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


Sixth Circuit Leaves Kentucky SAFE Act Temporarily in Place

August 1, 2023

The Court of Appeals for the Sixth Circuit ruled Monday in favor of Kentucky’s law protecting minors from gender reassignment procedures (SB 150), allowing it to remain in effect while a lawsuit against it proceeds. The Sixth Circuit allowed a Tennessee law protecting minors from gender reassignment procedures to remain in effect on July 8, and it found only minor differences between the cases. Tennessee and Kentucky, both in the Sixth Circuit’s jurisdiction, are the only two states so far to win in federal court on the merits of their SAFE Act-style laws.

Before the Sixth Circuit’s Tennessee ruling (Williams v. Skrmetti), U.S. District Judge David Hale, of the Western District of Kentucky, issued a preliminary injunction against the state’s law on June 28. However, he lifted the injunction on July 14 in light of the appellate court’s new controlling precedent. The American Civil Liberties Union (ACLU) appealed, asking the Sixth Circuit to reinforce the injunction.

“That holding [Skrmetti] controls here,” the Sixth Circuit explained in their Kentucky opinion, Doe v. Thornbury. “Kentucky bans the same conduct as in Skrmetti,” they summarized. “Plaintiffs bring the same Equal Protection and Due Process claims that, in Skrmetti, we held were unlikely to succeed. … Their likelihood of success — often ‘the determinative factor’ — is the same here.”

“Indeed, plaintiffs identify only two differences between this case and Skrmetti,” the court said. First, Kentucky’s law contained a slightly different exception for minors currently taking gender reassignment hormones; it required them to begin weaning off immediately, instead of allowing them to continue with current treatments until a specified future date. On paper, this might make a difference, the court granted, but “the facts presented to us in Skrmetti were no different from the facts here. There, the district court found that the plaintiffs’ doctors would begin weaning immediately.”

Second, the ACLU argued that “some Kentucky officials disagree with the ban,” so the state’s interest in enforcing it was weaker. Governor Andy Beshear (D) vetoed the legislation, and the legislature overrode his veto. But the court responded, “The people of Kentucky enacted the ban through their legislature. That body — not the officials who disagree with the ban — sets the Commonwealth’s policies.” The dissenting judge did not mention this second suggested difference in her dissent.

As in Skrmetti, Judge Helene White dissented from the majority opinion of Chief Judge Jeffrey Sutton and Judge Amul Thapar. She reiterated her belief that, “Like the plaintiffs challenging Tennessee’s law, Plaintiffs here have shown that they are likely to succeed on the merits because Kentucky’s law discriminates on the basis of sex.” She also argued the differently framed exemption made Kentucky’s law harsher, thus causing greater harm, an argument that failed to persuade her colleagues in the majority.

The majority and dissenting opinions totaled only five pages, as both sides set forth their arguments more fully in Skrmetti, a case with nearly identical facts they decided only weeks ago.

Indeed, perhaps the most significant difference in the situation of Kentucky’s law compared to Tennessee’s is not legal but political. Unlike Tennessee, where Governor Bill Lee (R) won reelection in 2022 by a two-to-one margin, Kentucky’s gubernatorial election will take place this year, and it is far closer. This November, Kentucky Attorney General Daniel Cameron (R) — who intervened to defend SB 150 in court — will challenge incumbent Beshear — who vetoed it — in his reelection bid, making the issue a live political one going into the fall election.

Beshear’s veto may prove a political liability to his campaign. More than three-quarters of both legislative chambers voted to override it, a result that likely indicates widespread support for SB 150.

According to a National Review analysis, Beshear has tried to distance himself from his overridden veto, even spending money on a campaign ad in which he said, “I’ve never supported gender-reassignment surgery for kids, and those procedures don’t happen here in Kentucky. When I took office, I vowed to support parents, because as parents we know what’s best for our kids, not politicians in Frankfort or Washington.” The governor and his spokespersons have said the same to multiple news outlets, from The Associated Press to the Lexington Herald-Leader.

In his March 24 veto message, Beshear said that “improving access to gender-affirming care is an important means of improving health outcomes for the transgender population. Senate Bill 150 will cause an increase in suicide among Kentucky’s youth.” The statement did not indicate whether Beshear excluded surgeries from his understanding of the term “gender-affirming care.”

In addition to protecting minors from gender reassignment procedures, SB 150 also strengthened parental rights by forbidding teachers to hide information about their students from parents, and it strengthened student privacy in restrooms and locker rooms. Beshear’s veto message argued that SB 150 “rips away the freedom of parents to make medical decisions for their children” and “strips freedom from parents to make personal family decisions.”

Studies have shown parental rights retain widespread popular support, including a June poll in which 82% of likely voters in far-left California disagreed with the statement, “a person loses their parental rights when a child enters public school.” Beshear’s messaging clearly recognizes the power of parental rights in his right-leaning state, as even his most recent ad attempts to defend his veto of a law protecting minors from gender reassignment procedures by an appeal to parental rights.

Meanwhile, Cameron’s office notched a legal victory before the Sixth Circuit, which has left SB 150 in place for now. With three months until election day, the latest polls show Beshear leading Cameron by single digits. It’s unclear whether the Sixth Circuit’s decision will have any impact on the race.

Joshua Arnold is a senior writer at The Washington Stand.