Arguments in Tenn., Ky. bans on minors' trans care hinge on key appeals court judge
The Sixth Circuit is expected to rule by the end of the month, and Chief Judge Jeff Sutton's vote is likely key. Also: Georgia's similar ban is back in effect for now.
As September gets underway, bans on hormone therapy for transgender minors remain enforceable in Tennessee and Kentucky, the result of a July order from the U.S. Court of Appeals for the Sixth Circuit — an order that Chief Judge Jeff Sutton acknowledged “may be wrong.”
On Sept. 1, heading into the holiday weekend, the same three-judge panel that issued that 2-1 split decision order in July held oral arguments over the constitutionality of the two states’ bans on gender-affirming medical care for minors. The puberty blocker and hormone ban provisions of both laws had been preliminarily enjoined in June by district court judges hearing independent cases challenging each ban. The Sept. 1 arguments were over those preliminary injunctions.
As with bans on same-sex couples’ marriage rights nearly a decade ago, the question at the Sixth Circuit, after a little more than an hour of arguments, appeared to come down to Sutton’s vote on the case. A George W. Bush appointee, Sutton has played a key role in several pivotal cases over his 20 years on the appellate bench.
Sutton was joined by Judges Helene White and Amul Thapar on the panel. Thapar was Trump’s first appeals court nominee back in 2017. White, meanwhile, was nominated to the Sixth Circuit initially by Bill Clinton but ultimately confirmed as a George W. Bush appointee in 2008 under a deal with Michigan’s two Democratic senators at the time.
The trio heard arguments from Tennessee and Kentucky’s lawyers, Clark Hildabrand and Matthew Kuhn, respectively, defending their bans, and from the ACLU’s Chase Strangio and Morgan Lewis’s Stephanie Schuster, representing the plaintiffs challenging the bans. An appellate lawyer from the U.S. Department of Justice, Barbara Schwabauer from the Civil Rights Division, also argued in support of the challengers in the Tennessee case.
Listen:
Tennessee case arguments (Clark Hildabrand, for Tennessee; Chase Strangio, for the plaintiffs; and Barbara Schwabauer, for the United States, arguing.)
Kentucky case arguments (Matthew Kuhn, for Kentucky, and Stephanie Schuster, for the plaintiffs, arguing)
The primary question before the court is the same as it has been throughout these challenges over the past two years: Do these bans violate the Fourteenth Amendment’s Equal Protection Clause, either by discriminating on the basis of sex or transgender status, or its Due Process Clause, by restricting parental rights?
Every federal district court judge to consider the question has held that the bans are unconstitutional or likely unconstitutional, depending on the procedural posture of the case, on at least one of those grounds. One federal appeals court — the U.S. Court of Appeals for the Eighth Circuit — has agreed, and another — the U.S. Court of Appeals for the Eleventh Circuit — ruled in late August against the challengers to Alabama’s ban.
Sutton earlier stated that Sixth Circuit panel would aim to resolve the cases by the end of September, so a decision should be coming by Sept. 30.
What happened at the Sixth Circuit?
Most of the focus of the arguments at the Sixth Circuit on the afternoon of Sept. 1 was on the underlying medical standards for treatment of transgender minors and the equal protection challenges to the two states’ bans.
White, who had dissented to the earlier rulings in the cases, and Sutton both asked questions signifying an understanding that there is far greater medical agreement on the appropriate standards of care for minors diagnosed with gender dysphoria than state legislative sessions — and some reporting at a major newspaper — would suggest.
Early in the second argument, Sutton — who had asked tough questions to lawyers representing both sides in the Tennessee case — told Kentucky Solicitor General Matthew Kuhn quite bluntly, “I think the plaintiffs would argue that the only disagreement [about gender-affirming medical care for minors] is between doctors and non-doctors, that, if you’re focused on the medical profession [and] the relevant experts, there is not disagreement.”
Kuhn said that he “would dispute the factual premise of that,” noting, “We put into the record doctors who have taken a different view.”
Sutton shot back: “Are there medical organizations that have?”
Kuhn then acknowledged: “Medical organizations have not filed an amicus brief in that.”
To the extent medical organizations filed briefs in the case, they did so in a brief that sided with the challengers.
Of course, the arguments got much more complicated than that, particularly when it came to the ins and outs of the constitutional claims.
There was significant discussion about the implications two earlier cases would have for these cases. First, the 2020 Bostock v. Clayton County ruling from the U.S. Supreme Court that sexual orientation discrimination and gender identity discrimination are types of sex discrimination covered by Title VII of the Civil Rights Act of 1964 was front and center. The discussion there was about whether that ruling should apply to sex discrimination under the Equal Protection Clause.
Second, the judges and parties discussed Smith v. City of Salem, a Sixth Circuit decision from 2004 holding that a trans person could bring a “sex-stereotyping” Title VII claim against an employer based on anti-trans treatment in the workplace. When, in response to a question about Smith from Thapar, Kuhn argued that the case was distinguishable because Smith was about “how an adult dresses and behaves in the workplace,” Sutton spoke up:
I get all that, but then I say to myself, “Gender dysphoria does go to the same things. ‘What am I supposed to look like? How am I supposed to act? And I’m having a lack of alignment between what’s going on in my head and what my body’s saying.’” So, I hear what you’re saying. I get the difference between medicine and employment, but I also understand, at least, I think I understand plaintiffs’ point. Isn’t there still a fair amount of overlap?
Kuhn insisted that, within regulation of the practice of medicine, “We have broad power there.” He went on to cite the Roe-reversing Dobbs v. Jackson Women’s Health Organization decision and the Supreme Court’s treatment of medical regulation in that opinion. Specifically, Kuhn repeatedly referenced the once-mentioned-in-Dobbs Geduldig v. Aiello, a 1974 case in which the Supreme Court held that California’s decision to exclude pregnancy-related conditions from coverage under a temporary disability insurance program did not violate the Equal Protection Clause.1
Of an equal protection ruling, Sutton seemed to be particularly hung up on concerns about whether such a ruling for the challengers in these cases on questions about puberty blockers and hormones would then force the court into similar rulings on the surgery bans contained in these state laws. The answer to that is that, yes, it would force the court to apply the same standard — but, no, it would not require the same ruling.
In his rebuttal time, Kuhn closed by returning to his opening that this is a case about “Who decides?” — an angle that he knew would appeal to Sutton.
“More debate, rather than less debate, is preferred on this,” Kuhn argued, noting that “[t]he states are very much discussing this” issue. “We do not want a decision about a practically unamendable Constitution to stall this debate.”
This was the very argument that Sutton made nearly a decade ago in ruling against same-sex couples’ challenges to marriage bans in the very same states — down to the precise “Who decides?” framing of the case.
It was also, however, a ruling from Sutton that the U.S. Supreme Court — albeit a very different U.S. Supreme Court — reversed a little more than a half-year later, explaining that “laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.“
Now, nearly a decade later, Sutton is once again in the position of examining laws that “impose stigma and injury of the kind prohibited by our basic charter.” We should know within the month if he will reach a different decision this time.
Briefing resources
Party briefs:
United States (intervened in Tennessee case)
Non-party (amicus) briefs in support of the challengers:
GLBTQ Legal Advocates & Defenders, National Women’s Law Center, and 12 other organizations (by Jenner & Block)
American Academy of Pediatrics and additional national and state medical and mental health organizations (by Covington & Burling)
Elliot Page, Lilly Wachowski, and 55 others (by Transgender Legal Defense and Education Fund and Cleary Gottlieb)
Foreign nonprofit organizations (by Wilmer Hale)
Non-party (amicus) briefs in support of Tennessee and the Kentucky attorney general:
America First Legal (by America First Legal and Jonathan Mitchell)
11th Circuit fallout hits Georgia
On Monday, the federal district court judge who previously blocked enforcement of Georgia’s hormone therapy ban for trans minors allowed the law’s enforcement once again for now, citing the recent decision from the U.S. Court of Appeals for the Eleventh Circuit holding Alabama’s similar ban likely constitutional.
Georgia federal court appeals are heard in the Eleventh Circuit, so U.S. District Judge Sarah Geraghty held that she was obligated to follow the ruling on Alabama’s similar ban (Eknes-Tucker v. Governor of Alabama) in the Georgia challenge.
Geraghty did not, however, vacate her injunction as Georgia sought. Instead, Geraghty ruled that her injunction will be stayed — or put on hold (meaning, here, that the ban is back in effect) — until a decision from the Eleventh Circuit on whether the full appeals court will reconsider the Alabama case decision.
Once the Alabama question is resolved, then Geraghty will rule on Georgia’s motion to reconsider her injunction.
Law Dork previously reported that the plaintiffs in the Alabama case do plan to seek review from the full court — called en banc review — by the Sept. 11 deadline.
As such, Geraghty’s ruling is one that is bad for trans minors in Georgia now, given that it means the ban can be enforced yet again. The upside to her ruling, though, is that a stay is temporary: It allows her to put the injunction back in effect easily, by lifting that stay, if and when appropriate. That could be the case if, for example, the appeals court agrees to take the Alabama case en banc, a decision that generally vacates the panel decision.
I hope to return to this later in more depth if I get a moment, because it’s an argument we’ve seen in other post-Roe cases and I’m sure its going to continue.
CJ Sutton: "I think the plaintiffs would argue that the only disagreement [about gender-affirming medical care for minors] is between doctors and non-doctors, that, if you’re focused on the medical profession [and] the relevant experts, there is not disagreement.”
With respect, CJ Sutton, the "disagreement" is between doctors AND THEIR PATIENTS v non-doctors, i.e., clueless legislators...that's always been the issue, regardless how it's been couched in other (obfuscatory) terms.
Would finding these bans on treatment of minors are OK mean the state could go ahead in banning treatment of adults? Much as I'd love to read all the briefs I haven't time just now. Was there any emphasis from the states that these bans are only about minors?