Kentucky’s youth gender-affirming care ban to remain in effect for now, court rules
A federal appeals court has denied emergency relief to seven Kentucky transgender minors and their families who had asked for the state’s youth gender-affirming care ban to be temporarily blocked.
The appellate court’s decision was largely expected. In July, the same regional court denied injunctive relief to plaintiffs challenging a similar law in Tennessee. The decision restored the Volunteer State’s ban on gender-affirming health care, and in doing so, consolidated Kentucky’s and Tennessee’s cases into the same appeals process.
“Our decision is governed by four factors: likelihood of success on the merits, irreparable harm, the balance of harms, and the public interest,” a panel of three judges wrote on Monday in Kentucky’s case. “We recently balanced these factors in a case involving Tennessee’s ban on sex transition care for minors and held that they favored allowing Tennessee to enforce its law. That holding controls here.”
The 2-1 decision was written by Chief Judge Jeffrey Sutton and Judge Amul Thapar. Judge Helene White dissented. The Sixth Circuit ruling is preliminary. The court has said its expedited final ruling on a full appeal of the lower court’s ban is expected by Sept. 30.
Kentucky’s ban, which specifically challenges restrictions on hormone therapy and puberty blockers for minors with diagnosed gender dysphoria, was set to take effect in late June before it was blocked by a lower court judge. After the appellate court consolidated both states’ cases last month, the same Kentucky judge who granted injunctive relief overturned his earlier order on July 14, essentially saying his hands were tied.
That decision was a victory for Republican Attorney General Daniel Cameron who has repeatedly characterized the ban as one that “protects” Kentucky’s children from “mistreatment,” even “abuse.” All major U.S. medical associations disagree, saying this type of health care is “evidence-based.”
After Cameron was given the ability to enforce the ban for the first time, plaintiffs filed an emergency motion for relief roughly two weeks ago, asking the appellate court to block the ban because it caused “imminent irreparable harm.” Cameron, who is running for governor against incumbent Gov. Andy Beshear, urged the court not to block it.
“Nothing in the plaintiffs’ motion comes close to establishing a ‘clear showing’ that they are entitled to stay,” he wrote.
The appellate court on Monday agreed with Cameron.
“Plaintiffs bring the same Equal Protection and Due Process claims that, in (Tennessee case L.W. v. Skrmetti), we held were unlikely to succeed,” the majority wrote. “We decline to lift the district court’s stay.”
Attorneys from the American Civil Liberties Union of Kentucky and the National Center for Lesbian Rights representing Kentucky plaintiffs contested that, unlike Tennessee’s ban, Kentucky’s new law does not include explicitly include “continuum of care language.” Such a provision would allow health care providers to taper their patients’ dosage to minimize harm, rather than halting such care outright, they argue.
The Sixth Circuit majority conceded that as a valid point, but the difference of impact is not yet apparent, at least in the facts presented in Kentucky’s case.
“Plaintiffs argue that this changes the balance of harms because they suffer immediately the harm that Tennessee’s law allowed minors to postpone for months,” the court wrote. “Looking only at the text of the laws, plaintiffs have a point. But the facts presented to us in Skrmetti were no different from the facts here.”
White disagreed.
In her dissent, she wrote that Kentucky’s lower court “properly issued a preliminary injunction.” In Kentucky’s case even more so than Tennessee’s, “there is greater reason to let the preliminary injunction stand because, unlike the Tennessee statute in Skrmetti, Kentucky’s law does not provide a continuing care exception,” and “no grace period during which patients receiving care may continue treatment.”
It “seems obvious,” White wrote, “that there is a tremendous difference between a statute like Tennessee’s that allows flexibility regarding treatment decisions and time to explore alternatives, and one like Kentucky’s that forces doctors to either discontinue treatment immediately, or risk losing their license if a stranger to the doctor-patient relationship second-guesses the doctor’s determination or documentation that interrupting treatment would harm the minor.”
White said she believes both states’ plaintiffs “are likely to succeed on the merits because Kentucky’s law discriminates on the basis of sex . . . For these reasons, I dissent from the majority’s denial of the plaintiffs’ motion.”
This story was originally published August 1, 2023 at 9:18 AM.
