Split appeals court says Tennessee's trans care ban can go into effect during appeal

"We may be wrong," Judge Jeffrey Sutton wrote for himself and Judge Amul Thapar. They are the only judges to rule that bans on gender-affirming care for minors are likely constitutional.

In the middle of the night Saturday, a 2-1 split panel of the U.S. Court of Appeals for the Sixth Circuit issued a ruling that allows Tennessee to enforce S.B. 1, the state’s ban on gender-affirming medical care for minors, while the state’s appeal to the Sixth Circuit is pending.

The two judges in the majority, Chief Judge Jeffrey Sutton and Judge Amul Thapar, are the only two judges in the country to rule that such bans — passed in several states with Republican legislatures — are likely constitutional.

“We may be wrong,” Sutton wrote for the majority, after citing the unbroken string of rulings to the contrary. “We appreciate their perspectives, and they give us pause. But they do not eliminate our doubts about the ultimate strength of the challengers’ claims ….”

Both Sutton and Thapar were appointed by Republican presidents — George W. Bush and Donald Trump, respectively. It should be noted, however, that the preliminary injunction in the case — which the Sixth Circuit stayed with its ruling — was issued by another Trump appointee, Judge Eli Richardson.

In addition to Richardson, judges in five other states — Alabama, Arkansas, Florida, Indiana, and Kentucky — have also found that such bans are unconstitutional or likely unconstitutional, depending on the procedural posture of the case. One appeals court — the U.S. Court of Appeals for the Eighth Circuit — has already upheld a lower court’s preliminary injunction against Arkansas’s law.

In his 17-page ruling, however, Sutton first rejected the district court’s statewide injunction, ruling that the district court’s 69-page injunction opinion does not justify its conclusion that the challengers showed they will likely succeed in bringing a facial challenge to the law. Then, on the merits of the challengers’ arguments, Sutton held that the plaintiffs “are unlikely to prevail on their due process and equal protection claims” of parental rights and sex-based and transgender status-based discrimination.

Judge Helene White, the third judge on the Sixth Circuit’s panel, dissented on the key issue of the likely constitutionality of the ban. White was nominated to the Sixth Circuit initially by Bill Clinton, although ultimately confirmed as a George W. Bush appointee under a deal with Michigan’s two Democratic senators at the time.

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What did the court decide?

In his ruling, Sutton pieced together a decision that tilted the scales from the outset. First, rather than finding that the challengers were applying existing protections to these laws, Sutton held that the challengers’ claims are “seek[ing] to extend [existing] constitutional guarantees to new territory.” Second, Sutton cited the wave of anti-transgender legislation, not for evidence of animus or political powerlessness or any other such thing, but instead as evidence that “the States are indeed engaged on these issues.”

On the constitutional claims themselves, Sutton dismissed all three as unlikely to succeed — with legal text that veers between incredibly sloppy and outcome-determinative.

On the due process claim that the Tennessee ban violates parents’ rights to “direct the medical care of their children,” Sutton focused almost exclusively on an unsourced and false claim that “new medical treatments” are at issue here. Sutton referred to the puberty blockers and hormone treatments at issue in the ban as a “new drug treatment” or “new medical treatment” and in the context of “new drugs” no fewer than 10 times in the discussion of this claim. This is false, as every other judge to consider these issues has concluded as a matter of fact — including judges to have conducted lengthy trials with expert witnesses and judges appointed by presidents of both parties.

On the equal protection claims, Sutton held that the claim that the ban discriminates on the basis of sex will likely fail in a single paragraph that managed to ignore both the common-sense rulings from other judges across the country (including Richardson) and any elementary understanding of sex-discrimination law. “The Act bans gender-affirming care for minors of both sexes,” Sutton troublingly begins, going downhill from there. Turning anti-discrimination law on its head, Sutton actually writes that banning “cross-sex hormones” to “help a minor transition from one gender to another” but not “naturally occurring hormones” somehow supports the likely constitutionality of the law.

Moreover, even if that faulty logic worked to reject a sex-based discrimination claim, one would think it would prove a transgender-status discrimination claim. Not so with Sutton. Here, Sutton dodged, holding that “neither the Supreme Court nor this court has recognized transgender status as a quasi-suspect class.” Since the courts — including Sutton’s own court — haven’t explicitly done so, Sutton ruled that, for Richardson’s purposes in granting the preliminary injunction here, only the lowest level of scrutiny, rational basis, should have been applied to the law. Here then, Sutton wrote, “that should be nearly dispositive.”

With that — and with some veering around various opinions, both from the Supreme Court and the Sixth Circuit, recognizing that elements of heightened scrutiny apply to discrimination claims brought by transgender people — Sutton held that Tennessee is allowed to enforce its ban.

After being the sole court to take this step, Sutton still attempted to claim the mantle of judicial modesty, stating that these are just “initial views,” and adding, “We may be wrong. It may be that the one week we have had to resolve this motion does not suffice to see our own mistakes.”

Nonetheless, Sutton was OK with his court being the sole one in the nation to allow such restrictions to be enforced.

Sutton has done similarly before. He also authored the only appeals court opinion in the country to uphold state bans on same-sex couples’ marriages in the aftermath of the Supreme Court’s 2013 decision in U.S. v. Windsor striking down part of the Defense of Marriage Act. He was then reversed by the Supreme Court in 2015.

The judge joining Sutton’s opinion, Thapar, was the first Trump nominee to a federal appeals court. A favorite of Republican Sen. Mitch McConnell of Kentucky, Thapar was considered for Supreme Court vacancies during the Trump administration and would be a frontrunner for a nomination should Trump or another Republican win the White House in 2024 and a vacancy occur.

For her part, White sided with the rest of the judges in the country in holding that “the law discriminates based on sex” and agreeing with those courts that the ban is likely unconstitutional.

Under the heightened scrutiny that laws that discriminate based on sex face, White wrote, “I fail to see how the state can justify denying access to hormone therapies for treatment of minor Plaintiffs’ gender dysphoria while permitting access to others, especially in light of the district court’s robust factual findings on the benefits of these treatments for transgender youth.”

Because she believed the law is likely unconstitutional on that basis, White did not address the transgender discrimination or parental rights claims in her opinion. White did agree that the statewide injunction went too far, writing that should would have narrowed it to cover the plaintiffs and Vanderbilt University Medical Center.

She was, though, the dissenting judge on the Sixth Circuit panel hearing Tennessee’s stay request.

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What now?

The Saturday ruling itself alters the legal landscape for these bans, at least temporarily.

First, and most immediately, Tennessee is free to enforce its ban, pending any further court orders.

While calling the ruling “wrong on the facts and on the law,” Chase Strangio, who is one of the key ACLU lawyers on this and several other challenges to anti-transgender laws, added, “We also know that things are moving quickly and for many families, waiting for legal relief is not an option. The untenable position that adolescents, their caregivers and their doctors have been put in is not only illegal, but also deeply unethical and dangerous.”

One of the most prominent trans legal advocates in the country over recent years, Strangio added a personal note to those affected by Sutton’s ruling, telling Law Dork: “From the bottom of my heart, I am sorry. I know it feels bleak now and I am also confident that in time, working together, we will prevail.”

Strangio, the deputy director for transgender justice within the ACLU’s LGBTQ & HIV Project, added that the ACLU “will continue to aggressively litigate these cases in Tennessee and across the country.”

It was not immediately clear, however, whether the challengers would seek to get the stay lifted, either by the full Sixth Circuit or the U.S. Supreme Court. “We are still evaluating all our options with our primary concern of course being how can we help ensure that people in Tennessee are not cut off from the care they need,” Strangio stated.

Second, the Sixth Circuit set a very quick schedule for the merits appeal of the preliminary injunction — with the “goal” of reaching a resolution by Sept. 30.

Third, Kentucky is within the Sixth Circuit and Kentucky Attorney General Daniel Cameron has already cited the Sixth Circuit’s ruling in a filing at the district court in the case challenging Kentucky’s ban as a reason why the court should “immediately” issue a stay of its June 28 ruling granting a preliminary injunction.

Fourth, the Sixth Circuit also consolidated Cameron’s appeal of the Kentucky injunction in a separate order Saturday, which not only brings that case on the same schedule as the Tennessee appeal but also essentially confirms that Sixth Circuit would almost certainly issue a stay of the Kentucky injunction if the district court does not do so.

Finally, the new, if tentative, lack of unanimity itself matters for two reasons — one rhetorical and one practical. Obviously, having unanimity is its own argument against the constitutionality of these bans. Additionally, although only at the stay request posture, the ruling increases the likelihood that a “circuit split” on these bans will develop — a factor that greatly increases the chances of the U.S. Supreme Court taking up one of these cases.

Few people know that better than Sutton.

It was, after all, Sutton’s 2014 decision in the marriage cases out of Kentucky, Michigan, Ohio, and Tennessee that prompted the U.S. Supreme Court to take up the issue of same-sex couples’ constitutional right to marriage equality. Less than two months before Sutton’s decision in those cases, the Supreme Court denied other states’ requests to hear similar appeals when the federal appeals courts were in unanimity on the issue. After Sutton’s decision created a circuit split, however, the Supreme Court took up the issue.

This is a developing story. Please check back at Law Dork for the latest.