A federal appeals court in Tennessee has upheld a law banning gender-affirming care for trans youth, the first such federal court ruling to side with the wave of newly enacted state laws prohibiting affirming healthcare.
Last month, a federal judge granted a preliminary injunction that blocked Tennessee’s law after a legal challenge from a group of trans children and their families.
On 8 July, two Republican-appointed judges on a three-judge appeals court panel allowed the state to enforce the law, marking the first time that a challenged law against gender-affirming care has taken effect while a series of legal challenges against similar bans play out across the country.
Federal judges in five other states – Alabama, Arkansas, Indiana, Florida and Kentucky – have ruled that such bans are likely unconstitutional. A decision in the Arkansas case permanently struck down that state’s law, the first ban on affirming healthcare for trans youth in the US, marking the first such ruling in the country after a weeks-long federal trial.
Chase Strangio, deputy director for transgender justice with the ACLU’s LGBT & HIV Project, condemned the latest Tennessee ruling as “divorced from precedent, from the lower court opinion and from reality.”
“It is a scary moment for trans people and our health care as the reality of these circuit courts is upon us,” he added. “But we will absolutely keep fighting and figure something out.”
Judges reject ‘every’ other court and ‘robust’ medical facts
Tennessee’s ban immediately took effect with the appeals court order on 8 July.
The law prohibits doctors from providing affirming healthcare to trans youth and forces trans youth to end their current care within nine months.
A legal challenge from a group of trans youth and their families argued that the law amounts to unconstitutional discrimination in violation of the 14th Amendment, a similar argument in other lawsuits targeting state bans on affirming care. Most of the treatments that make up a medical transition are regularly prescribed to non-trans people, including hormone replacement therapy and puberty blockers.
In her dissenting opinion, Judge Helene White said that Tennessee law likely does discriminate based on sex because it allows such care for any other child unless they are transgender, noting that “until today, every federal court addressing similar laws reached the same conclusion.”
“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,” she wrote.
A statement from the ACLU of Tennessee, Lambda Legal and other civil rights groups and attorneys that joined the lawsuit said that the ruling is “beyond disappointing and a heartbreaking development for thousands of transgender youth, their doctors, and their families.”
“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,” they added.
One of the plaintiffs, a 15-year-old girl identified as LW, will no longer be able to access care in her home state, and must end her treatment by March of next year.
“I feel hurt. I feel like they … don’t see me as human,” she told WPLN. “Without gender-affirming care, I wasn’t really able to be myself because I physically wasn’t myself. And it’s very scary going through that.”
Her family and other families with trans kids are considering whether to seek care outside of Tennessee, complicated by a wave of other similar measures playing out in other states.
“The two states where we were looking to go for care if the injunction wasn’t granted, now have bills of their own, which means we have to go even further,” LW’s mother Samantha Williams told WPLN.
Tennessee Governor Bill Lee— (AP)
Guidelines from major medical organizations including the American Academy of Pediatrics, the American Medical Association, American Academy of Child and Adolescent Psychiatry and American Counseling Association, among others, agree that such care is clinically appropriate for trans youth experiencing gender dysphoria.
But Donald Trump-appointed Judge Amul Thapar and George W Bush-appointed Judge Jeffrey Sutton said they would not defer to mainstream medical authority “for the same reason we would not defer to a consensus among economists” about the constitutionality of labor laws.
The judges admitted, however, that the decision amounts to their “initial views” in a case that is expected to resolve in that court no later than 30 September.
“We may be wrong,” they wrote. “It may be that the one week we have had to resolve this motion does not suffice to see our own mistakes.”
How courts are using the Supreme Court ruling on abortion to target trans rights
The 2-1 ruling in the appeals court repeatedly invokes the US Supreme Court’s decision to strike down a constitutional right to abortion, underscoring the parallel legal battles for transgender rights and the right to abortion care.
The ruling mentions the Dobbs v Jackson Women’s Health Organization decision nine times to argue that Tennessee’s law against affirming healthcare for trans youth does not discriminate on the basis of sex because “the regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny.”
It also argues that gender-affirming care is not proven to be “deeply rooted in our history and traditions.”
Mary Ziegler, a leading historian and legal expert on abortion rights, said it is “fascinating to see the court treat Dobbs as a new paradigm for sex equality too – one that resurrects and supercharges” other Supreme Court rulings on reproductive health.
Days after the Dobbs decision in June of last year, officials in Alabama filed a challenge that relied on that decision to end gender-affirming care. More than a dozen states have advanced explicit protections for both abortion access and gender-affirming care, noting the partisan-driven campaigns targeting them both.
‘It’s hard to exist as a transgender person in Tennessee’
Hundreds of bills aimed at LGBT+ people, particularly young trans people, have been filed in nearly every state within the last several years. Within the first five months of 2023 alone, state lawmakers had introduced more than 500 bills impacting LGBT+ people, including 220 bills specifically restricting the rights of trans and nonbinary Americans, according to an analysis from the Human Rights Campaign.
The Republican-appointed judges in the Tennessee appeals court cited that wave of anti-trans legislation as evidence that “the states are indeed engaged on these issues.”
In Tennessee, lawmakers passed a raft of anti-trans legislation signed into law by Republican Governor Bill Lee. Federal courts have struck down state law banning public drag performance and a measure that directs how trans people should use bathrooms.
Another recent court ruling upheld a state law prohibiting trans people from correcting their gender marker on their birth certificates, making Tennessee one of just three states with such a policy.
“It’s hard to exist as a transgender person in Tennessee at this moment,” plaintiff Jaime Combs said in a statement following that ruling.
“To have the court join state officials to willfully not see us for who we are adds to that burden. All my life I’ve been carrying an inaccurate birth certificate, complicating my life and making me feel not seen by my government,” she said. “My heart is saddened as the court has refused to address the harms imposed by Tennessee’s policy, but I will continue to fight against the discrimination that continues to be perpetuated by the state of Tennessee.”
