A federal appeals panel said Saturday that a Tennessee law that would ban hormone therapy and puberty blockers for transgender youth could go into effect, marking the first time a federal court has allowed a law banning transition care to take full effect USA.
That warrant, issued by a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, comes less than two weeks after a district judge temporarily blocked the ban on hormone replacement therapy and puberty blockers. The judges, who will now consider a wider appeal on the temporary stay on the law, said a final decision would come by September 30.
The decision is a notable blow to transgender youth, their families and their allies, who have leaned on the nation’s judiciary as a last resort to block a series of sweeping laws targeting transition care, legislation they say would harm young people’s health.
Until the decision Saturday, the justices were swayed by the argument that the laws discriminated against transgender people and violated the constitution, and decided to either temporarily or permanently block their enforcement.
The decision also underscores how tenuous and uncertain the medical and political landscape is for transgender youth and their families, as conservative-led states have passed a series of laws designed to limit LGBTQ rights and access to health care. Twenty states have approved bans or restrictions on transition-related medical care, leaving many families and doctors to consider moving their homes and practices to access that care.
In Tennessee, the legislature’s Republican supermajority rallied around such a bill, calling it SB 1 as a sign of its importance to lawmakers’ agenda. Once in effect, the law prevents doctors from starting transitional care for new patients and ends existing care for current patients by March 2024.
But just days before the law was to take effect on July 1, Judge Eli J. Richardson of the Middle District of Tennessee had decided to temporarily preserve access to hormone therapy and puberty blockers, although he allowed the implementation of the law’s ban on transition surgeries for minors.
But the appeals panel, led by Chief Justice Jeffrey S. Sutton, found that Judge Richardson had overreached in issuing a statewide ruling and questioned whether the challengers would prevail with their argument that the law violated constitutional rights.
“Lifetime federal judges should be careful to remove a vexed and novel topic of medical debate from the ebb and flow of democracy by constructing a largely unchanging federal constitution to occupy the field,” wrote Judge Sutton, who was named to the court of former President George W. Bush and became chief justice in 2021. He also argued that the state legislature had the power to regulate such processing.
However, he offered a caveat, especially since several other judges decided to rule against similar bans in other states. He wrote that “these preliminary views, we must acknowledge, are just that: preliminary. We may be wrong.”
His decision was joined by Justice Amul Thapar, who was named to his seat by former President Donald J. Trump.
Chief Justice Helene N. White, who was also confirmed in its place on the court during George W. Bush’s presidency, said she would have narrowed the scope of the injunction temporarily blocking the law from taking effect, rather than overturning it entirely. But unlike the other judges on the panel, she said she believed the law was likely unconstitutional by discriminating on the basis of sex.
In her statement, in which she both joined and distanced herself from the majority, she also emphasized that the decision was only provisional.
But Republicans, who have framed the law as a necessary mechanism to protect children from risky medical treatment, celebrated the panel’s decision on Saturday.
“The case is far from over, but this is a big victory,” Jonathan Skrmetti, the Tennessee attorney general, said in a statement, predicting that the state is likely to win its broader defense of the law.
In a joint statement, legal groups challenging the ban on behalf of transgender Tennessean youth, their parents and a doctor called the ruling “beyond disappointing and a heartbreaking development.”
“As we and our clients consider our next steps, we want all transgender youth in Tennessee to know that 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 for every family to travel,” said the coalition, which includes the American Civil Liberties Union and the American Civil Liberties Union of Tennessee.
The appeals panel will now consider a more permanent ruling on the temporary order while the district court hears arguments over the constitutionality of the underlying law.