The national debate over gender ideology, and specifically medically transitioning children, has shown no signs of slowing down. But it seems the first round of the debate is over.
That round occurred in state legislatures, and states have staked out radically different approaches. On one side, some states are banning children from taking puberty blockers and cross-sex hormones, citing the need to protect children from largely untested and harmful medical drugs and the risk of long-term, irreversible consequences like sterility. On the other, states are declaring “gender-affirming care” to be a “legally protected health-care activity” and enshrining in law their states as a “refuge” for minors fleeing from other states seeking such treatment. The sides could not be more diametrically opposed. While some states might try to chart a middle ground, round one appears to be over. The battle lines are drawn, and the points of contention are clear.
Round two has started off with a bang — but it in a new forum, the judiciary. Thus far, the battle in the judiciary has been quite lopsided. Federal district court judges in Arkansas, Alabama, Florida, Kentucky, Indiana, and Tennessee have either blocked or struck down state laws that prohibit children from taking puberty blockers and cross-sex hormones. One federal judge even went so far as to declare in his opinion that “gender identity is real” and that “pushing individuals away from their transgender identity is not a legitimate state interest.” (READ MORE from S. Ernie Walton: No, Judge Hinkle, Gender Identity Is Not Real, Nor Legally Relevant)
But on July 8, the 6th Circuit struck back. In a 2–1 opinion written by Chief Judge Jeffrey Sutton, the circuit overturned the decision of the district court to block Tennessee’s law that “prohibits healthcare providers from performing gender-affirming surgeries and administering hormones or puberty blockers to transgender minors.” This means that while litigation continues, Tennessee’s law prohibiting minors from taking puberty blockers and cross sex-hormones will go into effect.
The Judiciary Is Not the Proper Forum for Every Political Issue
One of the amazing things about our Constitution is that it doesn’t settle every question. In fact, one of its greatest strengths is that it is quite short, simply establishing a federal government with limited powers and guaranteeing our most fundamental rights. Beyond that, the issues are left to the states and the people. This means that most issues in our constitutional republic are to be resolved not through the court system but through the political process. This way, the nation can resolve hotly contested issues differently across states and at different points in time.
The founders viewed the states as “laboratories of democracy” where ideas could be tested and refined and where states with different values could settle issues based on how their citizens determined best. But when judges usurp the authority of the people by constitutionalizing issues over which the Constitution is silent, debate ends, polarization occurs, and democracy starts to die.
This principle is particularly critical in the debate over medically transitioning minors, and Sutton’s opinion captures it perfectly:
That prompts the question whether the people of this country ever agreed to remove debates of this sort—about the use of new drug treatments on minors—from the conventional place for dealing with new norms, new drugs, and new technologies: the democratic process. Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field.
Elsewhere he writes:
Given the high stakes of these nascent policy deliberations—the long-term health of children facing gender dysphoria—sound government usually benefits from more rather than less debate, more rather than less input, more rather than less consideration of fair-minded policy approaches. To permit legislatures on one side of the debate to have their say while silencing legislatures on the other side of the debate under the U.S. Constitution does not further these goals.
And finally:
All that would happen is that we would remove these trying policy choices from fifty state legislatures to one Supreme Court. Instead of the vigorous, sometimes frustrating, “arena of public debate and legislative action” across the country and instead of other options provided by fifty governors and fifty state courts, we would look to one judiciary to sort it all out. That is not how a constitutional democracy is supposed to work—or at least works best—when confronting evolving social norms and innovative medical options.
Sutton perfectly captures the proper role of the judiciary in our constitutional republic. Where the Constitution speaks, judges must boldly act and uphold the limits placed on the federal and state and governments. But where the Constitution is silent, courts must leave the issue to the states and the people.
Judges and State Legislatures Don’t Have to Bow to the Medical Community
District court judges who have struck down state laws prohibiting the medical transition of minors have repeatedly made the point that the medical establishment overwhelmingly believes these drugs to be safe and that state legislatures and judges must defer to the medical community.
Sutton’s opinion dispels these arguments. First, as he notes, there is hardly medical consensus over the safety and wisdom of treating minors with gender dysphoria with these drugs. Second, and even more critical, state legislatures can still prohibit these drugs even if the medical community generally supports them. While what doctors and medical associations think about using puberty blockers and cross-sex hormones to treat children with gender dysphoria is “surely relevant,” “it is not dispositive for the same reason we would not defer to a consensus among economists about the proper incentives for interpreting the impairment-of-contracts or takings clauses of the U.S. Constitution.”
In other words, what the medical community believes about this issue does not trump the will of the people. The Constitution simply does not grant medical associations and doctors absolute authority over state legislatures. As Sutton correctly notes, “[T]he Constitution does not require [state legislatures] to view these treatments the same way as the majority of experts or to allow drugs for all uses simply because the FDA has approved them for some.”
The 6th Circuit’s opinion is well-reasoned and legally unassailable. It properly holds that states have the legal authority to prohibit minors from taking puberty blockers and cross-sex hormones to facilitate their medical transition. And it reminds federal judges and the American people of the proper forum for resolving this issue — the political process. May truth and justice prevail.
Ernie Walton is an assistant professor at Regent University School of Law in Virginia Beach, Virginia.