A federal appeals commission said on Saturday that a Tennessee law that would ban hormone therapy and puberty blockers for transgender youths could go into effect, marking the first time a federal court has allowed a law that bans assisted transition to fully take hold in the United States.
THE dominant, issued by a divided three-judge panel of the United States Court of Appeals for the Sixth Circuit in Cincinnati, comes less than two weeks after a district court judge temporarily blocked a ban on hormone therapy and puberty blockers. The judges, who will now consider a broader appeal over the temporary suspension of the law, said the final decision would come before Sept. 30.
The decision comes as a major blow to transgender youth, their families and their allies, who have relied on the national judiciary as a last resort to block a series of sweeping laws targeting transition assistance, legislation they say would detrimental to the health of young people.
Up until Saturday’s ruling, judges had been compelled by arguments that the laws discriminate against transgender people and violated the Constitution, deciding to temporarily or permanently block their application.
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 enacted a series of laws designed to curb LGBTQ rights and access to health care. Twenty states have passed bans or restrictions on transition-related health care, leaving many families and health care providers to consider relocating their homes and practices to access such care.
In Tennessee, the Republican majority in the legislature rallied around such a law, naming it SB 1 as a sign of its importance to lawmakers’ agendas. Once enacted, 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 went into effect on July 1, Tennessee Central District Judge Eli J. Richardson had decided to temporarily preserve access to hormone therapy and puberty blockers, although he allowed the implementation of the prohibition of the law of transition interventions for minors.
But the appeals commission, led by Chief Justice Jeffrey S. Sutton, found that Judge Richardson had overstepped the line by issuing a statewide ruling and wondered whether the challengers would prevail with their argument that the law violated constitutional rights.
« For life federal judges should be careful to remove a vexing new topic of medical debate from the ebbs and flows of democracy by constructing a largely unchangeable federal constitution to occupy the field, » wrote Justice Sutton, who was called to court by former President George W. Bush and became Chief Justice in 2021. He also argued that the state legislature had legitimacy to regulate such treatment.
However, he did offer a warning, especially as several other judges have decided to rule against similar bans in other states. He wrote that “these initial opinions, we must acknowledge, are just that: initial. We could be wrong.
His decision was joined by Judge Amul Thapar, who was called in his place by former President Donald J. Trump.
Senior Judge Helene N. White, who was also confirmed in place in court during the presidency of George W. Bush, he said he would narrow the scope of the injunction by temporarily blocking the law from going into effect, rather than overturning it altogether. But unlike the other judges on the grand panel, he said he thinks the law is likely unconstitutional, discriminating on the basis of sex.
In his opinion, where he shared and disagreed with the majority, he also underlined that the decision was only preliminary.
But Republicans, who framed the law as a necessary mechanism to protect children from risky medical treatment, celebrated the commission’s decision on Saturday.
« The case is far from over, but this is a major victory, » Tennessee attorney general Jonathan Skrmetti said in a statement, predicting the state will likely win its broader defense of the law.
In a joint statement, legal groups challenging the ban on behalf of Tennessean transgender youth, their parents and a doctor called the ruling « beyond a disappointing and 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 finally defeated and Tennessee is made a safest place for every family to raise,” said the coalition, which includes the American Civil Liberties Union and the American Civil Liberties Union of Tennessee.
The appeals committee will now consider a more permanent decision on the interim ruling, while the district court hears arguments about the constitutionality of the underlying law.
