On June 18, the US Supreme Court ruled that the Sixth Circuit Court of Appeals had correctly reversed preliminary injunctions that had been issued by district judges in Kentucky and Tennessee blocking the enforcement of state laws banning gender-affirming care for transgender minors in those states.
The only question presented to the Supreme Court by the petitioner in that case, then-Solicitor General Elizabeth Prelogar, was whether the district court judge in Tennessee, Eli J. Richardson (a Trump appointee), had appropriately found that the plaintiffs in that case were likely to prevail on their claim that the laws violated the equal protection rights of the transgender plaintiffs under the 14th Amendment. Judge Richardson issued a preliminary injunction against the Tennessee law, blocking it from being enforced while the case was litigated to a conclusion on the merits. The solicitor general intervened in the case as a co-plaintiff on behalf of the Biden Administration. Tennessee appealed to the Sixth Circuit, which reversed, in an opinion by Chief Judge Jeffrey Sutton (an appointee of President George W. Bush).
Solicitor General Prelogar’s Petition to the Supreme Court did not raise the question of whether the law violated the due process rights of the transgender plaintiffs’ parents, who were also plaintiffs in the case, or the right of a doctor to refer patients out-of-state to get the treatment, which was also prohibited by the Tennessee law.
The Supreme Court also received petitions from the plaintiffs in both cases asking for review of all the issues decided by the Sixth Circuit, but the Supreme Court said nothing about those petitions when it granted the solicitor general’s petition.
The Supreme Court ruled on the equal protection question presented by the Solicitor General Prelogar, finding that the Sixth Circuit had correctly ruled that the Tennessee law did not discriminate on the basis of sex or gender identity, but rather on the basis of age and purpose of medical treatment. The law did not outlaw all gender-affirming care, only such care for minors who sought it for gender transition, while allowing the same treatment (puberty blocking or cross-sex hormones) for other conditions and, at the same time, allowing gender-affirming care for adults. Since the Supreme Court does not consider age or purpose of treatment to be “suspect classifications,” only a rational basis was needed to sustain the law. The court said that the state was likely to succeed in showing that it was rational to deny to minors a treatment that was allowed for adults, and to prohibit the procedures for minors based on the state’s perception that the risks of such treatments outweighed any benefits.
The decision was not made based on a complete trial record from which the district court judge could weigh the contested evidence from both sides and come to a well-informed decision, but rather was based on a preliminary injunction ruling in which plaintiffs sought to delay application of the law until the district court could rule on the merits after a trial. The test for a preliminary injunction is whether the trial court is persuaded that plaintiffs are likely to succeed, not whether the court believes they will definitely do so.
In the Tennessee trial court, Judge Richardson was not just addressing the likelihood of success on the equal protection claim. He also thought the parents were likely to prevail on their due process claim and the doctor was likely to prevail on her free speech claim as well. Those issues were not addressed by the Supreme Court because they were not raised by the petition that the court had granted.
The plaintiffs sought to appeal as well, but the Supreme Court did not rule on their petitions until after announcing its decision in Skrmetti. A few days later, the court announced that it was denying their petitions for review, in both the Tennessee case and the Kentucky case in which the trial judge also issued a preliminary injunction which was reversed by the Sixth Circuit in the same proceeding. Subsequently, the plaintiffs in those cases decided to give up: In both cases, plaintiffs agreed to have the trial courts dismiss the cases, even though the only ruling by the Sixth Circuit and the Supreme Court, technically, was to deny the preliminary injunction.
In both of those cases, the Sixth Circuit had reversed the preliminary injunction, but that was not a ruling on the merits either by the Sixth Circuit or, ultimately, by the Supreme Court, but rather a ruling on the propriety of the preliminary injunction. The plaintiffs could have tried to litigate in the district courts to a judgment on the merits, but for whatever reason of strategy or loss of heart, decided not to do so.
These developments left many unanswered questions, not least how the Supreme Court might deal with the due process and free speech arguments. The Sixth Circuit had rejected them, and cases were pending in other circuits calling for them to be addressed. Substantive due process arguments are currently viewed with disfavor by a majority of the Supreme Court justices, however, and these arguments did not fare well in August before two federal appeals courts.
On Aug. 6, the US Court of Appeals for the 10th Circuit ruled on an Oklahoma case in which plaintiffs appealed the denial of a preliminary injunction by US District Judge John F. Heil, III (a Trump appointee). Judge Heil had concluded in November, 2023 that plaintiffs were not likely to prevail on any of their constitutional challenges to the Oklahoma ban. In light of the Skrmetti ruling, the 10th Circuit panel agreed with Judge Heil on the equal protection issue and went on to answer questions the Supreme Court had not answered.
Writing for the 10th Circuit panel in Poe v. Drummond, Circuit Judge Joel Carson (a Trump appointee), channeled Chief Justice Roberts’ opinion in Skrmetti and specifically rejected the argument that the legislative history of the Oklahoma law clearly showed an intent to discriminate against transgender youth. “Contemporary statements from a few legislators do not persuade us of discriminatory intent,” wrote Carson. And he insisted that “if the law truly sought to discriminate against transgender persons, the prohibition would not distinguish based on age. Instead, the purpose becomes clear: children’s welfare. These novel treatments only recently became available to children, so understandably, ‘limited data’ exist on ‘the long-term physical, psychological, and neurodevelopmental outcomes in youth.’”
As had the Supreme Court, the 10th Circuit panel asserted that “opposition to gender transition procedures for minors cannot be considered an irrational surrogate to target transgender persons because it cannot be denied that there are common and respectable reasons for opposing it.”
As to the parents’ due process claims, the court pointed to a history of state regulation of medical practice, observing that there were many cases where states prohibited the performance of procedures that legislatures found to be harmful or ineffective. Although courts have spoken in the past about the liberty interests of parents in raising and providing for their children, there was plenty of precedent this court could cite for the government having “authority to limit the patient’s choice of medication, whether the patients is an adult or a child.”
Perhaps more devastating was an en banc (full bench) ruling by the US Court of Appeals for the Eighth Circuit on Aug. 12, reversing a decision after a full trial by US District Judge James M. Moody, Jr. (an Obama appointee), who had issued a permanent injunction against the Arkansas ban on gender-affirming care for minors.
Judge Moody first granted the plaintiffs’ motion for a preliminary injunction in 2021, which was affirmed by an Eighth Circuit three-judge panel in 2022. Arkansas sought en banc reconsideration, but its motion did not win a majority vote from the full 11-member circuit court. That left the preliminary injunction in effect while the case was litigated to a final decision on the merits before Judge Moody, which he issued on June 20, 2023. He found that the plaintiffs had prevailed on their equal protection and due process claims. Of course, the state appealed, and the case ended up before the full 11-member bench, which voted 9-2 to reverse Judge Moody’s decision.
The opinion for the Eighth Circuit by Circuit Judge Duane Benton (a George W. Bush appointee) was similar to the 10th Circuit opinion in the Oklahoma case, rejecting an argument by the plaintiffs that the ban failed the rational basis test.
Two members of the court, Circuit Judges Jane Kelly (an Obama appointee) and James Loken (a George W. Bush appointee), agreed that the court was bound by Skrmetti to apply the rational basis test, but differed from the majority about whether the law survived that test, quoting from Judge Moody’s findings. “The district court found that the treatments Act 626 prohibits are the only ‘evidence-based treatments’ available ‘to alleviate gender dysphoria,’” wrote Judge Kelly. Quoting from the trial court decision, “Decades of clinical experience in Arkansas, and numerous longitudinal and cross-sectional studies, led to the undisputed finding that adolescents with gender dysphoria experience significant and long-term positive benefits to their health and well-being from gender-affirming medical care,” she wrote, quoting Judge Moody’s conclusions.
Addressing the main argument by Arkansas, the dissenters asserted that Judge Moody did not find there to be “unique risks of gender-affirming medical care that warrant taking this medical decision out of the hands of adolescent patients, their parents, and their doctors.” They quoted from detailed findings by Judge Moody countering the various risk arguments generally put forth by legislators to justify the bans.
“The district court did not engage in rational basis analysis,” wrote Judge Kelly, “but as I read its findings, Act 626 plausibly fails even this deferential test. The undisputed factual findings in this case show that Act 626 categorically removes the only treatment available for adolescents suffering from a recognized, serious health condition” and that requiring minors who have been receiving gender-affirming care to “detransition” imposes severe risks of adverse consequences. “The record suggests that the state’s purported justifications for the act make no sense in light of how the state treats other groups similarly situated in relevant respects,” she concluded.
Thus, while agreeing with the majority that the equal protection and due process claims should be evaluated under the rational basis test, the dissenters found that this was the unusual situation where legislators had failed to act rationally in light of the extensive trial record about the benefits and risks of the prohibited treatments for severe gender dysphoria.
But nine members of the court disagreed with them. And it is worth noting that the Eighth Circuit is among the most conservative of federal appeals courts. Ten out of 11 judges on the court were appointed by Republican presidents, with Judge Kelly being the only exception. These decisions rejecting constitutional attacks on the bans seem to foreclose the likelihood that similar lawsuits will succeed elsewhere, which means that the question whether to allow or forbid gender-affirming care for minors will henceforth be decided by the states.
