On Saturday, Chief Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit issued a preliminary injunction that allows Tennessee’s law to prohibit health care providers from performing or administering cross-sex procedures on minors to take place, a week after a federal judge blocked it.
“Because Tennessee is likely to succeed on its appeal of the preliminary injunction, we grant the stay,” Mr. Sutton wrote.
Tennessee was one of several states this year to pass legislation to shield minors from cross-sex surgery, procedures, and hormones, which fall under the umbrella of “gender-affirming care,” and many of these laws are now being contested in the courts.
Many states are now in opposition to the Biden administration’s position on such procedures. As with the Tennessee law, they argue that irreversible decisions with lifelong impact should not be made rashly by people under the age of 18, especially without parental oversight.
Following the January release of a National Institutes of Health (NIH)-funded study on the long-term effects of “gender-affirming care” that followed 315 youth aged 12 to 20 suffering from gender dysphoria and taking cross-sex hormones, several lawmakers nationwide demanded answers (pdf) as to what led to the suicide of two study participants. The study cited suicidal ideation as the most common adverse event.
Rep. Josh Brecheen’s (R-Okla.) office told The Epoch Times they had not received the requested answers from the NIH. The NIH did not respond to inquiries from The Epoch Times.
Tennessee Senate Bill 1 (SB 1) was introduced last November and signed into law by Gov. Bill Lee in March under threats of litigation.
The American Civil Liberties Union (ACLU) promised legal action in Tennessee, Alabama, and Arkansas. Courts have also blocked bans in Florida, Indiana, and Kentucky.
The law would have gone into effect July 1, requiring ongoing cross-sex procedures to end by March 31, 2024, and in April the ALCU, its Tennessee chapter, and legal representation for three families and a Memphis-based doctor filed a lawsuit.
Last week, a federal judge blocked (pdf) the Tennessee law with a preliminary injunction.
Mr. Sutton, who granted a stay of the injunction, wrote: “The court’s injunction prohibits Tennessee from enforcing the law against the nine challengers in this case and against the other seven million residents of the Volunteer State. But absent a properly certified class action, why would nine residents represent seven million?”
“Even if courts may in some instances wield such power, the district court likely abused its discretion by deploying it here.”
Mr. Sutton wrote that challengers were “unlikely to prevail on their due process and equal protection claims.”
The complaint asserted that the law violated the Equal Protection Clause because it “discriminates on the basis of sex and transgender status” because it only prohibited certain procedures for certain people.
Mr. Sutton reminded both parties that these issues, in realms of science and society, were far from settled.
“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,” Mr. Sutton wrote. “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.”
After the federal judge blocked the Tennessee law, Tennessee Attorney General Jonathan Skrmetti filed a motion for an emergency stay before July 1, which would allow the ban to go into effect while the lawsuit proceeded through the courts.
“Until the American medical establishment catches up with the rest of the world on this issue, we will continue to defend the General Assembly’s authority to protect children from these irreversible harms,” Mr. Skrmetti said in a statement.
The brief explains: “Tennessee should not have to wait while hundreds, if not thousands, of children are set upon the path to sterilization. Nor should it take months of briefing to see how wrong the district court’s decision is. Each day this injunction persists, Tennessee’s children, and thus Tennessee, will suffer irreparable harm. The Court should enter a stay.”
On Friday, Kentucky took similar action.
Kentucky’s Senate Bill 150 had passed overwhelmingly in the House 76–23, but was vetoed on Gov. Andy Beshear’s desk, only for the veto to be overturned 29–8 in the Senate. The law is meant to prohibit gender transition procedures for minors.
Activists took legal action, and a day before the law was set to go into effect U.S. District Judge David Hale blocked it, writing the law would “prevent other transgender children from accessing these beneficial treatments in the future,” and the injunction would not “result in any child being forced to take puberty blockers” (pdf).
Kentucky Attorney General Daniel Cameron appealed to the U.S. Court of Appeals for the Sixth Circuit on Friday so as to stop further use of these procedures for minors in the state.
“It’s indefensible that leftist activists are disguising sterilization and genital surgeries as pediatric care for vulnerable children,” Mr. Cameron wrote. “Child mutilation is illegal in our Commonwealth, and these reckless hormone interventions are based on an irrational ideology that ignores scientific evidence.”