Court Halts Challenge to Tennessee Ban on Gender-Altering Procedures

In a move that has significant implications for Christian medical practitioners, a Tennessee law banning gender-altering procedures for minors can take effect following removal of a preliminary injunction.

The July 8 ruling by by the United States Sixth Circuit Court of Appeals favors the state of Tennessee regarding a challenge against its new ban on gender-altering surgeries and procedures for minors in Senate Bill 1 (SB1). The law was set to take effect on July 1.

In a 2-1 decision, the circuit court granted a stay to the district court’s preliminary injunction against the bill. While the district court had ruled in favor of the plaintiff and issued a statewide injunction against SB1, the circuit court’s ruling invalidated the district court’s injunction until September 30. Upon that date, the circuit court will revisit the plaintiffs’ challenge against Tennessee in the case L.W. v. Skrmetti. 

Tennessee’s SB1 holds that “a healthcare provider cannot administer a medical procedure to a minor for the purpose of either enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex, or treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” The law prohibits surgical removal, modification, and alteration of body parts, as well as puberty and hormone blockers. 

The law contains two exceptions. First, such procedures are permissible when treating congenital defects, precocious puberty, disease, or physical injuries. Second, the law contains a “Continuing Care” exception, which allows anyone currently undergoing the addressed procedures to keep receiving long-term treatment until March 1, 2024, so long as the treatment began before July 1, 2023. 

The plaintiffs argued that SB1’s prohibition on surgeries, as well as its prohibition on hormone and puberty blockers, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The plaintiffs’ challenge was facial, meaning that they argued SB1 was inherently unconstitutional, not just unconstitutional in their cases. While the district court held that the plaintiffs lacked standing to challenge the prohibition on surgeries, the district court ruled in favor of the plaintiffs in regard to the hormone and puberty blocker issue. The court there issued a statewide injunction that nullified a large portion of SB1. 

In response, the Sixth Circuit cast doubt on the facial challenge from the plaintiffs. Citing the Supreme Court’s holding in United States v. Salerno, the Sixth Circuit ruled that litigants raising “a facial challenge to a statute normally ‘must establish that no set of circumstances exists under which the statute would be valid…’” In regard to the statewide injunction, the circuit court argued that it was an excessive remedy for the plaintiff’s injury. Citing their opinion in Commonwealth v. Biden, district courts “should not issue relief that extends further than necessary to remedy the plaintiff’s injury.” Judge Jeffrey Sutton, writing for the majority of the Sixth Circuit, opined, “the [statewide] injunction prohibits Tennessee from enforcing the law against the nine challengers in this case and against the other seven million residents of the Volunteer State. But absent a properly certified class action, why would nine residents represent seven million?”

To the plaintiff’s arguments on the Fourteenth argument, the majority pointed out how the original meaning of either the Due Process or Equal Protection Clause does not guarantee access to gender-altering procedures for minors. The plaintiffs argue that the doctrine of Substantive Due Process protects a parent’s ability to make decisions for their children, including whether or not they should receive gender-altering treatment like hormone blockers. Yet, the majority of the Sixth Court ruled that the Supreme Court only narrowly extended Substantive Due Process protections to parents’ decision-making in cases of education (cf. Meyer v. Nebraska) and visitation rights (cf. Troxel v. Granville). To the contrary, in the context of novel medical procedures not yet approved by the FDA, the Sixth Circuit pointed out that “states have broad power…to ‘limit parental freedom,’ Prince v. Massachusetts, Parham v. J. R.”

The Supreme Court’s decision in Washington v. Glucksberg holds that if plaintiffs had not shown that their asserted right is “deeply rooted in the nation’s history and tradition,” they cannot justify bypassing the usual democratic process and deliberation in shaping legislation. Because the Sixth Circuit held that plaintiffs have not shown their asserted right to gender-altering treatment for minors is deeply rooted in America’s tradition, they ruled against the plaintiff’s Due Process argument. 

To the Equal Protection argument, the circuit court found no violation from SB1. Because the law prohibits gender-altering treatment for both male and female minors, the law is applicable to all minors regardless of their sex. The majority opined that “If a law restricting a medical procedure that applies only to women does not trigger heightened scrutiny, as in Dobbs, a law equally applicable to all minors does not require such scrutiny either.”

The court’s ruling in L.W. v. Skrmetti has significant implications for Christian medical practitioners. Prior to SB1, Christian doctors could be sued by clients for refusing to perform a gender-altering procedure when they requested for it. While the federal courts have previously protected Christian doctors’ religious appeal to refuse performing said treatments, the general legality of gender-altering procedures still allowed for the suit to be filed by individuals seeking such treatment.₁ This would force Christian doctors to seek legal counsel in order to address the lawsuit, a potentially costly and arduous process. The circuit court’s stay to the district court’s injunction against SB1, however, allows SB1 to take effect and by extension, outlaws gender-altering surgeries for minors. Now, Christian doctors are not even liable to address a lawsuit from minors seeking gender-altering medical treatment for the procedures in question are now illegal.

The circuit court’s decision is a response to an emergency motion to invalidate the district court’s preliminary injunction, as the district court’s restraining order came around the same time that SB1 became operative, July 1. The Sixth Circuit plans to resolve the dispute by September 30. Until then, SB1 is operative throughout the Volunteer State.

Endnotes:

1. See The Religious Sisters of Mercy et al. v. Becerra (8th Cir. 2022) and Becerra v. Franciscan Alliance et al. (5th Cir. 2022)