Tennessee ban on gender-affirming care for minors to go into effect for now

A Tennessee ban on gender-affirming care for transgender youth can go into effect immediately, a U.S. appeals court ruled on Saturday, temporarily staying a lower court's ruling and marking the first federal court ruling of its kind.

The 6th Circuit ruling diverges from a recent pattern of federal courts permanently or temporarily blocking similar statewide bans on gender-affirming care for minors, including in Arkansas, Alabama, Florida, Indiana and Kentucky.

The court’s decision will now prevent doctors in Tennessee from providing gender-affirming care — including puberty blockers and gender-affirming surgery — to minors, reversing a lower court’s decision to suspend the ban while it was being challenged by families and advocacy groups.

The ruling remains preliminary, as the 6th Circuit court plans to issue a full ruling by Sept. 30 after hearing arguments for a full appeal of the ban. In a filing Saturday, the court indicated it would decide the pending Kentucky case alongside Tennessee’s and set an accelerated schedule for briefing on those cases. However the schedule runs into next month and the next regularly scheduled argument session for the 6th Circuit after those deadlines is not until October.

“The challengers do not argue that the original fixed meaning of either the due process or equal protection guarantee covers these claims,” Judge Jeffrey Sutton wrote in the court’s opinion. “That prompts the question whether the people of this country ever agreed to remove debates of this sort — about the use of new drug treatments on minors — from the conventional place for dealing with new norms, new drugs, and new technologies: the democratic process.”

“Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field,” Sutton added.

The panel of three judges voted 2-1 on the decision, ruling that advocacy groups’ efforts to challenge the law’s adherence to the 14th Amendment was unconstitutional. In his opinion, Sutton wrote that the federal district court that suspended the ban in June had erred by invalidating the law facially, instead of as it applied to the plaintiffs, and by assuming “authority to issue a state-wide injunction.”

The advocacy groups challenging the ban — which include the American Civil Liberties Union, the ACLU of Tennessee, Lambda Legal and Akin Gump Strauss Hauer & Feld LLP — celebrated when the lower court suspended the law last month, calling it a “critical victory” for transgender youth and their medical providers.

The lower court’s decision suspended the ban beyond its enactment date of July 1. With the 6th Circuit’s reversal of that decision, the bill, which Tennessee Gov. Bill Lee signed in March, will take immediate effect. Health care providers who provide gender-affirming hormones or surgery to anyone under 18 will face a $25,000 penalty and could be open to lawsuits.

“This ruling is beyond disappointing and a heartbreaking development for thousands of transgender youth, their doctors, and their families,” the advocacy groups that challenged the ban wrote in a joint statement on Saturday. “As we and our clients consider our next steps, we want all the transgender youth of Tennessee to know this fight is far from over and we will continue to challenge this law until it is permanently defeated and Tennessee is made a safer place to raise every family.”

Tennessee is one of at least 14 states where Republican lawmakers have sought to restrict or ban gender-affirming care for minors.