The Kentucky case
On June 28, 2023, the U.S. District Court for the Western District of Kentucky entered a preliminary injunction barring the state from enforcing the provisions of Kentucky Senate Bill 150 (SB 150). SB 150 precludes a health care provider from, inter alia, prescribing or administering puberty blockers or hormones to minors “for the purpose of attempting to alter the appearance of, or to validate a minor’s perception of, the minor’s sex, if that appearance or perception is inconsistent with the minor’s sex.” Doe v. Thornbury, No. 3:23-cv-230-DJH, docket entry 61, slip op. at 3 (W.D. Ky.). The plaintiffs, seven transgender minors and their parents, asserted that SB 150 violated the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.
In enjoining the law, the court found that “the treatments barred by SB 150 are medically appropriate and necessary for some transgender children under the evidence-based standard of care accepted by all major medical organizations in the United States.” The court held that the plaintiffs were likely to succeed in showing that SB 150 discriminates on the basis of sex and fails the heightened scrutiny that applied under the equal protection clause. Further, the court held that the parent plaintiffs had a fundamental right under the due process clause to choose for their children the gender-affirming care that SB 150 prohibits, and that the restrictions under SB 150 were not designed to serve government interests and did not use the least restrictive means to achieve the law’s purpose, therefore failing strict scrutiny under the due process clause. Finally, the court rejected the state’s request that the injunction be limited to the plaintiffs who are already taking the drugs in question, instead enjoining the state from enforcing, threatening to enforce, or otherwise requiring compliance with the sections of SB 150 at issue.
The Tennessee case
On the same day, the U.S. District Court for the Middle District of Tennessee issued a preliminary injunction prohibiting the state from enforcing certain provisions of Tennessee Senate Bill 1 (SB 1). This bill, which was to become effective on July 1, 2023, bars health care providers from providing medical treatment to a minor if the purpose of the procedure is to “enable that minor to live with a gender identity that is inconsistent with that minor’s sex at birth.” L.W v. Skrmetti, No. 3:23-cv-00376, docket entry 167, slip op. at 2 (M.D. Tenn.). As in Doe v. Thornbury, the lawsuit was filed by transgender minors and their parents, along with a physician who treats patients for gender dysphoria. The plaintiffs also alleged that SB 1 violates both the Due Process Clause and the Equal Protection Clause.
The Tennessee court found that the plaintiffs lacked standing to challenge a ban on gender-affirming surgery in SB 1 because none of the minors expressed a desire for, or planned to receive, surgery to treat gender dysphoria. But with regard to SB 1’s ban on puberty blockers and hormones, the court found that the plaintiffs were likely to succeed on the merits of both the Due Process and Equal Protection arguments on grounds very similar to those stated in Doe v. Thornbury. The court concluded that the medical evidence did not support the state’s view that the gender-affirming care banned by SB 1 was harmful to minors, and therefore SB 1 was not supported by an important state interest. The court granted a state-wide injunction against the law’s ban on puberty blockers and hormones. In the opinion, the court acknowledged the controversial issues being addressed, noting that while it must “tread carefully” in enjoining enforcement of a law that was enacted through a democratic process, the legislative process “is not without constraints.” Immediately after this order was issued, the state sought an emergency stay and appealed to the Sixth Circuit.
The authors are continuing to monitor these cases and other developments in this fast-paced area of law. Please contact them with any questions.
Client Alert 2023-149
