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A rare note of caution

Judge upholds Tennessee’s attempt to protect children from transgender procedures

Judge Jeffrey Sutton participates in a panel discussion at a Federalist Society convention in Washington, D.C., on Nov. 17, 2016. Associated Press/Photo by Cliff Owen

A rare note of caution

The U.S. Supreme Court may have adjourned for the summer, but lower federal courts are still at work. On Saturday, the U.S. Court of Appeals for the Sixth Circuit handed down the nation’s first ruling upholding a state ban on transgender treatments for children, bucking a prior trend by activist courts striking such laws. To this point, statutes regulating transgender transitions have gone 0 for 5 in federal district courts, but the decision authored by Chief Judge Jeff Sutton is likely the first of several to extend tentative approval to such laws.

In the spring of this year, the Tennessee legislature adopted a prohibition on transgender procedures on minors after a public outcry over such surgeries at the Vanderbilt University Medical Center. The statute allows children currently receiving such care to continue their pharmaceutical treatments but bans all transgender surgeries and new prescriptions for puberty blockers. The ACLU of Tennessee, along with several transgender children and their parents, promptly filed a lawsuit, and a district court judge issued a statewide preliminary injunction. The state, ably represented by rising star Attorney General Jonathan Skrmetti, sought an emergency appeal from the Sixth Circuit, the regional court of appeals that covers the Volunteer State

Judge Sutton, joined by the well-regarded Judge Amul Thapar, breathed life back into the law in a short opinion authored over the holiday week. As is typical for Judge Sutton, a George W. Bush appointee, he is cautious when courts wield the judicial power aggressively: “Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy.” Judge Sutton is doubly skeptical when the ACLU asks the courts “to extend the constitutional guarantees to new territory,” here taking broad concepts like equal protection and parents’ rights and applying them in novel ways.

States have historically enjoyed discretion to regulate medical care, and Judge Sutton sees no constitutional imperative to upset that apple cart. Though the Supreme Court has some overarching principles that could potentially be applied, such as its Bostock decision on transgender discrimination by employers, Sutton finds no on-point precedent for irreversible surgeries on minors. As such, he withholds judicial intervention and allows the considered judgment of Tennessee’s legislature to move forward.

States have historically enjoyed discretion to regulate medical care, and Judge Sutton sees no constitutional imperative to upset that apple cart.

The most entertaining paragraph in the opinion concerns the so-called consensus among “many members of the medical community” supporting “gender-affirming care.” Such a view “is not dispositive for the same reason we would not defer to a consensus among economists about the proper incentives for interpreting the impairment-of-contracts or takings clauses of the U.S. Constitution.” In other words, a modern-day convergence of opinion among elite medical associations has nothing to say about the meaning of the Fourteenth Amendment in 1868. He also exposes the thinness of the consensus: If “the medical and regulatory authorities” agreed “about using hormone therapy to treat gender dysphoria,” the FDA would by now have approved the use of these drugs for these purposes. That has not happened, however, giving us considerable pause about constitutionalizing an answer they have not given or, best we can tell, even finally studied.”

These lawsuits will require conservatives to draw some careful lines. For example, Judge Sutton relies on the long-standing tradition of states regulating medical practice. Yet in challenges to blue states’ bans on “conversion therapy,” where a professional helps a patient address gender dysphoria through talk-based counseling, conservatives argue that the state’s medical regulations must give way to the professional’s free speech rights. The two are different: The First Amendment includes an explicit right to free speech, but there is no right to demand a particular medical procedure or pharmaceutical that is not approved by the government.

Conservatives confront a similar conundrum on parents’ rights, the idea that the Fourteenth Amendment’s broad liberty guarantees include a right of parents to direct the upbringing of their children. In this case, the plaintiff parents believe that this type of care is best for their children, and the state argues that their parental judgment must give way to the state legislature’s policy choice to ban this treatment. Yet conservatives champion a robust conception of parents’ constitutional rights to raise their children when they oppose school district policies that hide a child’s gender transition from parents. Again, the two are superficially similar but ultimately different: the right to dictate medical care is not the same as the right to know about important developments at school.

This was only the most initial of hearings, done on an emergency basis, and the court promised expedited consideration by this fall. A similar case is coming to the Sixth Circuit from Kentucky, and other cases are pending in the Eighth Circuit (from Arkansas) and the Eleventh Circuit (from Alabama and Florida). If these courts come to divergent conclusions, the final authority may well be the U.S. Supreme Court. Nevertheless, this decision offers real hope.

Daniel R. Suhr

Daniel R. Suhr is an attorney who fights for freedom in courts across America. He has worked as a senior adviser for Wisconsin Gov. Scott Walker, as a law clerk for Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit, and at the national headquarters of the Federalist Society. He is a member of Christ Church Mequon. He is an Eagle Scout, and he loves spending time with his wife Anna and their two sons, Will and Graham, at their home near Milwaukee.

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