Over the last several years, we have witnessed an explosion of hospitals and clinics prescribing puberty blockers and hormones to children in order to “change” their gender. While some claim these drugs are necessary to protect the mental health of children who want a gender different from their biological sex, others have argued that these drugs have serious and irreversible adverse health consequences for children. These drugs are not approved by the FDA for the purpose of “changing” a person’s gender, and the treatments, therefore, are experimental. These concerns have prompted many states to enact laws preventing physicians from prescribing or administering such drugs to children for the purpose of having that child assume a gender that is different from their biological sex.
Tennessee recently enacted a law that made it unlawful to perform gender “reassignment” surgeries on minors and also prohibits the prescribing of puberty blockers and hormones to children in order to “change” a child’s gender. Shortly after the law was enacted, a federal district court held that the law’s prohibition on prescribing puberty blockers and hormones to children was unconstitutional and entered a preliminary injunction preventing enforcement of those provisions. The district court that entered the preliminary injunction found that parents and children have constitutional rights to obtain puberty blockers and hormones in order to create a gender identity different from the child’s biological sex. Specifically, the district court held that parents have a constitutional right under the Due Process Clause of the 14th Amendment to obtain such drugs for their children. The district court also held that the Tennessee law violated transgender children’s Equal Protection rights under the 14th Amendment. The Sixth Circuit held that it was highly doubtful that such constitutional rights existed.
The federal appellate court (“Sixth Circuit”) overseeing the district court that enjoined the Tennessee law, recently entered an order staying the district court’s preliminary injunction. As a result, Tennessee is free to enforce its law prohibiting doctors from prescribing puberty blockers and cross-sex hormones to minors for the purpose of “[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex . . . [or] [t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”
The State of Tennessee, as have many other states, determined that providing puberty blockers and hormones to affirm a child’s gender identity that is different from the child’s biological sex came with many potentially serious health consequences, including, for example, “becoming irreversibly sterile, having increased risk of disease and illness, or suffering adverse and sometimes fatal psychological consequences.” Further, these treatments are experimental, and the FDA has never approved the use of puberty blockers and hormones to have a child’s perceived gender diverge from the child’s biological sex. For example, there are no long-term studies evaluating the health consequences children will face as a result of the use of puberty blockers and hormones to “change” their gender.
States generally have the authority to enact legislation for the purpose of protecting the health and safety of their citizens, particularly children and those who cannot care for themselves. All states prohibit, for example, various types of physical and emotional abuse of children by their parents, such as physical violence and extreme neglect. Parents do, however, have certain rights with respect to the care and upbringing of their children, and children themselves have constitutional rights. There exist large areas in which the state should not second guess the decisions made for children by their parents. Medical decisions with respect to children, however, can raise extremely difficult questions. Parents should have the right to obtain routine medical care for their child without interference from the state. If a parent, however, refuses to obtain treatment for appendicitis that could kill their child, for instance, the state can and should step in to protect the child from immediate and almost certain harm.
The Sixth Circuit recognized that various states have gone in different directions with respect to the ability of parents to have physicians prescribe to their children puberty blockers and hormones to affirm a gender different from the child’s biological sex. Some states have prohibited such medical interventions, while others have either not addressed the issue or affirmatively supported the practice. The Sixth Circuit was concerned about removing such a contentious and complex issue from state legislatures and the democratic process by creating a constitutional right to such treatments:
That prompts the question of 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.
Courts should not invent constitutional rights for many reasons, the most important being that doing so is an affront to our democratic process.
The Sixth Circuit’s role was limited to determining whether parents and children covered by the Tennessee law have any constitutional rights to obtain puberty blockers and hormones. On this point, the plaintiffs identified two different constitutional rights. First, the parents argued that under the parental rights doctrine contained within the 14th Amendment’s Due Process Clause, they have the right to control the medical care their children receive. Second, they argued that the Tennessee law violated the children’s constitutional rights under the Equal Protection Clause contained in the 14th Amendment. The Sixth Circuit rejected both arguments.
The Supreme Court has held, under what is called the doctrine of Parental Rights, that parents have a constitutionally protected right to make certain decisions concerning their children without interference by the state. Most of the leading cases in this area of the law concern decisions involving a child’s education. For example, the Supreme Court has recognized that parents have the right to send their children to private school. A parent can also object to a child’s exposure to certain types of materials while the child is in a public school, such as sexual education. Courts have not, however, recognized a right by parents to demand a custom-made curriculum for their child.
The Supreme Court has not expanded the parental rights doctrine to medical decisions, and it is unclear how the Supreme Court would approach the issue. In the context of medical care, the constitutional issue is more complex than in many other areas. The state has a strong interest in protecting both children and the “integrity and ethics of the medical profession.” Further, a state also has a strong interest in controlling the ability of physicians to prescribe medications for purposes beyond the use that is approved by the Food and Drug Administration. Overall, courts are not supposed to create constitutional rights out of whole cloth, and given the limited guidance from the Supreme Court on this issue, caution is important.
The district court significantly expanded the parental rights doctrine, which the Sixth Circuit believed was not warranted given the factual record and existing case law. The Supreme Court has shown extreme reluctance to find new constitutional rights under the Due Process Clause. Such a right must be supported by showing that the alleged right is “deeply rooted in our history and traditions,” which is an extremely high burden. The Sixth Circuit did not see any evidence in the record to support such a finding. This lack of evidence and the Supreme Court’s reluctance to find constitutional rights under the Due Process Clause led the Sixth Circuit to reject the district court’s conclusion that such a right existed with respect to access to puberty blockers and hormones.
The Sixth Circuit made short work of the plaintiffs’ Equal Protection argument. At a high level of generalization, the Equal Protection Clause addresses discriminatory conduct. The problem with such a characterization is that all laws make distinctions, and the Supreme Court has held that the Equal Protection clause provides special protection against discrimination directed against certain groups, such as racial minorities and women.
The Sixth Circuit first pointed out that the law did not discriminate on the basis of sex, because the Tennessee law treated boys and girls exactly the same. Neither biological boys nor biological girls could obtain puberty blockers or hormones to “change” their gender.
The Sixth Circuit then rejected the argument that being “transgender” is itself a protected class under the Equal Protection Clause. The Sixth Circuit pointed out that the Supreme Court has never held that being “transgender” is a protected class under Equal Protection jurisprudence. Indeed, the Supreme Court has shown an unwillingness to increase the number of groups that constitute protected categories under the Equal Protection Clause.
A clear split exists between federal circuits on the Equal Protection Clause issue. Two federal appellate courts have held that the Equal Protection Clause does provide protection from laws such as the one passed by Tennessee. The Supreme Court will, therefore, have to resolve this issue.
The fact a circuit split exists, however, does not mean the Supreme Court will quickly take a case in order to resolve this split. The Supreme Court may wait and see how other federal appellate courts address these issues, which could take many years. There are a number of cases involving state laws that limit or prohibit gender-affirming medical procedures on children, given the serious health risks of such procedures. Those laws are being challenged in courts, and those cases will work their way up to federal appellate courts. This process can take a long time, and it could be years before the Supreme Court takes on one of these cases.
This means that a state’s ability to limit or prohibit gender-affirming medical treatments such as puberty blockers, hormones, and surgery will depend on the federal appellate court covering that state and the specific structure of the state law. We can certainly expect much more litigation in this area.
You can rest assured that The Law Office of George M. Sanders will remain up to date on the latest developments regarding this evolving legal issue. The protection, preservation, and exercise of our civil rights are paramount to the very essence of our freedom and democracy, underscoring the values of equality, fairness, and justice that we hold dear as a society. Our team has an unwavering commitment to defending these rights and providing robust representation. If your civil rights have been violated, reach out to The Law Office George M. Sanders today.
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