6th Circuit upholds Laws Protecting Children
Huge win this week in the case L.W. v. Skrmetti.
Court Upheld Tennessee and Kentucky Laws Protecting Children
The 6th Circuit Judges upheld Tennessee 68-33-101 and Kentucky 311.372 state laws that protect children from harmful and unnecessary medical procedures.
Judges Sutton and Thapar delivered the opinion of the Court, please read Skrmetti 6th Circuit Decision.
Notable Quotes From Order
State and Federal Governments Have Long Played Critical Role in Regulating Health and Welfare
State and federal governments have long played a critical role in regulating health and welfare, which explains why their efforts receive “a strong presumption of validity.” Heller v. Doe, 509 U.S. 312, 319 (1993); see Kottmyer v. Maas, 436 F.3d 684, 690 (6th Cir. 2006).
State governments have an abiding interest “in protecting the integrity and ethics of the medical profession,” Glucksberg, 521 U.S. at 731, and “preserving and promoting the welfare of the child,” Schall v. Martin, 467 U.S. 253, 265 (1984) (quotation omitted). These interests give States broad power, even broad power to “limit[] parental freedom,” Prince v. Massachusetts, 321 U.S. 158, 167 (1944); see Parham v. J.R., 442 U.S. 584, 605–06 (1979), when it comes to medical treatment, cf. Watson v. Maryland, 218 U.S. 173, 176 (1910).
Parents Do Not have a Constitutional Right to Obtain Reasonably Banned Treatments for Their Children
Plaintiffs counter that, as parents, they have a substantive due process right “to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion).
At one level of generality, they are right. Parents usually do know what’s best for their children and in most matters (where to live, how to live, what to eat, how to learn, when to be exposed to mature subject matter) their decisions govern until the child reaches 18.
But becoming a parent does not create a right to reject democratically enacted laws.
The key problem is that the claimants overstate the parental right by climbing up the ladder of generality to a perch—in which parents control all drug and other medical treatments for their children— that the case law and our traditions simply do not support.
Level of generality is everything in constitutional law, which is why the Court requires “a ‘careful description’ of the asserted fundamental liberty interest.” Glucksberg, 521 U.S. at 721 (quotation omitted).
So described, no such tradition exists.
The government has the power to reasonably limit the use of drugs, as just shown. If that’s true for adults, it’s assuredly true for their children, as also just shown.
Invocation of medical associations and other experts in the medical community does not alter this conclusion.
The plaintiffs separately frame their claim as the right of parents “to obtain established medical treatments” for their children, emphasizing the many medical organizations that now support this treatment for adults and minors. Ky. R.2 ¶ 80.
At least three problems stand in the way of accepting this argument.
One is that the plaintiffs never engage with, or explain how they meet, the “crucial” historical inquiry to establish this right. Glucksberg, 521 U.S. at 721.
There is, to repeat, no such history or tradition.
Grounding new substantive due process rights in historically rooted customs is the only way to prevent life-tenured federal judges from seeing every heart-felt policy dispute as an emerging constitutional right..
A second problem is that the relevant medical and regulatory authorities are not of one mind about the cost-benefit tradeoffs of this care.
It is difficult to maintain that the medical community is of one mind about the use of these hormones for gender dysphoria when the FDA is not prepared to put its credibility and testing protocols behind the use.
What is new, evolving, and conflicting often prompts change and eventually leads to different best practices, something the Constitution facilitates rather than handcuffs.
Also diverse are the practices of other nations, so much so that amicus States on both sides claim support in foreign approaches, with one group emphasizing that the European countries who initiated these treatments are having second thoughts and raising the bar for using them, with the other group emphasizing that these countries have not yet completely banned the treatments. Compare Ala. Amicus Br. 21–24, with Cal. Amicus Br. 20 & n.39.
The third problem is the absence of judicially manageable standards for ascertaining whether a treatment is “established” or “necessary.”
One of the amicus curiae briefs in the case, in supporting the plaintiffs, forthrightly invokes three goals of the medical profession—
“autonomy,” “beneficence,” and “justice”—
as a source of guidance in the area. Bioethics Br. 16.
Useful as these principles may be to the medical profession and accurate as they may be in describing how judges would assess the validity of these laws under the plaintiffs’ approach, they do not offer meaningful guidance in determining whether to invalidate such laws.
Even the most unwieldy and subjective balancing tests offer more guidance than these generalized principles.
References to a child’s biological sex in the laws does not alter this conclusion.
Not so quick, the plaintiffs counter. They point out that the statutes treat minors differently based on
sex because a boy with abnormally low testosterone levels could receive a testosterone booster in
adolescence, but a girl could not receive testosterone to transition. Likewise, a girl could receive
estrogen to remedy a genetic condition, but a boy could not receive estrogen to transition. In this way, the plaintiffs claim, the availability of cross-sex hormone treatments implicates the minor’s sex.
We accept the premise but not the conclusion.
It is true that, by the nature of their biological sex, children seeking to transition use distinct hormones for distinct changes. But that confirms only a lasting feature of the human condition, not that any and all lawmaking in the area is presumptively invalid. One year ago, and nearly fifty years ago, the Supreme Court explained that laws regulating “medical procedure[s] that only one sex can undergo” ordinarily
do not “trigger heightened constitutional scrutiny.” Dobbs, 142 S. Ct. at 2245–46; see Geduldig,
417 U.S. at 496 n.20
Equal protection—suspect class.
The plaintiffs and the federal government separately invoke a distinct theory of equal protection—that the Act violates the rights of a suspect class: transgender individuals.
But neither the Supreme Court nor this Court has recognized transgender status as a suspect class. Until that changes, rational basis review applies.
The bar for recognizing a new suspect class is a high one.
The Supreme Court “has not recognized any new constitutionally protected classes in over four decades, and instead has repeatedly declined to do so.” Ondo, 795 F.3d at 609; see City of Cleburne, 473 U.S. at 442 (mental disability is not a suspect class); Murgia, 427 U.S. at 313–14 (age is not a suspect class); Rodriguez, 411 U.S. at 28–29 (poverty is not a suspect class); see also Obergefell, 576 U.S. 644 (declining to address whether gay individuals qualify as a suspect class).
That hesitancy makes sense. Regulation of treatments for gender dysphoria poses fraught line-drawing dilemmas, not unlike the problem facing regulations premised on wealth, age, and disability, including laws designed to allocate benefits on these grounds.
Plenty of challenges come to mind in the context of medical treatments for childhood gender dysphoria. Counseling versus drugs. Puberty blockers versus hormone treatments. Hormone treatments versus surgeries. Adults versus minors. One age cutoff for minors (16) versus another (18). And that’s just the line-drawing challenges that accompany treatments for gender dysphoria. What of other areas of regulation that affect transgender individuals? Bathrooms and locker rooms. Sports teams and sports competitions. Others are sure to follow.
Even when accompanied by judicial tiers of scrutiny, the U.S. Constitution does not offer a principled way to judge these lines.
Removing these trying policy choices from fifty state legislatures to one Supreme Court will not solve them and in truth runs the risk of making them harder to solve.
Instead of the vigorous, sometimes frustrating, “arena of public debate and legislative action” across the country and instead of other options provided by fifty governors and fifty state courts, we would look to one judiciary, suddenly delegated with authority to announce just one set of rules. Glucksberg, 521 U.S. at 720.
That is not how a constitutional democracy is supposed to work—or at least works best—when confronting evolving social norms.
Not an immutable group.
To establish a new classification, plaintiffs must show that transgender individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (quotation omitted).
It is difficult to see, at least at this stage of the case, how transgender identity fits that description.
Unlike existing suspect classes, transgender identity is not “definitively ascertainable at the moment of birth.”
It is not necessarily immutable, as the stories of “detransitioners” indicate and as plaintiffs do not dispute.
See Detransitioners’ Amicus Br.19–25. Instead of defining a “discrete group,” Bowen, 483 U.S. at 602, “transgender” can describe “a huge variety of gender identities and expressions,” 2022 WPATH Guidelines, supra, at S15.
Not a politically powerless group.
Concerns about a “political[ly] powerless[]” group and a dysfunctional political process also do not supply a reason for heightened review. Rodriguez, 411 U.S. at 28.
Whatever may have been true in the past about our society’s treatment of individuals with gender dysphoria, some of it surely lamentable, it is difficult to maintain that the democratic process remains broken on this issue today.
The President of the United States and the Department of Justice support the plaintiffs. A national anti-discrimination law, Title VII, protects transgender individuals in the employment setting. Fourteen States have passed laws specifically allowing some of the treatments sought here. Twenty States have joined an amicus brief in support of the plaintiffs. The major medical organizations support the plaintiffs. And the only large law firms to make an appearance in the case all entered the controversy in support of the plaintiffs. These are not the hallmarks of a skewed or unfair political process—and they offer no explanation for inviting a greater political dysfunction problem: the difficulty of amending the Constitution if the federal courts err in choosing to occupy the field.
Not an animus-driven law.
Plaintiffs also have not made the case that animus toward transgender individuals as a class drives this law. Assessing legislative “motives or purposes” is “a hazardous matter,” and it’s not the point of the inquiry. United States v. O’Brien, 391 U.S. 367, 383 (1968). Instead of asking judges to read the hearts and minds of legislators, the inquiry asks whether the law at issue is “inexplicable by anything but animus.” Trump v. Hawaii, 138 S.Ct. 2392, 2421 (2018).
The key problem is that a law premised only on animus toward the transgender community would not be limited to those 17 and under. The legislature plainly had other legitimate concerns in mind. A fair-minded legislature could review the evidence in the area and call for a pause, demanding more proof that these procedures are safe before continuing on the path the plaintiffs propose.
Neither risk aversion nor a fair-minded policy dispute about the best way to protect children shows animus.
ADF
Per Alliance Defending Freedom Senior Counsel and Vice President of Appellate Advocacy John Bursch,
“Tennessee and Kentucky are right to protect minors from harmful, irreversible, and experimental medical procedures that can permanently alter children’s bodies without any proven long-term benefit. Children suffering discomfort with their sex are best served by compassionate mental health care. Even the far-from-impartial World Professional Association for Transgender Health has admitted that the overwhelming majority of children will naturally resolve their gender dysphoria as they mature. That’s why the countries that have been the leaders in so-called ‘gender affirming care’—such as Sweden, England, Denmark, and Finland—are reversing course and now curtailing the use of dangerous ‘gender transition’ procedures and protecting children from the bad science that has devastated countless lives.
“As the court recognized, ‘Administering puberty blockers to prevent pubertal development can cause diminished bone density, infertility, and sexual dysfunction. Introducing high doses of testosterone to female minors increases the risk of erythocytosis, myocardial infarction, liver dysfunction, coronary artery disease, cerebrovascular disease, hypertension, and breast and uterine cancer. And giving young males high amounts of estrogen can cause sexual dysfunction and increases the risk of macroprolactinoma, coronary artery disease, cerebrovascular disease, cholelithiasis, and hypertriglyceridemia.’ Indeed, the court concluded, ‘no one disputes that these treatments carry risks or that the evidence supporting their use is far from conclusive.’
“Activist groups and professionals with large financial interests continue to push harmful puberty-blockers, potentially sterilizing cross-sex hormones, and irreversible genital-mutilation surgeries on children too young to understand the long-term implications for their lives. The 6th Circuit rightly agreed that Tennessee and Kentucky are free to implement laws that protect vulnerable children and give them time to flourish,”
WPATH Standards of Care
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