Like roughly 20 other states in the nation, Tennessee’s legislature recently passed a law prohibiting state healthcare providers from performing “gender-affirming” surgeries and administering hormones or puberty blockers to anyone under the age of 18. But, like many of those other states, Tennessee was preliminary enjoined from enforcing its law by a district court that found it likely violated the Constitution.
A few days later, however, the Sixth Circuit U.S. Court of Appeals struck down the lower court’s injunction, allowing the Volunteer State to continue to enforce its gender “medicine” ban for minors. In its opinion, the court made it clear that the house of gender is built on sinking sand. To the relief of gender ideology critics and sound thinking people everywhere, the court made the case that the sprint to transition minors across America has to stop.
The opinion came in response to a suit from three minors that identify as transgender, their parents, and a doctor who claimed that the Tennessee law was unconstitutional. Judge Eli Richardson of the Middle District of Tennessee had initially blocked most portions of the law on June 28, finding that it interfered with the parents’ Due Process right to “direct the medical care of their children,” and violated Equal Protection because the law discriminated “based on sex.” The Sixth Circuit not only disagreed, but it outright rebuked the district court judge for abusing his judicial discretion in doing so.
In its opinion, written by Chief Judge Jeffrey Sutton and joined by Judge Amul Thapar, the appellate court held that the state had a legitimate interest in protecting children from life-altering surgeries and hormone therapies. Indeed, Tennessee had rightly and rationally taken the side of caution before permitting the irreversible medical treatments of its children and satisfied the appropriate standard of judicial review — “rational basis”— for constitutional claims of this kind. What’s more, the Supreme Court in Dobbs v. Jackson only a year ago reiterated that state efforts to regulate health and welfare are entitled to a “strong presumption of validity,” and Sutton reminded the district court of just that.
He also argued that the plaintiffs were ultimately unlikely to prevail in their suit. While affirming that there is a fundamental right to parent one’s own children as plaintiffs claimed, Sutton noted the Supreme Court has never recognized that right to extend to experimental medical treatments. Because state governments have an abiding interest in protecting their children, the states have broad power, even to “limit parental freedom.”
Moreover, Sutton pointed out that while the plaintiffs sought to expand the law on parental rights in unprecedented ways — a fine enough approach on its own — that effort was especially unsuited to the gender medicine debate. Alternate perspectives, dissenting voices, and democratic debate must be considered, especially when multiple states across the country have already engaged on the highly contentious issue.
Sutton likewise observed that there wasn’t even consensus in the medical and regulatory authorities about using hormone therapy to treat gender dysphoria. While the nation has choked down Big Left’s Pravda on “life-saving” care for minors, true consensus, Sutton argued, would mean that the FDA would have approved the use of cross-sex hormones and puberty blockers for that purpose by now.
Of course, it has not.
Sutton also cited the Supreme Court’s weeks-old opinion in United States v. Hansen, noting that the lower court judge had not only departed from precedent, but he had even questioned whether the relevant precedent applied at all. On this point, even dissenting Judge Helene White agreed, writing that the lower court “abused its discretion.”
Finally, Judge Sutton hearkened to comprehensive reviews in Sweden, the United Kingdom, Finland, and Norway, where experts have concluded that “gender affirming” medical treatments should not be offered to minors outside of research settings. In America’s national gender craze, however, it’s clear activists have seized the medical establishment. The judicial establishment — in the trial courts, at least — seems not to be too far behind.
But just because the voices pushing gender theory are louder than those who aren’t is not a reason to expand long standing constitutional law precepts and lead vulnerable children directly into harm’s way. Thank God the Sixth Circuit recognized that.
Perhaps the next federal appeals court to consider a state law regulating medicine and gender dysphoric minors (likely the 11th Circuit) will do the same.
Sarah Parshall Perry is a senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
The views expressed in this piece are those of the author and do not necessarily represent those of The Daily Wire.