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In July, a divded panel of the U.S. Court of Appeals for the Sixth Circuit stayed a preliminary injunction against a Tennessee law barring pharmaceutical and surgical gender-affirming care for minors diagnosed with gender dysphoria. A similar case arose out of Kentucky. On Thursday, a divided panel of the U.S. Court of Appeals for the Sixth Circuit reversed the preliminary injunctions issued in both cases. Chief Judge Sutton wrote the majoirty opinion in Skrmetti v. L.W., joined by Judge Thapar, rejecting both due process and equal protection challenges to the laws. Judge White dissented.

In his opinion, Chief Judge Sutton stresses the high hurdle plaintiffs must clear to justify a preliminary injunction, explains why the plaintiffs cannot show that the Tennessee and Kentucky laws are clearly precluded under existing precedent, and makes the case that judges should tread cautionsly before expanding existing constitutional guarantees to preclude state-level experimentation with emerging issues.

The claimants face several initial headwinds in obtaining relief. First, they do not argue that the original fixed meaning of the due process or equal protection guarantees covers these claims. That prompts the question whether the people of this country ever agreed to remove debates of this sort—over the use of innovative, and potentially irreversible, medical treatments for children—from the conventional place for dealing with new norms, new drugs, and new public health concerns: 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 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 certain. But this reality does suggest that the key premise of a preliminary injunction—a showing of a likelihood of success on the merits—is missing. Constitutionalizing new areas of American life is not something federal courts should do lightly, 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 in thoughtful debates over this issue, as the recent proliferation of legislative activity across the country shows. By our count, nineteen States have laws similar to those in Tennessee and Kentucky, all of recent vintage. . . . At least fourteen other States, meanwhile, provide various protections for those seeking treatments for gender dysphoria, all too of recent vintage. . . .

Most of this legislative activity occurred within the last two years. Failure to allow these laws to go into effect would start to grind these all-over-the-map gears to a halt. 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 Constitution does not further these goals. That is all the more critical in view of two realities looming over both cases—the concept of gender dysphoria as a medical condition is relatively new and the use of drug treatments that change or modify a child's sex characteristics is even more recent. Prohibiting citizens and legislatures from offering their perspectives on high-stakes medical policies, in which compassion for the child points in both directions, is not something life-tenured federal judges should do without a clear warrant in the Constitution.

The opinion goes on to walk through the various due process and equal protection arguments and rejects the claims that the laws in question impermissibly infringe upon fundamental rights or violate equal protection, either by adopting an impermissible sex-based classification or discriminating against a suspect class.

Chief Judge Sutton's opinion concludes:

No one in these consolidated cases debates the existence of gender dysphoria or the distress caused by it. And no one doubts the value of providing psychological and related care to children facing it. The question is whether certain additional treatments—puberty blockers, hormone treatments, and surgeries—should be added to the mix of treatments available to those age 17 and under. As to that, we return to where we started. This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two. Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments. That is precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges.

For these reasons, we reverse the preliminary injunctions issued in these cases and remand them for further proceedings consistent with this decision.

As noted, Judge White dissented, concluding that the laws violate both due process and equal protection. Her dissent begins:

The statutes we consider today discriminate based on sex and gender conformity and intrude on the well-established province of parents to make medical decisions for their minor children. Despite these violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the majority concludes that the statutes are likely constitutional and reverses district court orders enjoining the statutes. . . .

And her dissent concludes:

As the majority notes, the heated political debate over gender-affirming care has yielded varying laws in Tennessee, Kentucky, and throughout our country. In the normal course, the Constitution contemplates the states acting as laboratories of democracies to resolve the controversies of the day differently. See New State Ice Co v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

But when a fundamental right or freedom from discrimination is involved, experimentation has no place. "The very purpose of" our constitutional system "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." W. Va. St. Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943). Our "fundamental rights may not be submitted to vote; they depend on the outcome of no elections." Id. Similarly, "[n]o plebiscite can legalize an unjust discrimination." Lucas v. Forty-Fourth Gen. Assemb., 377 U.S. 713, 736 n.29 (1964) (citation omitted).

Tennessee's and Kentucky's laws tell minors and their parents that the minors cannot undergo medical care because of the accidents of their births and their failure to conform to how society believes boys and girls should look and live. The laws further deprive the parents—those whom we otherwise recognize as best suited to further their minor children's interests—of their right to make medical decisions affecting their children in conjunction with their children and medical practitioners. For these reasons, I dissent.

Given the holding and the current composition of the Sixth Circuit, this is not a particularly strong candidate for en banc review. There is also no circuit split yet on this question. The only other federal appeals court to rule on this issue thus far -- the U.S. Court of Appeals for the Eleventh Circuit -- reached the same conclusion. Several district courts have gone the other way, however, making it possible that a circuit split could still emerge, precipitating Supreme Court review.

UPDATE: One potential source for a crcuit split could be two cases currently pending in the U.S. Court of Appeals for the Fourth Circuit -- Fain v. Crouch and Kadell v. Fowell -- which involve state refusals to cover gender reassignment surgery and some other treatments for gender dysphoria under Medicaid or other state-run health care plans. The Fourth Circuit heard both cases en banc earlier this month, and it seems possible the court will disagree with the Sixth Circuit, at least with regard to whether such restrictions violate the Equal Protection Clause.

SECOND UPDATE: There is arguably a circuit split already with the U.S. Court of Appeals for the Eighth Circuit (at least for now). Last year, in Brandt v. Rutledge, the Eighth Circuit affirmed a preliminary injunction against an Arkansas law barring gender transition treatments for minors. The court also denied a petition for rehearing en banc. Of note, five judges called for en banc rehearing, and three more noted they opposed en banc rehearing because of the interlocutory posture of the case, and not because they concurred with the panel opinion. (The Eighth Circuit has eleven judges in active service.) Now that the district court has enjoined the law and the case is now on appeal, Arkansas has petitioned for initial hearing en banc. Should this motion be granted, I suspect the Eighth Circuit will agree with the Sixth and Eleventh Circuits, thus eliminating the circuit split.