Acting on an emergency motion filed by Tennessee, a Sixth Circuit panel on Saturday issued an excellent opinion (in L.W. v. Skrmeti) on a Tennessee law that prohibits healthcare providers from providing certain procedures as treatment for minors with gender dysphoria. The prohibited procedures include surgically removing or modifying tissues, cavities, or organs (e.g., chopping off breasts or genitals) and administering puberty blockers or cross-sex hormones.
A district court had imposed a preliminary injunction that blocked Tennessee from enforcing the law. The Sixth Circuit ruling blocks the preliminary injunction during the pendency of Tennessee’s appeal.
Chief judge Jeffrey Sutton, one of the most respected judges in the country, wrote the majority opinion, which another outstanding judge, Amul Thapar, joined. Judge Helene White dissented in large part.
Here’s a quick summary of Sutton’s ruling. (I quote extensively from the opinion, but have chosen not to clutter this summary with a slew of quotation marks.)
Tennessee is likely to succeed on its appeal of the preliminary injunction. The challengers are unlikely to prevail on their Due Process and Equal Protection claims. They do not argue that the original meaning of the Due Process and Equal Protection clauses cover their claims. While they invoke Supreme Court precedents, they seek to extend those precedents to new territory. States across the country are engaged on these issues, and courts should be wary of silencing one side of the debate.
That many members of the medical community support the plaintiffs is surely relevant. But it is not dispositive for the same reason we would not defer to a consensus among economists about the proper incentives for interpreting the impairment-of-contracts or takings clauses of the U.S. Constitution. At all events, the medical and regulatory authorities are not of one mind about using hormone therapy to treat gender dysphoria. Else, the FDA would by now have approved the use of these drugs for these purposes.
On Due Process: Parents have a substantive due process right to make decisions concerning the care, custody, and control of their children. But the Supreme Court cases recognizing this right confine it to narrow fields, such as education and visitation rights. No Supreme Court case extends it to a general right to receive new medical or experimental drug treatments.
State legislatures play a critical role in regulating health and welfare, and their efforts are usually entitled to a strong presumption of validity. Judicial deference to state legislatures is especially appropriate where, as here, medical and scientific uncertainty exists.
On Equal Protection: The Tennessee law does not discriminate on the basis of sex. The Supreme Court has not recognized transgender status as a quasi-suspect class, and the bar for doing so is a high one. Gender identity and gender dysphoria pose vexing line-drawing dilemmas for legislatures. The federal Constitution does not offer a principled way to draw the lines. Rational-basis review applies, and the state law easily passes.
As Tennessee’s emergency motion points out, comprehensive reviews in Sweden, the United Kingdom, Finland, and Norway concluded that these treatments should not be offered to minors outside of research settings. But the American medical establishment lags and has been captured by activists.
Disclosure: Judge Sutton and I clerked together for Justice Scalia more than three decades ago and have remained friends since, and we co-edited The Essential Scalia.