Sixth Circuit Reverses Preliminary Injunctions Blocking Tennessee and Kentucky Restrictions on Gender-Affirming Care

Practical Law Legal Update w-041-3437 (Approx. 6 pages)

Sixth Circuit Reverses Preliminary Injunctions Blocking Tennessee and Kentucky Restrictions on Gender-Affirming Care

by Practical Law Employee Benefits & Executive Compensation

Tennessee and Kentucky Laws

This litigation involves Tennessee and Kentucky laws regulating medical treatments for minor individuals experiencing gender dysphoria (see Practice Note, Health Care Provider Considerations for Gender-Affirming Care).

Under the Tennessee law, health providers generally may not administer (or offer to administer) medical procedures to a minor that would enable the minor to have an identity inconsistent with the individual's sex (Tenn. Code Ann. § 68-33-101). Besides barring certain surgical procedures, the Tennessee law prohibits providers from dispensing puberty blockers or hormones (subject to limited exceptions). The law is enforceable by Tennessee's Attorney General and makes violating health providers subject to professional discipline.

Transgender minors, their parents, and a health provider challenged the Tennessee law, asserting that it violated the US Constitution's due process and equal protection clauses. The plaintiffs sought a preliminary injunction to prevent the Tennessee law from becoming effective on July 1, 2023. A district court granted the preliminary injunction in part, finding that:

As to due process, the Tennessee law impeded the fundamental right of the individuals' parents to manage the medical care of their minor children.
Regarding equal protection:
- the Tennessee law impermissibly discriminated against transgender individuals (a quasi-suspect class) on the basis of sex; and
- Tennessee failed to meet the applicable heightened scrutiny for this type of law.

The disputed Kentucky law, meanwhile, prohibits health providers (subject to exceptions) from:

Offering certain types of care that alter the appearance of (or confirm a minor's perception of) the minor's sex, if the appearance or perception are incongruous with the minor's sex.
Performing "sterilizing" surgeries on minor children.
Dispensing drugs to delay or block "normal puberty" or increase an individual's hormone levels beyond what would be expected for the individual's age and sex.

(Ky. Rev. Stat. Ann. 311.372(2).)

Providers who violate the Kentucky law's prohibitions may have their licenses revoked.

Transgender minors and their parents brought suit, alleging that the Kentucky law violated their due process and equal protection protections under the US Constitution. The Kentucky plaintiffs challenged the law's prohibitions on puberty blockers and hormone therapy, but not its provisions involving surgical procedures. They sought a preliminary injunction to prevent the Kentucky law from becoming effective on June 29, 2023.

In issuing a preliminary injunction of the challenged provisions, a district court concluded:

As to due process, that the Kentucky law impeded the right of parents to obtain medical treatment for their children.
As to equal protection, that the Kentucky law was discriminatory based on sex and could not meet the level of judicial scrutiny for this type of classification.

After concluding that the Kentucky law's provisions concerning drug and hormone therapy were facially unconstitutional, the district court issued a statewide injunction. The district court then granted the state's request for an initial stay of the injunction, which the Sixth Circuit declined to lift.

The Sixth Circuit consolidated the appeals of the district court rulings in Tennessee and Kentucky.

Due Process Analysis

Focusing on the first element of the test for granting a preliminary injunction, the Sixth Circuit concluded that the Tennessee and Kentucky plaintiffs were not likely to succeed on the merits of their claims (see Practice Note, Preliminary Injunctive Relief: Initial Considerations (Federal): Standard for Obtaining Preliminary Injunctive Relief). As a result, the Sixth Circuit reversed both preliminary injunctions.

Among other reasons, the Sixth Circuit observed that the states are currently involved in "thoughtful debate" on gender dysphoria treatments, with nearly 20 states having recently adopted laws similar to those in Tennessee and Kentucky. Other states, the court noted, have enacted laws that protect gender dysphoria treatments. Preventing these laws from going into effect, the court reasoned, would detrimentally prevent this legislative debate from playing out at the state level.

Plaintiffs Are Unlikely to Establish Due Process Violations

Regarding the plaintiffs' due process challenges, the Sixth Circuit declined to expand the concept of substantive due process to reach gender dysphoria treatments. The court observed that the US does not have a long tradition of preventing state governments from regulating the medical profession as to permissible treatments. Rather, the court noted, state governments have:

Historically exercised broad discretion in regulating individuals' health and welfare.
Been afforded a presumption of legislative authority concerning regulating health care for both adults and children.

The Sixth Circuit also reasoned that parents lack a constitutional right to obtain prohibited medical treatments for their children. That rule, the court noted, applies even to longstanding and nonexperimental treatments. This diminished the case for gender dysphoria treatments, which:

Have only been in use for a relatively short time.
Have not secured consensus in the medical community concerning the treatments' "cost-benefit tradeoffs."

For these and other reasons, the Sixth Circuit concluded that the Tennessee and Kentucky plaintiffs were unlikely to establish a due process violation.

Equal Protection Analysis

The Sixth Circuit also concluded that the Tennessee and Kentucky plaintiffs' equal protection challenge was unlikely to succeed on the merits. The court determined that the Tennessee and Kentucky laws generally treated similarly situated individuals alike—whether the laws were viewed as involving classifications based on age, medical condition, or sex. For example, regarding the classification of sex (which receives heightened scrutiny for equal protection purposes), the Sixth Circuit reasoned that both states' laws regulated sex-transition for all minors without regard to their sex. Such an "across-the-board" regulation, the court added, did not bear the hallmarks of sex discrimination. In the court's view, the availability of puberty blockers under the law was not based on "invidious sex discrimination" but on individuals' ages and the usefulness of treating gender dysphoria with the treatments at issue.

The Sixth Circuit added that the Supreme Court's 2020 Bostock ruling did not change this conclusion (Bostock v. Clayton County, 140 S. Ct. 1731 (2020)). In Bostock, the Supreme Court held that the prohibition on employment discrimination because of sex under Title VII of the Civil Rights Act of 1964 (Title VII) applies to gay and transgender individuals (see Article, August 2022 Re-Proposed Regulations Addressing Nondiscrimination in Health Programs and Activities Under the ACA (Section 1557): Impact of Supreme Court's Bostock Ruling on Sex Discrimination). The Sixth Circuit concluded that Bostock only applies to Title VII.

The Sixth Circuit also rejected the plaintiffs' assertion that the Tennessee and Kentucky laws violated the equal protection rights of a suspect class: transgender individuals. Under Supreme Court precedent, the Sixth Court reasoned, transgender status is not a suspect class. As a result, the disputed laws were subject to the deferential rational basis review (which—in the Sixth Circuit's view—the laws would likely pass).

After holding that the district courts' preliminary injunctions must be reversed, the Sixth Circuit remanded the cases for additional proceedings consistent with its decision.

The Department of Justice filed a petition on November 3, 2023, in which it asked the Supreme Court to review the case.

Practical Impact

Recent litigation and legislative/regulatory developments have made for a complicated landscape regarding health plans that cover—or exclude—treatments for gender dysphoria. There has been increasing litigation in recent years challenging health plan exclusions for gender dysphoria (particularly where minors are involved). The outcomes in these cases may vary depending on the court and, in some cases at least, where the litigation arises. In addition, several states—including Tennessee and Kentucky—have imposed significant restrictions on access to treatments for gender dysphoria in minors. Other states, meanwhile, have enacted laws to protect individuals who seek treatments for gender dysphoria.

Meanwhile, not all courts agree concerning whether Affordable Care Act (ACA) Section 1557 extends to claims of gender identity (for example, see Legal Updates, In Gender Dysphoria Litigation, Texas District Court Sets Aside HHS's Interpretation Under ACA Section 1557 and Title IX and District Court: Health Insurer Must Comply with ACA Section 1557 Nondiscrimination Rules Regarding Its Entire Portfolio). Proposed regulations under Section 1557 issued by the Biden administration in August 2022 would prohibit covered entities from imposing categorical coverage exclusions or limits on all health services related to gender transition or other gender-affirming care. However, those regulations are yet to be finalized.

For more information on Section 1557 compliance, see:

Sixth Circuit Reverses Preliminary Injunctions Blocking Tennessee and Kentucky Restrictions on Gender-Affirming Care | Practical Law