Tennessee AG Celebrates First Federal Court Ruling Upholding Ban on Gender-Transition for Minors

Tennessee attorney general Jonathan Skrmetti hailed the Sixth Circuit’s decision to reinstate the state’s ban on gender-transition treatments for minors, explaining to National Review that Tennessee’s law was a proper exercise of the state’s police powers.

The Sixth Circuit was the first federal court to rule in favor of one of these bans and Skrmetti expects it will not be the last to reach this conclusion. According to the attorney general, the decision is “rooted in a careful examination of the historical foundations of the Fourteenth Amendment.” The plaintiffs in this case — three transgender minors, their parents, and a doctor — asserted both equal protection and due-process claims in their attempt to challenge the law.

Skrmetti explained that the stakes are high for both sides on this particular issue, with red states and blue states enacting laws to protect children based on their divergent understandings of what’s best for gender-dysphoric children. Chief Judge Jeffrey Sutton, also writing on behalf of Judge Amul Thapar, expressed his opposition to permitting only legislatures on one side of the debate to have their say on gender-transition treatments for minors.

To Skrmetti, courts ought to have a restrained approach when they deal with novel policy issues where there’s a great deal of debate. The attorney general explained it’s about who makes decisions in our constitutional system.

“We have a representative democracy where democratically-elected people acting through republican institutions make the laws using these long-established processes,” said Skrmetti. “On the other side you have courts saying there’s a medical consensus, so we are in a better position to say what the law should be than the popularly-elected representatives.”

“If the courts start broadly construing pieces of the Constitution to achieve policy ends that they like, we don’t live in a democracy anymore,” Skrmetti added.

The attorney general explained that while there is a medical consensus among all the major healthcare groups, there are doctors who disagree with this consensus and more importantly, there are countries in Europe that are urging caution and putting restrictions on these treatments.

“Kids are too young to consent to such momentous and life-altering decisions and if there’s not really good evidence for a significant medical benefit, it is unconscionable to subject kids to this,” said Skrmetti, adding that minors are pursuing these treatments in too rapid a fashion.

The opinion by Sutton mentions that several of the gender-transition medications are being used off label, and are not explicitly approved by the FDA for the purpose at hand. Asked if FDA action in favor of these treatments would make Tennessee’s case more difficult, Skrmetti responded that while he would have to look further at it, the long-established police powers of a state to regulate health care and protect minors likely tilts the balance in favor of upholding the ban.

The attorney general praised the distinction the majority drew between compelled medical treatment and affirmative requests for treatment, the latter of which gender-transition procedures and medications would fall into. Courts have been willing to recognize the right to refuse treatment, but have not treated affirmative requests in the same way.

“I think it’s entirely appropriate for the state to regulate, and I don’t think that there’s some magic-bullet libertarian constitutional provision that says that the states’s health-care regulations fail when they’re applied to kids whose parents want to have access to whatever treatment they want,” said Skrmetti.

Several of the Supreme Court’s recent cases may have bearing on litigation concerning gender-transition treatments for minors, including Bostock v. Clayton County and Dobbs, the case in which Roe was overruled. Agreeing with Sutton, Skrmetti explained that Bostock, which prohibits discrimination based on gender identity and sexual orientation, only applies to Title VII and does not affect Tennessee’s law.

In Dobbs, the high court recognized broad state power to regulate health care. It also said regulation of a medical procedure that only applies to one sex is not per se sex discrimination unless some animus can be shown.

According to Skrmetti, because there are parallel prohibitions here that apply to a minor of either sex transitioning, there’s no way to prove the requisite animus.

The attorney general also addressed some procedural points.

Tennessee built in continuing-care exceptions for minors already undergoing treatment with an understanding its law would be challenged. “That’s helping to create a situation where we can resolve the legal issues without the medical urgency that would otherwise attach,” said Skrmetti.

Skrmetti also approved of the majority’s comment that the district court had abused its discretion by blocking the law entirely and not just in relation to the particular plaintiffs.

“I think the courts of appeals have recognized this broad injunction issue and they’re starting to push back, but it’s taking a while to propagate through the system,” he said.

Finally, the Tennessee attorney general explained he thought the judges had exercised proper humility in saying the decisions of other judges to block such laws have given them pause and that they would move swiftly to mitigate harm in the event that they are wrong.

“That’s the appropriate humility to show given that they did have to decide very quickly and given that the stakes are very high. I don’t think anyone would like courts to lock in major constitutional doctrines after a hasty consideration,” the attorney general explained.