Nick Rader

This September, in L.W. ex rel. Williams v. Skrmetti,[1] the United States Court of Appeals for the Sixth Circuit reversed two preliminary injunctions that had prevented state gender affirming care restrictions from taking effect.[2]  Now, statutes in both Tennessee and Kentucky prohibit minors in most circumstances from obtaining certain medical procedures offered to treat gender dysphoria.[3] These procedures include surgical treatments and the administration of puberty blockers or hormones.[4]  

In its decision, the Sixth Circuit considered constitutional challenges to the Tennessee and Kentucky statutes under both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.[5]  But noting that the act of constitutionalizing “new areas of American life is not something federal courts should do lightly,” the court held that a showing of a likelihood of success on the merits—“the key premise of a preliminary injunction”—was missing.[6]

The Ongoing Democratic Debate

The availability of gender affirming care for minors represents a relatively recent phenomenon.[7]  For example, the World Professional Association for Transgender Health did not publish standards permitting cross-sex hormones for minors under the age of 16 until 2012.[8]  And many surgical treatments have been offered to minors only in the past six years.[9]  Nevertheless, professional associations such as the American Medical Association, the American Academy of Pediatrics, and the American Psychiatric Association have now endorsed guidelines that support the safety and efficacy of these treatments for minors.[10]

But as the Sixth Circuit noted in L.W., even expert consensus, to the extent such a consensus exists,[11]cannot prescribe new constitutional rights.[12]  Rather, “[w]hen the Constitution is neutral about an issue,” legislatures possess broad discretion to regulate the matter.[13]  Therefore, these treatments have been submitted to the democratic process, with state legislatures across the country weighing the treatments’ cost-benefit implications in relation to the health and welfare of minors.[14]  And as a result, at least thirty-five states have enacted laws “of recent vintage” that either preserve or limit a minor’s access to these still controversial forms of gender affirming care.[15]

Yet despite the vigor of the ongoing debate, courts have repeatedly recognized that certain fundamental rights must be withdrawn from “the vicissitudes of political controversy.”[16]  The difficulty for the courts, then, lies in identifying these fundamental rights.

The Substantive Due Process Challenge

In addition to its procedural guarantees, the Fourteenth Amendment’s Due Process Clause protects “against government interference with certain fundamental rights and liberty interests . . . deeply rooted in this Nation’s history and tradition.”[17]  The Supreme Court has held that when categorizing a fundamental right under substantive due process, courts must refer to “the most specific level” at which a tradition protecting “the asserted right can be identified.”[18]  Undoubtedly, parents possess a fundamental right to direct and guide the upbringing of their children.[19]  But, in determining the appropriate level of specificity, the Sixth Circuit in L.W. grappled with whether this right specifically furnishes parents with the power “to control all drug and other medical treatments for their children.”[20]

Thus, the Sixth Circuit weighed the fundamental rights of the parents against the established interest of state and federal governments in “regulating health and welfare”[21] and “preserving and promoting the welfare of the child.”[22]  At times, the court noted that this governmental interest may provide states with the “broad power to ‘limit[] parental freedom,’ when it comes to medical treatment.”[23]  And since “level of generality is everything” when defining constitutional rights, the Sixth Circuit declined to recognize a parent’s right to reject a democratically elected law even when that law limited the child-rearing options available to the parent.[24]

Ultimately, assessing the rights implicated by the laws of Tennessee and Kentucky, the Sixth Circuit concluded that the federal judiciary should not curtail the “earnest and profound debate” around gender affirming care for minors.[25]  Certain medical procedures, especially those the court characterized as “new, evolving, and conflicting,” may therefore be reasonably proscribed by state legislatures.[26]

The Equal Protection Challenge

Laws, including those based on age or medical condition, are ordinarily valid “if they are rationally related to a legitimate state interest.”[27]  On the other hand, laws that classify based on protected characteristics like sex, as well as laws that violate the rights of a suspect class, receive heightened scrutiny.[28]  Notably, a court’s determination regarding the law’s afforded level of scrutiny often proves dispositive.[29]

According to the Sixth Circuit in L.W., the Tennessee and Kentucky laws banning some forms of gender affirming care for minors generally classify on the basis of age and the medical condition of gender dysphoria.[30]  Citing Dobbs v. Jackson Women’s Health Organization,[31] the court held that simply referencing a child’s biological sex in a law does not trigger heightened scrutiny.[32]  And while the Supreme Court in Bostock v. Clayton County held that firing an individual on the basis of transgender status is a form of sex discrimination,[33] the Sixth Circuit reasoned that Bostock’s application is limited solely to Title VII cases.[34]  Thus, while only females may use testosterone and only males may use estrogen as a transition treatment, laws that simply “restrict medical procedures unique to each sex” do not truly classify based on sex and therefore receive only rational basis scrutiny.[35]

Finally, the Sixth Circuit, in contrast with the Fourth and Ninth Circuits,[36] determined that transgender individuals do not constitute a quasi-suspect class.[37]  Rather, the court in L.W. noted that the Supreme Court has been exceedingly hesitant to recognize new constitutionally protected classes.[38]  Moreover, the Sixth Circuit reasoned that transgender individuals possess neither the immutable characteristics nor the political powerlessness that serve as bellwethers of suspect classes.[39]  Thus, due to the “unsettled, developing, in truth still experimental, nature” of gender affirming treatments for minors, the laws would not only receive but likely withstand rational basis review.[40]

Petitions for a Writ of Certiorari & Future Outlook

In response to the Sixth Circuit’s reversal of the preliminary injunctions, both the plaintiffs and the United States filed petitions for a writ of certiorari with the Supreme Court.[41]  If the Court decides to grant certiorari, the Court will be presented with the familiar choice to either expand protections under the Due Process and Equal Protection Clauses or permit the continuation of the debate now playing out in state legislatures around the country.[42]  As Justice Kavanaugh articulated in his dissent in Bostock, this decision in part boils down to one fundamental question: “Who decides?”[43]

The answer, of course, remains difficult to predict and largely depends upon the scope of the fundamental right as interpreted by the Court.  After all, the Court has acknowledged that the very purpose of our constitutional system is “to place [some rights] beyond the reach of majorities.”[44]  But regardless of whether the Court decides to grant certiorari this term, given the constitutional implications and political salience surrounding the issue, we certainly have not yet heard the final word from the federal judiciary on the availability of gender affirming treatments for minors.

[1] 83 F.4th 460 (6th Cir. 2023).

[2] Id. at 491.

[3] See Tenn. Code Ann. § 68-33-103 (2023); Ky. Rev. Stat. Ann. § 311.372(2)–(3) (2023).

[4] See Tenn. Code Ann. § 68-33-102 (2023); Ky. Rev. Stat. Ann. § 311.372(2) (2023).

[5] L.W., 83 F.4th at 469.

[6] Id. at 471.

[7] Id. at 467.

[8] See World Pro. Ass’n for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People 19–20 (7th ed. 2012).

[9] See Wylie C. Hembree et al., Endocrine Society Clinical Practice Guideline, 102 J. Clinical Endocrinology & Metabolism 3869, 3894 (2017).

[10] L.W., 83 F.4th at 493 (White, J., dissenting).

[11] The court highlighted the Food and Drug Administration’s hesitancy to approve hormone treatments for minors with gender dysphoria, as well as the trend among some European countries to walk back the availability of gender affirming care for minors, to call into question the existence of an expert consensus.  Id. at 478 (majority opinion).

[12] Id. at 477.

[13] Id. at 472.

[14] Id. at 481.

[15] Id. at 471.

[16] W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

[17] Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997).

[18] Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989).

[19] Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534 (1925); see also Meyer v. Nebraska, 262 U.S. 390, 400 (1923).

[20] L.W., 83 F.4th at 475.

[21] Id. at 473.

[22] Schall v. Martin, 467 U.S. 253, 265 (1984).

[23] L.W., 83 F.4th at 473 (citation omitted) (quoting Prince v. Massachusetts, 321 U.S. 158, 167 (1944)).

[24] Id. at 475.

[25] Id. at 474 (quoting Washington v. Glucksberg, 521 U.S. 702, 735 (1997)).

[26] Id. at 478.

[27] Id. at 479.

[28] See United States v. Virginia, 518 U.S. 515, 531–33 (1996); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 222 (1995).

[29] Alex Chemerinsky, Tears of Scrutiny, 57 Tulsa L. Rev. 341, 344 (2022).

[30] L.W., 83 F.4th at 480.

[31] 142 S. Ct. 2228 (2022).

[32] L.W., 83 F.4th at 481.

[33] 140 S. Ct. 1731, 1737 (2020).

[34] L.W., 83 F.4th at 484.

[35] Id.; see Dobbs, 142 S. Ct. at 2245 (declining to apply heightened scrutiny in part because laws regulating “medical procedure[s] that only one sex can undergo” do not constitute a sex-based classification).

[36] See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 610 (4th Cir. 2020); Karnoski v. Trump, 926 F.3d 1180, 1200–01 (9th Cir. 2019).

[37] L.W., 83 F.4th at 486.

[38] Id. (“The Supreme Court ‘has not recognized any new constitutionally protected classes in over four decades, and instead has repeatedly declined to do so.’” (quoting Ondo v. City of Cleveland, 795 F.3d 597, 609 (6th Cir. 2015))).

[39] Id. at 487.

[40] Id. at 488–89.

[41] See Petition for Writ of Certiorari, L.W. ex rel. Skrmetti, 83 F.4th 460 (No. 23-466); Petition for Writ of Certiorari, United States v. Skrmetti, 83 F.4th 460 (No. 23-477).

[42] Compare Obergefell v. Hodges, 576 U.S. 644, 664 (2015) (“When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”), with Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2243 (2022) (“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”).

[43] Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1822 (2020) (Kavanaugh, J., dissenting).

[44] W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).