Kentucky and Tennessee bans on trans care for minors are likely unconstitutional, blocked

"[E]very court to consider preliminarily enjoining a ban on gender-affirming care for minors has found that such a ban is likely unconstitutional," a Trump appointee noted in the Tennessee case.

The unbroken record of federal judges finding that anti-transgender bans on gender-affirming medical care for minors violate, or likely violate, the U.S. Constitution continued Wednesday in a pair of rulings against the laws in Kentucky and Tennessee.

First, U.S. District Judge David Hale in Kentucky issued a preliminary injunction against enforcement of S.B. 150, that state’s recently passed ban.

The order from Hale, an Obama appointee, bars the state from “enforcing, threatening to enforce, or otherwise requiring compliance” with provisions of the new law that were to ban health care providers from prescribing or administering puberty blockers or testosterone to assist with the provision of gender-affirming care. The law goes into effect on June 29.

In Hale’s order, he also made clear that the scope of the ruling does not just apply to the plaintiffs, calling it a “facial injunction” that bars the state from enforcing the provisions of the new law against anyone.

Hours later, U.S. District Judge Eli Richardson, a Trump appointee took similar action against S.B. 1, Tennessee’s ban, ruling that Tennessee’s ban on gender-affirming medical care for minors is likely unconstitutional and issuing a statewide injunction against its enforcement.

Richardson found that plaintiffs lacked standing to challenge the law’s ban on gender-affirming medical surgery, so those provisions of the new Tennessee law are not blocked from going into effect July 1.

The pair of rulings followed similar rulings this month out of Indiana and Florida, as well as rulings that reached similar conclusions after trial in Arkansas and Florida (specifically addressing Medicaid-related restrictions). A prior order in Alabama has similarly halted enforcement of that state’s ban. Additionally, Oklahoma’s attorney general has agreed not to enforce his state’s ban while preliminary injunction litigation is ongoing.

Richardson discussed the other cases — and their unanimity — throughout his extensive, 69-page decision, including in a notable section of his conclusion:

[S]everal federal courts across the country have been confronted with laws that mirror SB1 in material respects. To the Court’s knowledge, every court to consider preliminarily enjoining a ban on gender-affirming care for minors has found that such a ban is likely unconstitutional. And at least one federal court has found such a ban to be unconstitutional at final judgment. Though the Court would not hesitate to be an outlier if it found such an outcome to be required, the Court finds it noteworthy that its resolution of the present Motion brings it into the ranks of courts that have (unanimously) come to the same conclusion when considering very similar laws.

With that, federal courts in six states have held that these bans on puberty blockers and hormones as part of gender-affirming medical care violate, or likely violate, the U.S. Constitution, as yet other states are continuing to pass such bans.

What happened in Kentucky?

The court in the Kentucky case considered both equal protection and due process claims raised against S.B. 150.

As to equal protection, Hale wrote first of the claim raised by the challengers that the new law discriminates on the basis of sex and should, therefore, receive additional scrutiny from the court: “[T]he Court concludes—as has every other federal court to consider this question—that heightened scrutiny applies to Plaintiffs’ equal-protection claim.” He went on to rule that Kentucky Republican Attorney General Daniel Cameron — who intervened to defend the law after medical officials and a member of Democratic Gov. Andy Beshear’s cabinet responsible for heath and family services said that they did not oppose the injunction — had not shown that the law was sufficient to succeed under heightened scrutiny.

“The ban therefore fails heightened scrutiny … and Plaintiffs thus have a strong likelihood of success on the merits of their equal-protection claim,” Hale concluded.

As to due process, Hale similarly ruled that the plaintiffs are likely to succeed in their claim that the new law violates parents’ “fundamental right under the Due Process Clause” — generally regarding the raising of their children and, specifically here, “to choose [puberty blocker and/or hormone] treatments for their children.”

Finally, addressing the potential harm involved in allowing the new law to go into effect or granting the injunction, Hale wrote:

If allowed to take effect, SB 150 would eliminate treatments that have already significantly benefited six of the seven minor plaintiffs and prevent other transgender children from accessing these beneficial treatments in the future. It should go without saying that enjoining enforcement of SB 150 will not result in any child being forced to take puberty-blockers or hormones; rather, the treatments will continue to be limited to those patients whose parents and healthcare providers decide, in accordance with the applicable standard of care, that such treatment is appropriate.

For those reasons, Hale granted the injunction, which, in key part, orders the following:

Cameron made clear in a statement that he will continue fighting to defend the law.

What happened in Tennessee?

In the Tennessee case, Richardson trod a similar path, for the most part. In some ways, however, the Trump appointee produced an even more aggressively pro-trans decision than Hale’s brief ruling did.

“SB1 in effect bans minors from receiving all treatment for gender dysphoria,” Richardson wrote in the opening “Facts” section of his ruling.

In the “Discussion” section, Richardson details the basic contours of the plaintiffs’ request succinctly:

Initially, Richardson noted that there are two parts of the law that he is not enjoining. First, the plaintiffs themselves stated in their reply brief that their preliminary injunction request was not seeking to include a provision allowing for private lawsuits. Second, Richardson found that the plaintiffs lacked standing to challenge the surgery-related ban language, so he did not include that in the discussion — or enjoin it.

With that out of the way, however, matters shifted. In Richardson’s consideration of the heart of plaintiffs’ request — their likelihood of success on the merits — he reviewed everything in great detail over 48 pages, ultimately siding with the plaintiffs on every point.

As to equal protection, the plaintiffs argued that S.B. 1 “treats transgender minors differently from non-transgender minors” and, as such, violates the Equal Protection Clause by discriminating on the basis of transgender status and on the basis of sex.

Richardson, ultimately, agreed, concluding one section by stating, “The Court is satisfied that current precedent supports the finding that transgender individuals constitute a quasi-suspect class under the Equal Protection Clause.”

In the sex discrimination section, Richardson found that “SB1 contains a sex-based classification on its face, and therefore intermediate scrutiny is warranted” and that “the Court also agrees with Plaintiffs that SB1 subjects individuals to disparate treatment on the basis of sex because it imposes disparate treatment based on transgender status,” echoing the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County.

On the parents’ due process rights, Richardson found that the parents “demonstrated a substantial likelihood of success on the merits of their due process claim.” Noting that, “under binding Sixth Circuit precedent, parents have a fundamental right to direct the medical care of their children, which naturally includes the right of parents to request certain medical treatments on behalf of their children,” Richardson highlighted, “The Court is not alone in finding the existence of such a right, as three other district courts to assess laws almost identical to SB1 have done likewise.”

Having found for the plaintiffs on all of those claims, Richardson turned to the question of whether the state could show, under intermediate scrutiny, that “the law is substantially related to an important state interest.”

And in a preface to his conclusions, Richardson sent quite a message:

[U]nlike individuals that may base their conclusions about the effects of the procedures banned under SB1 on mere assumptions, the Court fortunately has a voluminous (albeit still preliminary) evidentiary record on which to base its current conclusions. Thus, the Court can, must, and does base its current conclusions on the record to date, without resort to any unsupported, bare medical assumptions.

After reviewing the evidence regarding the various medical experts from both sides, Richardson made two conclusions: First that “there is at best conflicting evidence as to whether the relevant procedures increase a person’s likelihood of experiencing certain illnesses, and that even if there is an increased risk, that it can be mitigated,” and then that “the benefits of the medical procedures banned by SB1 are well-established by the existing record.”

This led Richardson to a blunt conclusion:

The Court acknowledges that the state feels strongly that the medical procedures banned by SB1 are harmful to minors. The medical evidence on the record, however, indicates otherwise.

Going further than several other courts that have ultimately sided with the plaintiffs, Richardson found that, “at this juncture, SB1 is not supported by an important state interest.”

Richardson also found, as other judges have, that the ban isn’t “substantially related” to the state’s purported interest because “the medical procedures banned by SB1 because they are purportedly unsafe to treat gender dysphoria in minors (which, as discussed above, necessarily means treatment for transgender minors) are not banned when provided to treat other conditions.”

Finding that the plaintiffs met the other preliminary injunction requirements, Richardson turned to the scope of the remedy, finding that a statewide injunction is appropriate, in part, because:

Plaintiffs have met their burden of demonstrating that SB1 is most likely unconstitutional on its face—indeed, the Court has not had to defer to the individual facts of Plaintiffs in drawing its conclusions that SB1 likely fails intermediate scrutiny—and a state-wide injunction is typically an appropriate remedy in such circumstances.

With that conclusion, the second of two bans on gender-affirming medical care for minors was halted on Tuesday from going into effect.

Already Wednesday night, Tennessee asked the judge to stay his ruling — put it on hold — pending the state’s planned appeal to the U.S. Court of Appeals for the Sixth Circuit.

This report was updated and expanded after initial publication to include information in the opening section about the Tennessee ruling, with the final update at 11:59 p.m.