The Volokh Conspiracy
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Early this morning, a divided panel of the U.S. Court of Appeals for the Sixth Circuit issued a stay of a district court's preliminary injunction against portions of Tennessee's newly enacted law largely prohibiting pharmaceutical and surgical gender-affirming treatments for minors. Writing for the panel in L.W. v. Skrmetti, Chief Judge Sutton (joined by Judge Thapar) concluded that the district court was wrong to issue a preliminary injunction, largely because the legal challenge–which sought to declare the statute unconstitutional under the 14th Amendment–was unconstitutional. Judge White concurred in part and dissented in part.
Chief Judge Sutton's opinion summarizes the decision:
Tennessee enacted a law that prohibits healthcare providers from performing gender-affirming surgeries and administering hormones or puberty blockers to transgender minors. After determining that the law likely violated the Equal Protection and Due Process Clauses, the district court facially enjoined the law's enforcement as to hormones and puberty blockers and applied the injunction to all people in the State. Tennessee appealed and moved for an emergency stay of the district court's order. Because Tennessee is likely to succeed on its appeal of the preliminary injunction, we grant the stay.
The law in question, the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity, prohibits surgical procedures and the administration of hormones or puberty blockers for the purposes of gender transition, subject to a few narrow exceptions. Last month, a federal district court in Tennessee issued a preliminary injunction against the law, as applied to hormones and puberty blockers, on the grounds that the law was facially unconstitutional. (The court did not reach the law's application to surgical procedures or its private enforcement provisions because the plaintiffs lacked standing to challenge those provisions.)
In his opinion for the court, Chief Judge Sutton identified the core issues:
A request for a stay pending appeal prompts four questions: "Is the applicant likely to succeed on the merits? Will the applicant be irreparably injured absent a stay? Will a stay injure the other parties? Does the public interest favor a stay?" Roberts v. Neace, 958 F.3d 409, 413 (6th Cir. 2020). As is often the case in a constitutional challenge, the likelihood-of-success inquiry is the first among equals. Id. at 416. In this instance, it is largely dispositive. While we assess "the district court's ultimate decision whether to grant a preliminary injunction for abuse of discretion," we assess "its legal determination, including the likelihood of success on the merits, with fresh eyes." Arizona v. Biden, 40 F.4th 375, 381 (2022) (quotation omitted).
There are two merits-related problems with the district court's order. One relates to its scope. The other relates to its assessment of plaintiffs' chances in challenging the Act on due process and equal protection grounds.
On scope, Chief Judge Sutton explained, the district court made two errors. First, it invalidated the law facially, as opposed to as-applied to the plaintiffs. Second, "it assumed authority to issue a statewide injunction."
District courts "should not issue relief that extends further than necessary to remedy the plaintiff's injury." Commonwealth v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). The court's 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? Does the nature of the federal judicial power or for that matter Article III permit such sweeping relief? A "rising chorus" suggests not.
On the merits, Chief Judge Sutton explained why the district court's decision represented an unwarranted expansion of the 14th Amendment's limitations on state lawmaking.
The challengers also are unlikely to prevail on their due process and equal protection claims. Start with several considerations that apply to both claims. First, the challengers do not argue that the original fixed meaning of either the due process or equal protection guarantee covers these claims. That prompts the question whether the people of this country ever agreed to remove debates of this sort—about the use of new drug treatments on minors—from the conventional place for dealing with new norms, new drugs, and new technologies: the democratic process. Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field.
Second, while the challengers do invoke constitutional precedents of the Supreme Court and our Court in bringing this lawsuit, not one of them resolves these claims. In each instance, they seek to extend the constitutional guarantees to new territory. There is nothing wrong with that, to be sure. But it does suggest that the key premise of a preliminary injunction—likelihood of success on the merits—is missing. The burden of establishing an imperative for constitutionalizing new areas of American life is not—and should not be—a light one, particularly when "the States are currently engaged in serious, thoughtful" debates about the issue. Washington v. Glucksberg, 521 U.S. 702, 719 (1997).
Third, the States are indeed engaged on these issues, as the recent proliferation of legislative activity across the country shows. Compare Ga. Code Ann. § 31-7-35 (banning gender-affirming treatments for minors) and Idaho Code § 18-1506C (similar), with Cal. Penal Code § 819 (prohibiting cooperation with other states as to gender-affirming care provided to out-of-state minors in California), Colo. Rev. Stat. § 12-30-121(1)(d) (designating gender-affirming care as "legally protected health-care activity"), and Minn. Stat. § 260.925 (refusing to enforce out-of-state laws that would limit a parent's custody rights for consenting to gender-affirming care). See also Ala. Code § 16-1-52 (restricting sports participation by transgender students); Wyo. Stat. Ann. § 21-25-102 (similar); Mont. Code Ann. § 40-6-7X1(1)(f) (requiring parental consent for changes in a child's pronouns). Leaving the preliminary injunction in place starts to grind these all-over-the-map gears to a halt. Glucksberg, 521 U.S. at 720. Given the high stakes of these nascent policy deliberations—the long-term health of children facing gender dysphoria—sound government usually benefits from more rather than less debate, more rather than less input, more rather than less consideration of fair-minded policy approaches. To permit legislatures on one side of the debate to have their say while silencing legislatures on the other side of the debate under the U.S. Constitution does not further these goals.
On the Due Process claim, Chief Judge Sutton writes:
Parents, it is true, 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). But the Supreme Court cases recognizing this right confine it to narrow fields, such as education, Meyer v. Nebraska, 262 U.S. 390 (1923), and visitation rights, Troxel, 530 U.S. 57. No Supreme Court case extends it to a general right to receive new medical or experimental drug treatments. In view of the high stakes of constitutionalizing areas of public policy, any such right must be defined with care. Glucksberg, 521 U.S. at 721 (requiring "a 'careful description' of the asserted fundamental liberty interest" (quotation omitted)). The challengers have not shown that a right to new medical treatments is "deeply rooted in our history and traditions" and thus beyond the democratic process to regulate. Id. at 727.
On the Equal Protection claim, Chief Judge Sutton notes that it would be quite difficult for the plaintiffs to demonstrate that the Tennessee law lacks a rational basis, and expresses skepticism of the plaintiffs' claim that the law discriminates on the basis of sex and should be subject to intermediate scrutiny.
The Act bans gender-affirming care for minors of both sexes. The ban thus applies to all minors, regardless of their biological birth with male or female sex organs. That prohibition does not prefer one sex to the detriment of the other. See Reed, 404 U.S. at 76. The Act mentions the word "sex," true. But how could it not? That is the point of the existing hormone treatments—to help a minor transition from one gender to another. That also explains why it bans procedures that administer cross-sex hormones but not those that administer naturally occurring hormones. Tenn. Code Ann. § 68-33-103(b)(1)(A). A cisgender girl cannot transition through use of estrogen; only testosterone will do that. A cisgender boy cannot transition through use of testosterone; only estrogen will do that. The reality that the drugs' effects correspond to sex in these understandable ways and that Tennessee regulates them does not require skeptical scrutiny. Dobbs, 142 S. Ct. at 2245–46; see Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974); see also Reed, 404 U.S. at 76. "The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a 'mere pretex[t] designed to effect an invidious discrimination against the members of one sex or the other.'" Dobbs, 142 S. Ct. at 2245–46 (quoting Geduldig, 417 U.S. at 496 n.20). No such pretext has been shown here. If a law restricting a medical procedure that applies only to women does not trigger heightened scrutiny, as in Dobbs, a law equally appliable to all minors, no matter their sex at birth, does not require such scrutiny either.
The plaintiffs separately claim that the Act amounts to transgender-based discrimination, violating the rights of a quasi-suspect class. But neither the Supreme Court nor this court has recognized transgender status as a quasi-suspect class. Until that changes, rational basis review applies to transgender-based classifications. In the context of a preliminary injunction and the need to establish a likelihood of success on the merits, that should be nearly dispositive given the requirement of showing a "clear" right to relief. . . .
The bar for recognizing a new quasi-suspect class, moreover, is a high one. The Supreme Court has recognized just two such classes, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441 (1985) (gender and illegitimacy), and none in recent years. The Court "has not recognized any new constitutionally protected classes in over four decades, and instead has repeatedly declined to do so." Ondo v. City of Cleveland, 795 F.3d 597, 609 (6th Cir. 2015); Cleburne, 473 U.S. at 442 (holding that mental disability is not a quasi-suspect class); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curiam) (holding that age is not a quasi-suspect class); see Obergefell v. Hodges, 576 U.S. 644 (2015) (declining to address whether gay individuals qualify as a suspect class).
That hesitancy makes sense here. Gender identity and gender dysphoria pose vexing line-drawing dilemmas for legislatures. Plenty of challenges spring to mind. Surgical changes versus hormone treatment. Drugs versus counseling. One drug versus another. One age cutoff for minors versus another. Still more complex, what about sports, access to bathrooms, definitions of disability? And will we constitutionalize the FDA approval rules in the process? Even when accompanied by judicial tiers of scrutiny, the U.S. Constitution does not offer a principled way to judge each of these lines—and still others to boot. All that would happen is that we would remove these trying policy choices from fifty state legislatures to one Supreme Court. 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 to sort it all out. 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 and innovative medical options.
Chief Judge Sutton then explains that the court will expedite the appeal in which the court will consider the issues more fully.
These initial views, we must acknowledge, are just that: initial. We may be wrong. It may be that the one week we have had to resolve this motion does not suffice to see our own mistakes. In an effort to mitigate any potential harm from that possibility, we will expedite the appeal of the preliminary injunction, with the goal of resolving it no later than September 30, 2023. In the interim, the district court's preliminary injunction is stayed.
Judge White worte separately, concurring in part and dissenting in part, largely disagreeing on the question of Equal Protection.
Because I believe that Tennessee's law is likely unconstitutional based on Plaintiffs' theory of sex discrimination, I would not stay the district court's injunction, although I would narrow its scope. I do not find it necessary to address Plaintiffs' alternative theories of constitutional injury at this time.
Tennessee's law likely discriminates against Plaintiffs on the basis of sex in violation of the Equal Protection Clause, thus triggering intermediate scrutiny. Although the state argues that the act "appl[ies] equally to males and females," Appellant's Br. 8-9, the law discriminates based on sex because "medical procedures that are permitted for a minor of one sex are prohibited for a minor of another sex," Brandt v. Rutledge, 47 F.4th 661, 669 (8th Cir. 2022). To illustrate, under the law, a person identified male at birth could receive testosterone therapy to conform to a male identity, but a person identified female at birth could not. See Tenn. Code Ann. § 68-33-103(a)(1). Indeed, until today, every federal court addressing similar laws reached the same conclusion as Brandt.
In the Title VII context, the Supreme Court has made clear that sex discrimination occurs when an "employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth." Bostock v. Clayton County, 140 S. Ct. 1731, 1741 (2020). That principle is directly on point here and highly persuasive. . . .
"Like racial classifications, sex-based discrimination is presumptively invalid." Vitolo v. Guzman, 999 F.3d 353, 364 (6th Cir. 2021). "Government policies that discriminate based on sex cannot stand unless the government provides an 'exceedingly persuasive justification,'" id. (quoting United States v. Virginia, 518 U.S. 515, 531 (1996)), which requires showing that the "classification serves 'important governmental objectives,' and . . . is 'substantially and directly related' to the government's objectives," id. (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)). Applying this standard, I fail to see how the state can justify denying access to hormone therapies for treatment of minor Plaintiffs' gender dysphoria while permitting access to others, especially in light of the district court's robust factual findings on the benefits of these treatments for transgender youth.
However, I agree that the district court abused its discretion in granting a statewide preliminary injunction. As the majority observes, "District courts 'should not issue relief that extends further than necessary to remedy the plaintiff's injury.'" Maj. Op. at 5 (quoting Commonwealth v. Biden, 57 F.4th 545, 556 (6th Cir. 2023)). I would uphold the stay as it applies to Plaintiffs and also Vanderbilt University Medical Center.
Lastly, I reiterate the majority's caveat that today's decision is preliminary only.
GIven the number of recently enacted laws on this issue, and the resulting legal challenges, this issue will likely end up before the Supreme Court before long.