Two for one! On June 28, federal trial judges in both Kentucky and Tennessee issued preliminary injunctions that will prevent enforcement of recently-enacted bans on gender-affirming medical care for transgender youths. Enacted as part of the wave of “red state” anti-trans legislation over the past year by Republican-controlled legislatures, and sometimes enacted over vetoes by governors who characterize the measures as “legislative overreach,” these laws appear unconstitutional on their face even under the most lenient forms of judicial review.
In Kentucky, SB 150, enacted over Governor Andy Beshear’s veto, is a wide-ranging measure packed with provisions subjecting transgender minors to many sort of indignities, regulations, and deprivations. In addition to barring puberty blockers, cross-sex hormones and gender-affirming surgery for minors, the measure allows teachers to mis-gender their students and requires schools to give two-weeks’ advance notice to parents before providing any lessons on human sexuality, so parents can opt their children out, as it is common knowledge that keeping children in ignorance is a way to keep them “safe” — a little irony here, dear readers. Sexual orientation and gender identity are forbidden topics of discussion in the public schools, and any lessons about sexually transmitted diseases or human sexuality cannot be given without obtaining parental consent, then only in grades 6-12. Transgender students may not use restrooms consistent with their gender identity. However, the state will allow social transitioning to the extent of name changes and changes of sex designation on birth certificates. The law requires doctors who are administering puberty blockers or hormones to wean their patients off these medications.
In the lawsuit before US District Judge David J. Hale, an Obama appointee, the plaintiffs — seven transgender minors and their parents — sought a preliminary injunction against the ban on puberty blockers and cross-sex hormones. None of the other provisions are addressed by Judge Hale in his opinion ordering the injunction.
The judge found that the plaintiffs have a “strong likelihood of success” on the merits of their constitutional challenge, following the increasingly familiar road map set out by other federal district judges in their rulings against similar bans in Alabama, Arkansas, Indiana and Florida. It is now commonly accepted among federal district judges that these bans probably violate the equal protection rights of transgender youths as well as the due process parental rights of their parents. By now, federal district judges ruling on such claims have recent decisions from which to quote, including an opinion by the Eighth Circuit Court of Appeals, which upheld a preliminary injunction in the Arkansas case. There are also now several rulings striking down statutory or regulatory bans on Medicaid coverage for gender-affirming care, which provide additional authority for judges newly-confronting the issues on whether gender-affirming care can be necessary treatment for a significant medical issue.
On the equal protection claim, Judge Hale described some of the state’s arguments as “superficial,” and he noted the irrelevance of older cases the state cited in support of its claims. Since the law allows these treatments to be given to deal with other medical issues, the statute’s ban on their use to affirm a minor’s gender is clearly discriminatory based on the minor’s sex and gender identity, warranting heightened scrutiny by the court.
On parental due process rights, the judge observed, “The bulk of the Commonwealth’s argument is directed at a claim plaintiffs have not made, namely that parents have ‘a fundamental right to obtain whatever drugs they want for their children, without restriction.’” This is an absurd contention. The parents are not seeking medications that have not been cleared as safe by the Food and Drug Administration, and they are not seeking medications that are not approved in the standards of care for gender dysphoria, as published by professional medical associations and widely followed by practitioners in the field. These are, wrote Hale, “established medical treatments essential to the well-being of many transgender children: every major medical organization in the United States agrees that these treatments are safe, effective, and appropriate when used in accordance with clinical guidelines.” And that is all that the parents are asking for.
The judge rejected the state’s argument that any preliminary injunction should just apply to the plaintiffs. This is not an “as applied” case; the statute is attacked as unconstitutional on its face, so the injunction, which is aimed at the state’s enforcement officials, bars them from enforcing the ban on puberty blockers or cross-sex hormones against anyone.
In these particulars, Judge Hale’s decision falls into line with those previously rendered in other states. But the Tennessee case has a special twist that makes it more noteworthy, because US District Judge Eli Richardson, a Trump appointee, ruled just days earlier against a transgender plaintiff seeking to have the sex designation on their birth certificate changed, in a lengthy, discursive opinion that seemed willfully blind to the harms his decision could cause.
Richardson’s June 28 decision on the preliminary injunction against the gender-affirming care ban was also lengthy and somewhat discursive, but this time appeared to accept the evidence that had persuaded several other federal trial judges not only to award preliminary relief to the plaintiffs but also to extend the protection to all transgender minors in the state whose access to puberty blockers or cross-sex hormones is at stake.
Judge Richardson cites the earlier decisions and finds them to make up a persuasive body of authority, so he is not going out on a limb to reach the same conclusions that they do. Unlike Judge Hale, whose opinion is compact and direct, Judge Richardson dives into the “voluminous” evidentiary record, based at this point largely on affidavits offered in support and opposition to the preliminary injunction motion, and subjects the evidence to critical analysis. In the end he comes to same conclusions as his judicial colleagues: that the evidence supports plaintiffs’ claims about safe, widely-accepted treatments for gender dysphoria in minors, and the evidence generally doesn’t support the defendants’ claims that they are acting to protect minors from being subjected to dangerous, experimental treatments.
Unlike the plaintiffs in the Kentucky decision who were seeking relief only from the ban on puberty blockers and cross-sex hormones, the Tennessee plaintiffs were attacking the statute in full, including its ban on gender-affirming surgery. Judge Richardson concluded that since none of these minors were actually seeking surgery, they did not have standing to get a preliminary injunction pertaining to that. Otherwise, however, he concluded, as had Judge Hale, that relief should not be limited to the individual plaintiffs.
Because the judge found that “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 — a state-wide injunction is typically an appropriate remedy in such circumstances.” He cites in support the preliminary injunctions granted in Alabama, Arkansas and Indiana, as well as the statewide preliminary injunctions against an Idaho sports bill and a Tennessee drag show bill.
“The Court realizes that today’s decision will likely stoke the already controversial fire regarding the rights of transgender individuals in American society on the one hand, and the countervailing power of states to control certain activities within their borders and to use that power to protect minors,” wrote Judge Richardson. “The court, however, does not stand alone in its decision. As repeatedly emphasized above, several 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. Thought 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.”
Federal trial judges generally don’t like to be alone in ruling on controversial issues. The prior decisions give the judges some comfort against the expected critical fire they may draw from the right side of the aisle.
The Kentucky case is being litigated by the National Center for Lesbian Rights and the ACLU of Kentucky. Lambda Legal and the ACLU of Tennessee are on the case for the plaintiffs in that state. In both cases, there are several attorneys from private firms providing pro bono assistance, including local counsel who are members of the district court bar in both states.