Reed Smith Client Alerts

Two rulings this week add to the litigation hotbed over the enforceability of laws banning gender-affirming care for minors. Federal courts in Kentucky and Tennessee have issued preliminary injunctions to block such bans on the grounds they violate minors’ constitutional rights of equal protection and due process. While both rulings are subject to further review by the courts as to whether to permanently enjoin these laws, the federal courts’ decisions follow the direction of most courts in determining such bans to be unconstitutional.

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.