In a 2-1 decision, the 6th U.S. Circuit Court of Appeals recently ruled on Tennessee 's new law banning puberty blockers and hormone therapy for minors. In his opinion on L.W. v Skrmetti , Chief Judge Jeffrey Sutton stayed a district court’s preliminary injunction against the ban, allowing the law to take effect.
The ruling upends the previous general consensus among federal courts that the Constitution somehow prohibits states from banning "gender-affirming care" such as cross-sex hormones, sex-change surgery, and puberty blockers. Some judges have previously relied on Bostock v. Clayton County to come to the conclusion that laws prohibiting "gender care" discriminate on the basis of sex and are therefore unconstitutional.
CONGRESS ESTABLISHED ELECTION DAY. COURTS NEED TO ENSURE IT DOESN'T BECOME ELECTION MONTHTenesesee’s law bans minors from receiving any kind of transitioning treatment. In this decision, Sutton argues that the ban is neutral on the issue of sex since both sexes are prohibited from gender-related treatments. Thus, Sutton determines Tennessee’s law should stand. Sutton’s ruling demonstrates such a unique, strong stance on the issue that Vox’s Ian Millhiser worried the ruling in this case “potentially sets up LGBTQ Americans for a historic loss in the Supreme Court.”
Sutton's opinion reads, in part:
“The Act bans gender-affirming care for minors of both sexes. The ban thus applies to all minors, regardless of their biological birth with male or female sex organs. That prohibition does not prefer one sex to the detriment of the other. The Act mentions the word “sex,” true. But how could it not? That is the point of the existing hormone treatments—to help a minor transition from one gender to another. That also explains why it bans procedures that administer cross-sex hormones but not those that administer naturally occurring hormones. A cisgender girl cannot transition through use of estrogen; only testosterone will do that. A cisgender boy cannot transition through use of testosterone; only estrogen will do that.”
In addition to Sutton’s take on sex-based discrimination when it comes to gender treatments, what he had to say about how the court should interact with parental rights on this tough topic and democracy is worth noting.
“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,” Sutton wrote.
He continued, “Parents, it is true, have a substantive due process right ‘to make decisions concerning the care, custody, and control of their children’ ... but the Supreme Court cases recognizing this right confine it to narrow fields, such as education ... and visitation rights. ... No Supreme Court case extends it to a general right to receive new medical or experimental drug treatments.”
So far, at least 19 states have bans on "gender-affirming care" for minors in some form or another, and many of those bans are being challenged. All but three bans were actually enacted this year.
According to a May Washington Post -KFF poll , the majority of the country, almost 70%, opposes puberty blockers for children up to age 14, and almost 60% oppose hormone treatment, such as cross-sex hormones, for children up to age 17.
No doubt Sutton’s opinion confirming Tennessee's law banning "gender-affirming care" for children should stay intact will reverberate through the legal community, and the case could reach the Supreme Court.
CLICK HERE TO READ MORE FROM RESTORING AMERICANicole Russell ( @russell_nm ) is a contributor to the Washington Examiner's Beltway Confidential blog. She is a mother of four and an opinion columnist for the Fort Worth Star-Telegram in Texas.