CINCINNATI (CN) — Two groups of transgender children and their parents argued Friday that federal judges in Kentucky and Tennessee got it right when they blocked state governments from enforcing bans on hormone treatments and puberty blockers for minors.
Senate Bill 150 and Senate Bill 1, part of sweeping health care legislation, were enshrined into law in March 2023 in Kentucky and Tennessee, respectively. They ban certain medical procedures that would "enable a minor to identify with, or live as, a purported identity inconsistent with the minor's sex."
Lawsuits from families with transgender children followed swiftly in each state, and ultimately two federal judges granted the plaintiffs' preliminary injunction motions.
In Kentucky, U.S. District Judge David Hale's June ruling deemed the families likely to prevail on their equal protection claims and rejected the commonwealth's claim that SB 150 would "protect vulnerable groups" and the "integrity and ethics of the medical profession."
Hale, an appointee of Barack Obama, emphasized the emotional toll of the law on the families, who would either be denied treatment or forced to move out of state to receive the desired care.
U.S. District Judge Eli Richardson, a Donald Trump appointee, came to the same conclusion in Tennessee. He admitted his opinion would likely create friction in the Volunteer State.
"The court realizes that today's decision will likely stoke the already controversial fire regarding the rights of transgender individuals in American society on the one hand, and the countervailing power of states to control certain activities within their borders and to use that power to protect minors," he said.
The cases were briefed to the appeals court on an expedited schedule and arguments were held remotely on the eve of Labor Day weekend.
Attorney Clark Hildabrand, Deputy Chief of Staff and Senior Counsel for the Office of the Tennessee Attorney General, argued on behalf of the Volunteer State and told the court SB 1 was passed to stop treatments "with unproven benefits but lifelong harms."
Chief U.S. Circuit Judge Jeffrey Sutton, an appointee of George W. Bush, pushed back and emphasized the factual findings in both district court cases.
"Both courts said these are not experimental medical treatments," he told the attorney. "Shouldn't we respect that?"
Hildabrand called the findings "clearly erroneous" and pointed out when hormone treatments began in the late 1990s, none of the plaintiffs would have been eligible to receive them.
"We should defer to the legislative findings and the legislature's judgment," he said.
Kentucky Solicitor General Matthew Kuhn made similar comments in the second case argued Friday afternoon and said the type of regulation at issue is "better served by a committee room in Frankfort" than a courtroom.
Attorney Chase Strangio, deputy director for transgender justice at the American Civil Liberties Union, told the panel strict scrutiny must be applied to SB 1 in Tennessee because it invokes a sex-based classification.
Judge Sutton expressed trepidation at a court being required to determine when certain procedures could be made available to transgender children.
"[Heightened scrutiny] puts judges in this remarkable line-drawing scenario," he said. "I have no idea how to make that decision."
Attorney Stephanie Schuster of the Washington firm Morgan, Lewis, and Bockius echoed Strangio's sentiment when she argued against Kentucky's SB 150.
"You have to know the patient's sex to know whether treatments are banned or allowed," she told the court. "The statute expressly draws a line based on sex."
Sutton, who spoke at length throughout both sets of arguments and is clearly conflicted about the ultimate ruling, saw little way around mentioning sex in the legislation.
"It's not like they're making the disease [gender dysphoria] up," he told Schuster. "It's quite fair to use the word sex in describing the condition."
Schuster pushed backed and pointed out the words "gender dysphoria" do not appear in the law.
"[The bans are part of legislation] targeting trans youth in many ways, not just regulating medical treatment," she said.
Sutton remained skeptical of the need for courts to involve themselves in the legislation.
"They're not banning any of these procedures once [the patients] hit 18," he said. "I find that strange to call that anything requiring heightened review. One has to come to grips with the broader picture."
Both sets of families told the court the formative years before a transgender minor turns 18 are crucial to allow them to develop into a healthy adult, and emphasized the bans would stymie their development.
"Withholding treatment is extraordinarily harmful to these children," Schuster said.
Sutton admitted the families' best argument centers on the developmental years lost to the bans, but said he saw "compassion" on both sides of the case.
U.S. Circuit Judge Amul Thapar asked about the states' claims regarding European countries who have scaled back their promotion of treatments for transgender children.
"None of the European countries are banning these procedures in the way Kentucky is," Schuster told the Trump appointee. "They're saying, 'We have to use caution.'"
In his rebuttal, Kuhn seized on Sutton's comments about compassion as he concluded his argument.
"This is about protecting our children ... [and] it is a compassion measure," the commonwealth's attorney said. "[The legislature] heard from both sides, they heard from parents, they heard from children."
Senior U.S. Circuit Judge Helene White, another George W. Bush appointee, rounded out the panel.
Attorney Barbara Schwabauer argued on behalf of the United States government in the Tennessee case after it intervened on behalf of the families.
The court did not set a timetable for its decision.
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