Tennessee ban on transgender procedures for minors can be enforced: appeals court

Tennessee’s ban on transgender procedures for minors — including puberty blockers and surgery — can be enforced, an appeals court ruled Saturday, overturning a lower court’s ruling. 

The decision from the Sixth U.S. Circuit Court of Appeals in Cincinnati came following an emergency appeal from the state of Tennessee, and after a district court judge ruled late last month that it was unconstitutional because it discriminated on the basis of sex. 

In a split decision, the panel of judges voted 2-1 to temporarily allow the ban to go into effect, saying the issue is better left to the legislature than the judiciary. 

‘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,’ wrote Chief Judge Jeffrey Sutton, a former President George W. Bush appointee.

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He added that ‘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 federal constitution to occupy the field.’

The panel added that the LGBTQ advocate groups that had challenged the law hadn’t shown they would be able to prove the law was unconstitutional. 

Tennessee Attorney General Jonathan Skrmetti called the ruling a ‘big win.’

‘The case is far from over,’ Skrmetti said in a statement, ‘but this is a big win. The court of appeals lifted the injunction, meaning the law can be fully enforced, and recognized that Tennessee is likely to win the constitutional argument and the case.’

Dissenting Judge Helene White, another Bush appointee, said the law is ‘likely unconstitutional’ as sex discrimination.

‘I fail to see how the state can justify denying access to hormone therapies for treatment of minor Plaintiffs’ gender dysphoria while permitting access to others, especially in light of the district court’s robust factual findings on the benefits of these treatments for transgender youth,’ White wrote.

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Judge Amul Thapar, a former President Trump appointee, joined Sutton is the majority ruling. 

The panel will now conduct a full review of the law, which they said they hope to complete by Sept. 30. 

‘These initial views, we must acknowledge, are just that: initial,’ Sutton wrote. ‘We may be wrong.’

The ACLU, its Tennessee chapter and two law firms called Saturday’s ruling ‘beyond disappointing and a heartbreaking development.’

‘As we and our clients consider our next steps, we want all the transgender youth of Tennessee to know this fight is far from over and we will continue to challenge this law until it is permanently defeated,’ the joint statement said.

Tennessee’s law, which is also being challenged by the federal government, prohibits gender-affirming care ‘inconsistent with the immutable characteristics of the reproductive system that define the minor as male or female.’

Other Republican states like Arkansas and Florida have also enacted similar laws banning transgender care for minors and have faced similar legal challenges.  

The Associated Press and Reuters contributed to this report. 

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