". . . and having done all . . . stand firm." Eph. 6:13


6th Circuit Confirms Rulings, Reverses Preliminary Injunctions against Tennessee, Kentucky SAFE Acts

September 29, 2023

The U.S. Court of Appeals for the Sixth Circuit on Thursday confirmed its earlier rulings and reversed preliminary injunctions against laws in Tennessee and Kentucky that protect minors from gender reassignment procedures. While neither injunction was still in effect, Thursday’s ruling establishes the laws in both states on a surer legal footing.

Judge Helene White dissented from the decision, as she had done in the previous rulings, beginning with a three-page discussion on “gender-affirming care,” in which she treats the claims of mainstream medical associations and transgender advocates as fact. She argued that the laws “facially discriminate based on a minor’s sex,” which would subject them to intermediate scrutiny. She argued that they failed to pass that test because “both statutes’ texts effectively reveal that their purpose is to force boys and girls to look and live like boys and girls.” She also concluded that the laws violated parental rights.

In the 2-1 decision, Chief Judge Jeffrey Sutton wrote that “life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges.”

“Constitutionalizing new areas of American life is not something federal courts should do lightly,” the court warned. Those challenging the laws “do not argue that the original fixed meaning of the due process or equal protection guarantees covers these claims,” they continued, but instead “seek to extend the constitutional guarantees to new territory.” The court noted that “states are indeed engaged in thoughtful debates over this issue,” counting 21 states with protections for minors from gender transition procedures and 14 states that ensure continued minor access to gender transition procedures. “Failure to allow these laws to go into effect would start to grind these all-over-the-map gears to a halt,” concluded the court.

The court addressed each of the challengers’ 14th Amendment claims. Regarding substantive due process, they noted that it only applied to “norms that are ‘deeply rooted in this Nation’s history and tradition,’” and that courts are increasingly wary of expanding these unenumerated rights. “This country does not have a ‘deeply rooted’ tradition of preventing governments from regulating the medical profession,” said the court. “Parental rights [also incorporated under substantial due process] do not alter this conclusion because parents do not have a constitutional right to obtain reasonably banned treatments for their children.”

The court particularly rejected the “Invocation of medical associations and other experts,” saying it “does not alter this conclusion.” For one thing, they explained, it does not meet the historical standard necessary to find a new right under substantive due process. For another, “the relevant medical and regulatory authorities are not of one mind,” said the court, noting the FDA had not approved gender transition drugs for the purpose of enabling a minor to transition his or her gender identity. Third, that standard is not “judicially manageable,” protested the court, and it would entirely undermine state authority. “What is it in the Constitution, moreover, that entitles experts in a given field to overrule the wishes of elected representatives and their constituents?”

Regarding equal protection, the court concluded that “The Tennessee and Kentucky laws treat similarly situated individuals evenhandedly. And that is true however one characterizes the alleged classifications in the law, whether as premised on age, medical condition, or sex.” The court declined to identify “transgender status as a suspect class” for a host of reasons, beginning with the Supreme Court’s hesitancy to do so and “fraught line-drawing dilemmas.” They noted that transgender status is “not an immutable group” nor “a politically powerless group.” They also added that Tennessee and Kentucky did not pass “an animus-driven law,” and “the laws do not draw constitutionally irrational lines.”

“At bottom, the challengers simply disagree with the States’ assessment of the risk and the right response to those risks,” said the court. “That does not suffice to invalidate a democratically enacted law on rational-basis grounds.”

Legislatures in Tennessee and Kentucky both passed laws in 2023 to protect minors from gender reassignment procedures. Both laws faced legal challenges in federal district courts. Both courts placed preliminary injunctions on the laws on June 28, preventing them from going into effect. Both states appealed.

On July 8, the Sixth Circuit stayed (paused) the injunction against Tennessee’s law, determining that “Tennessee is likely to succeed” on the merits. This allowed Tennessee’s law to go into effect.

On July 14, the district judge who had enjoined Kentucky’s law lifted his injunction in response to the Sixth Circuit’s ruling. This allowed Kentucky’s law to go into effect. When the Kentucky challengers appealed, the Sixth Circuit declined to interfere with his decision on July 31.

In its Thursday ruling, the Sixth Circuit consolidated the cases from Tennessee and Kentucky and reversed the preliminary injunctions, thus capping off this chapter of the controversy. The circuit court remanded the case back to the district courts to consider further evidence on a standing issue “before reaching the final injunction stage of the case.”

“This is huge,” reacted conservative firebrand Matt Walsh. “Our ban on child mutilation has been upheld. When we passed the bill, trans activists gloated that they would easily get it overturned in court.” The ACLU and Lambda Legal in a statement called the decision “a devastating result” and pledged to “take further action.”

“This is a big win for democracy,” wrote Tennessee Attorney General Jonathan Skrmetti (R). “Decisions that are not clearly resolved by the Constitution should be resolved by the people through their elected representatives.”

Joshua Arnold is a senior writer at The Washington Stand.