of circumstances in which the statute would be valid. The relevant constitutional test, however, remains the proper inquiry.” See id. Although the Sixth Circuit has not yet endorsed this approach to Salerno, the Court finds that it is the only logical application of the “no set of circumstances” standard when a court has found that a law fails the relevant constitutional test without reliance on the circumstances of individual plaintiffs. As noted, here, the Court has found that SB1 on its face likely fails intermediate scrutiny, meaning that the Court relied on the text of SB1 to arrive at its conclusion rather than relying on the facts pertaining to Plaintiffs. It necessarily follows that SB1 is likely unconstitutional in all of its applications.
Defendants’ reliance on Salerno, and in particular its “no set of circumstances” language, is understandable. After all, Defendants are invoking the actual words used by the Supreme Court. But Defendants’ argument regarding Salerno raises the question of whether the “no set of circumstances” language of Salerno has been rendered a dead-letter by more recent Supreme Court jurisprudence. The Supreme Court itself has criticized the case and has offered a significantly more lenient test for facial challenges. See U.S. v. Stevens, 559 U.S. 460, 473 (2010) (explaining that a plaintiff can succeed on a facial challenge where he demonstrates that the statute lacks any “plainly legitimate
6. SECURITY
Plaintiffs request that the Court waive any bond requirement in this case on the grounds that Defendants are unlikely to sustain any costs or damages as a result of the preliminary injunction. (Doc. No. 21). Defendants do not appear to oppose this request, which in the Court‘s experience is routinely made and granted when a state statute is preliminarily enjoined. The Court therefore finds that a security bond under
CONCLUSION
The Court realizes that today‘s decision will likely stoke the already controversial fire regarding the rights of transgender individuals in American society on the one hand, and the countervailing power of states to control certain activities within their borders and to use that power to protect minors.
The Court, however, does not stand alone in its decision. As repeatedly emphasized above, several federal courts across the country have been confronted with laws that mirror SB1 in material respects. To the Court‘s knowledge, every court to consider preliminarily enjoining a ban on gender-affirming care for minors has found that such a ban is likely unconstitutional. And at least one federal court has found such a ban to be unconstitutional at final judgment. Though the Court would not hesitate to be an outlier if it found such an outcome to be required, the Court finds it noteworthy that its resolution of the present Motion brings it into the ranks of courts that have (unanimously) come to the same conclusion when considering very similar laws.
The Court also acknowledges that it must tread carefully when enjoining from enforcement a law that was enacted through a democratic process. The Court does not take providing such relief lightly. The legislative process, however, is not without constraints. If Tennessee wishes to regulate access to certain medical procedures, it must do so in a manner that does not infringe on the rights conferred by the United States Constitution, which is of course supreme to all other laws of the land. With regard to SB1, Tennessee has likely failed to do just this.
Even though the Court‘s findings are preliminary, the Court is aware that many will be disappointed by the ruling on Plaintiffs’ Motion, and still, many others will be pleased. It borders on the obvious, however, to say that Defendants retain the right to seek to change the Court‘s mind about the constitutionality of SB1 and to receive a final judgment that is favorable to them. The Court‘s job is to evaluate the parties’ arguments and evidence in light of precedent, relevant case law, and the then-existing record and make a proper determination
In light of the Court‘s findings provided herein, the Motion at Doc. No. 21 will be granted in part and denied in part. A corresponding order will be entered separately.
Eli Richardson
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE
Notes
Defendants’ argument, however, would require the Court to make a logical leap. Although the Supreme Court to date has recognized quasi-suspect classes (and classifications) only where the distinguishing trait can be ascertained at birth (assuming that it in fact can be ascertained at birth), it does not necessarily follow that a group with a distinguishing trait that cannot be ascertained at the moment of birth cannot be either a quasi-suspect class or subject to a quasi-suspect classification. The four prongs used by the Supreme Court to identify suspect classes that warrant heightened scrutiny say nothing about whether the distinguishing characteristics of a class can be ascertained by a third party at the moment of birth. The Court therefore declines to defer to what is most likely dicta in Ondo in lieu of binding Supreme Court precedent. In short, until the Sixth Circuit or the Supreme Court rules on whether transgender individuals constitute a quasi-suspect class, the four prongs set forth by the Supreme Court govern the analysis.
As an aside, the undersigned queries whether the Sixth Circuit‘s reasoning in Ondo rests on solid grounds. For example, presumably the Sixth Circuit was not implying that being homosexual is something like a choice that is made later in life rather than a characteristic that a person is born with. Instead, it seems that what the Sixth Circuit in Ondo meant was that for a class to be quasi-suspect class, the trait associated with that class must be ascertainable based on criteria that are immediately observable at the time of birth. So sex would fit neatly into that category because most of the time, a person‘s sex (if designated by external genitalia as it is in Tennessee) is immediately ascertainable at birth regardless of whether that person is yet aware of their sex. But the undersigned is not persuaded that the same can be said for illegitimacy, which is the second quasi-suspect class identified by the Supreme Court. Indeed, there is nothing regarding a baby‘s physical appearance that indicates (i.e., makes it ascertainable) that it was conceived or born out of wedlock. Presumably, a third party could ascertain this only from the say-so of the mother or father or perhaps to on-point state records to which the third party has access. Therefore, the undersigned is skeptical of Ondo‘s identification of the common thread among the two classes that the Supreme Court has determined to be suspect classes.
The Court notes additionally that here it is making the reasonable assumption that when the challenge is to a state law, the focus should be on the group‘s political power specifically within the state at issue.
A finding that SB1 makes a directly sex-based classification is appropriate because as demonstrated in Section (2)(B)(ii)(a), the Court could draw its conclusion that SB1 makes a sex-based classification without ever using the word “transgender.” Indeed, one would not even have to know what “transgender” means to be able to determine that SB1 contains a sex-based classification. For example,
A finding that SB1 makes an indirectly sex-based classification is slightly different. Rather than relying primarily on the text of SB1, this finding hinges on the definition of the term “transgender“: incongruence between a person‘s sex at birth and the person‘s gender identity. To determine whether to find that SB1 indirectly makes a sex-based classification, the Court first must determine whether SB1 in fact imposes disparate treatment on the basis of transgender status, and, if so, then determine whether disparate treatment on the basis of transgender status necessarily entails disparate treatment on the basis of
Without attempting or purporting to give a general primer on originalism, the Court further notes that original public meaning originalism, though likely the most prominent form of originalism as of late, is not the only type of originalism that exists. There are multiple forms of originalism, and more forms are conceived of and discussed by scholars over time. A See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1296 (2019) (listing the four primary types of originalism as 1) “public meaning,” 2) “intentionalism,” 3) “original methods,” and 4) “original law.“); Lorianne Updike Toler et. al., Pre-“Originalism,” 36 Harv. J.L. & Pub. Pol‘y 277, 290 (2013) (“Originalism has evolved, much like the Reformation, in a near-linear ideological succession until, in recent years, it has spawned a myriad of ideological streams. These camps include Intentionalism, first Framers’ Intentionalism and then Ratifiers’ Intentionalism, and Original Public Meaning--whose variants include Semantic Originalism, Original Expected Application Originalism, and Original Methods Originalism.“). Although (as just discussed) original public meaning originalism finds some value—albeit in limited circumstances—in post-ratification practices, not all originalists place such emphasis on laws passed (or informal practices that were common) close in time to the enactment of certain provisions of the Constitution.
For some schools of originalist thought, reliance on post-Fourteenth Amendment ratification practices is inappropriate. One early school of originalism, for example, posits that “the meaning of the
With regard to SB1, the Court finds it prudent to assess whether the state has demonstrated an important interest in banning certain medical procedures. The Court also discusses whether the state has justified differential treatment under the Equal Protection Clause.