GOP-imposed state bans on gender-affirming care and other laws targeting LGBTQ people have been getting knocked down in courts across the country. But a majority-Republican appeals panel over the weekend just upheld Tennessee’s ban — at least for now.
The state law was passed to stop health care providers from performing gender-affirming surgeries and giving hormones or puberty blockers to transgender minors. Notably, it was a Donald Trump-appointed trial judge, Eli Richardson, who blocked the part of the law pertaining to hormones and puberty blockers. Richardson found that it likely violated equal protection and due process guarantees because it discriminates based on sex and infringes parents’ right to direct their children’s medical care.
Tennessee officials appealed, seeking an emergency stay of Richardson’s preliminary injunction at the 6th U.S. Circuit Court of Appeals. On Saturday, a divided three-judge 6th Circuit panel granted that stay, with the two GOP-appointed judges in the majority saying Richardson had overstepped.
On due process, Chief Judge Jeffrey Sutton defined the issue in a way that helped him conclude Tennessee should win. Of parental rights, the George W. Bush appointee wrote: “No Supreme Court case extends it to a general right to receive new medical or experimental drug treatments.” He was joined by Amul Thapar, a Trump appointee. On equal protection, the majority reasoned the ban applies to minors of both sexes.
Yet, even Sutton acknowledged his ruling was an outlier.
“We recognize that other courts and judges have taken different approaches to these issues,” he wrote. “We recognize, too, that several district courts have addressed similar laws in other States and assessed those laws in much the same way as the district court did in this case,” he added, referring to Richardson’s injunction.
The majority also stressed the preliminary nature of the ruling while litigation continues.
“We may be wrong,” Sutton conceded. “It may be that the one week we have had to resolve this motion does not suffice to see our own mistakes.” The majority expedited the appeal with, Sutton wrote, “the goal of resolving it no later than September 30, 2023.”
In the meantime, Tennessee’s ban is in effect. The 6th Circuit also hears appeals from Kentucky, Michigan and Ohio. In the meantime, Tennessee’s ban is in effect. Dissenting, Judge Helene White challenged the majority’s notion that the ban applies equally to both sexes. She noted, for example, that a person “identified male at birth could receive testosterone therapy to conform to a male identity, but a person identified female at birth could not.” (Like Sutton, White was confirmed under Bush; however, she was initially nominated by Bill Clinton.) Underscoring the 6th Circuit majority’s now-outlier status, White wrote that “until today, every federal court addressing similar laws reached the same conclusion as Brandt.” That referred to Brandt v. Rutledge, an 8th U.S. Circuit Court of Appeals ruling that upheld an Arkansas injunction against a ban there. So even though this 6th Circuit ruling is preliminary and the issue is still being litigated in the circuit, there’s a clear split in thinking among the nation’s federal judges. That makes the subject even more likely to eventually head to the Supreme Court for resolution — whether in this case or another one — where the high court majority’s thinking may be more in line with Sutton and Thapar’s.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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