Appeals court rules law banning gender-affirming care for minors can stay in effect as lawsuit against it moves through lower court

By Heather Close Published October 2, 2023 FEATURED, HEALTH POLICY, YOUR HEALTH

By Melissa Patrick
Kentucky Health News

A panel of the 6th Circuit U.S. Court of Appeals ruled 2-1 Thursday that Kentucky’s ban on gender-affirming care for transgender minors will stay in place while a lawsuit against it moves through a lower court.

The ruling was in response to an injunction request against parts of 2023 Senate Bill 150, filed by the National Center for Lesbian Rights and the American Civil Liberties Union of Kentucky on behalf of seven Kentucky minors and their parents seeking medically necessary care for transgender youth in Kentucky.

The Republican-controlled legislature enacted SB 150 earlier this year over Democratic Gov. Andy Beshear’s veto. Among other things, the bill bans health-care providers in Kentucky from performing gender-related surgeries on minors. It also bans providers from prescribing drugs that delay, stop or alter puberty.

In the same ruling, the appeals-court panel also upheld a similar law in Tennessee. The panel heard oral arguments in the cases Sept. 1.

In the majority opinion, Chief Judge Jeffrey Sutton wrote: “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. . . . 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.”

In her dissenting opinion, Judge Helene White said, “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.”

She concluded, “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.”

Attorney General Daniel Cameron claimed victory in what he called “his fight to protect Kentucky children from experimental sex-change treatments.”

“These gender interventions, billed as medical care, cause permanent harm to vulnerable children and their health,” Cameron said in a press release. “Despite full-throated denials by Gov. Beshear and his far-left activists, our children would still be under attack without SB 150. Andy Beshear won’t protect our kids, but I will, and I am proud to carry the mantle for this important law.”

The ACLU called the ruling a “temporary setback.”

Corey Shapiro, legal director for the ACLU of Kentucky, said in a statement, “The majority ignored the extensive evidence from the actual medical experts and the trial court who all agreed that this care is medically necessary, effective, and appropriate.”

An ACLU spokesperson told Sarah Ladd of the Kentucky Lantern that the group will review the opinion and look at whether to seek relief from the entire 6th Circuit U.S. Court of Appeals or the U.S. Supreme Court.