States Can Prohibit Physicians From Proscribing Puberty Blockers and Cross-Sex Hormones To Children Dealing With Gender Dysphoria: According to The Sixth Circuit Federal Appellate Court

A hot button issue today involves whether physicians can prescribe puberty blockers and cross-sex hormones to children in order to address gender dysphoria. Some states have enacted laws that expressly endorse the prescribing of such drugs to children dealing with gender dysphoria. Other states have enacted laws that prohibit physicians from prescribing such drugs to children.

The states of Tennessee and Kentucky passed laws that make it unlawful for physicians to prescribe puberty blockers and cross-sex hormones to children in an effort to address gender dysphoria. Some parents and children challenged the Tennessee and Kentucky laws by claiming that prohibiting children from receiving these drugs is unconstitutional. The district courts hearing these cases held that the laws probably violated the US Constitution, and entered preliminary injunctions prohibiting Tennessee and Kentucky from enforcing those laws. The Sixth Circuit federal appellate court, that oversees both district courts, reversed these decisions and held that parents and children did not have a constitutional right to such treatments.

A. Some Background

It is well recognized that states can regulate the practice of medicine and the medical services provided within their borders. States, for example, are responsible for licensing physicians, setting appropriate standards of care, setting ethical standards for physicians and prohibiting certain types of medical treatments. Medical care in America is also heavily influenced by federal laws and agencies that address, for example, drug safety and the payment of medical services. There is no presumption that state involvement in regulating the medical profession is somehow improper.

Further, standards of care in medicine are constantly changing. Advances in medical science, the development of new drugs, and the results of long-term clinical studies frequently lead to changes in the standard of care and the rejection of medical treatments that were once considered safe and effective. It is, therefore, highly problematic to say that a certain medical treatment is constitutionally protected and, thus, not easily subject to reevaluation.

B. The Sixth Circuit’s Decision

The Sixth Circuit pointed out that the most widely used treatment guidelines in the United States for gender dysphoria in children are of relatively recent vintage. Further, these new guidelines have generated considerable controversy within the medical community, and many foreign countries have either refused to adopt such guidelines or have abandoned them. Driving this controversy is the risk that giving puberty blockers and cross-sex hormones to children, in order to treat gender dysphoria, can cause severe long-term adverse and irreversible consequences. Finally, the current treatment guidelines the plaintiffs want the court to adopt are not supported by long-term studies evaluating the effects of these drugs on children.

The potential adverse consequences of giving puberty blockers and cross-sex hormones to children strongly suggests that Tennessee and Kentucky had rational reasons for the challenged laws. In most cases, a state’s having a rational basis for a law is all that is necessary, from a constitutional perspective, to justify the law.

Under certain constitutional doctrines, however, a rational basis is insufficient. The parents and children challenging the Tennessee and Kentucky laws argued that these laws violated two separate constitutional rights, which, if applicable, made those laws subject to much higher levels of scrutiny. First, the parents argued that they have a right, under the Due Process Clause of the 14^th Amendment, to control the medical care their children receive. The second claim was that denying children puberty blockers and cross-sex hormones violated the Equal Protection Clause of the 14^th Amendment. The Sixth Circuit rejected these arguments.

1. Parental Rights Under the Due Process Clause

The issue of parental rights has recently generated significant attention. Some parents have tried to use the doctrine of parental rights to limit what is taught to their children in public schools, or to give parents the ability to opt-out of certain types of lessons. Other parents have used the doctrine of parental rights to argue that states cannot interfere with a parent’s decision to obtain puberty blockers and cross-sex hormones for their children.

The phrase “parental rights” has both a commonplace meaning and a constitutional meaning. Typically, “parental rights” means the ability of parents to raise their children according to their own values and beliefs. The constitutional doctrine of parental rights is much more narrow than the general concept of parental rights. While the Supreme Court has, on occasion, used broad language when discussing the right of parents to raise their own children in defiance of various state laws, its actual decisions are narrow and limited in their scope. While the Supreme Court has not ruled out a broader role for the doctrine of “parental rights,” in the last 100 years, the Court has not expanded the constitutional doctrine of parental rights beyond certain types of educational decisions and some custody issues. The Supreme Court has never held that parents have a broad constitutional right to seek certain types of medical care for their children when a state has prohibited such treatments. Indeed, the parents challenging the Tennessee and Kentucky laws conceded this point to the Sixth Circuit. They nonetheless asked the Sixth Circuit to expand the doctrine of parental rights to include letting parents decide whether their children need puberty blockers and cross-sex hormones to treat gender dysphoria.

The Sixth Circuit held that the parents had not come close to showing a deeply rooted tradition of allowing parents to override the decisions of a state government to prohibit certain medical procedures for children. Instead, according to the Sixth Circuit, the evidence showed the opposite. States have long regulated the medical profession, and a history of states passing laws designed to protect children exists. Finally, there is no tradition of parents having the right to obtain puberty blockers and cross-sex hormones for children.

The Sixth Circuit pointed out a number of problems with the parents’ arguments. First, while parents make many decisions concerning their children’s medical care, this does not mean that courts have found that “parents control all drug and other medical treatments for their children.” A long tradition exists of states banning certain medical treatments and access to certain drugs. Parents cannot override these laws simply because they want their child to receive a certain type of care or a certain drug.

Further, this is not a situation in which parents themselves are providing basic medical care to their children. When parents want their children to receive puberty blockers and cross-sex hormones they must involve a physician. States, however, have long regulated the medical profession, and there is no tradition of parents to free physicians from their obligations under state laws concerning the practice of medicine.

Finally, constitutionalizing a medical procedure raises significant problems. What is considered appropriate medical care today, may not be considered appropriate medical care years later. Bloodletting was a standard medical procedure for hundreds of years, yet this would not be considered appropriate medical care today. Constitutionalizing a certain medical procedure, however, could make it extremely difficult to eliminate such a procedure even if it turns out that the procedure causes more harm than good.

According to the Sixth Circuit, states, and not a federal court, should decide whether children can receive puberty blockers and cross-sex hormones to treat gender dysphoria. The science underlying the use of such drugs is not settled, the risks and benefits associated with such treatments are not fully understood, the treatments may very well cause irreversible harm to children.

2. The Equal Protection Clause

The Equal Protection Clause of the 14^th Amendment prohibits certain types of discrimination. Not all discrimination, however, is unlawful. Most laws “discriminate” in a technical sense, in that they treat some people or things differently than others. Given the extremely broad scope of the word “discrimination,” most state laws are constitutional so long as they have rational basis. Laws that target groups based on their race, national origin and sex, however, receive heightened scrutiny. The parents and children trying to invalidate the Tennessee and Kentucky laws under the Equal Protection Clause tried to fit their case into a heightened level of scrutiny.

Three types of discrimination were identified, none of which merited heightened scrutiny under the Equal Protection Clause: age discrimination, discrimination against hormone treatments, and sex discrimination. The Sixth Circuit rejected the claim that the Kentucky and Tennessee laws unlawfully discriminated according to age, because many distinctions are drawn in the medical field based on age. There is nothing invidious or suspect about treating children differently than adults with respect to medical treatments or prescribing drugs.

With respect to medical treatments, the Sixth Circuit held that regulating one medical treatment differently from other medical treatments did not trigger heightened scrutiny. Courts have generally rejected calls to give certain medical treatments special protection under the Equal Protection Clause. The differences between the myriad types of medical treatment make it impossible to treat all medical treatments the same. The differences in factors such as the risk of adverse consequences, the invasiveness of the procedure and the procedure’s efficacy make it essential that state legislatures have flexibility to treat different procedures in different ways. Imposing limits or even banning certain medical procedures does not, by itself, suggest invidious discrimination that merits constitutional intervention.

Finally, the Sixth Circuit rejected the argument that the Kentucky and Tennessee laws discriminated on the basis of sex. First, and foremost, the Tennessee and Kentucky laws do not treat males and females differently. Neither sex is able to obtain puberty blockers or cross-sex hormones. The mere fact that the Tennessee and Kentucky laws mention “sex” does not mean that their prohibitions on puberty blockers and cross-sex hormones constitute sex discrimination. Instead, the statutes necessarily had to discuss biological sex given the nature of the procedures involved.

The plaintiffs argued, however, that these laws treat “trans” identifying individuals differently from other people. The Sixth Circuit rejected this argument on the ground that the Supreme Court has not held that being “trans” constitutes a classification that is entitled to heightened protection under the Equal Protection Clause. The Sixth Circuit pointed out that the Supreme Court has not created a new protected class under the Equal Protection Clause for a long time, and the criteria the Supreme Court has used in the past to create such protected classes do not apply to “trans” identifying individuals.

Courts have gone in different directions with respect to the issues raised by laws that prohibit giving puberty blockers and cross-sex hormones to children to address gender dysphoria. At this point, a clear split exists between different federal appellate courts, which increases the likelihood that the Supreme Court will address this issue.

In today’s complex world, our civil rights can face new challenges and infringements. That is why it is crucial to have a dedicated, experienced legal team like The Law Offices of George M. Sanders by your side. With our deep understanding of the law and our unwavering commitment to defending civil liberties, we stand ready to fight for your rights against abuse and infringement. Don’t let your freedoms be compromised. If you have experienced a violation of your civil rights, contact The Law Offices of George M. Sanders today.