Sixth Circuit Reverses Grants Of Preliminary Injunctions In Gender Dysphoria Cases

• Jurisdiction: United States,Federal
• Law Firm: Squire Patton Boggs LLP
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Author: Mr Shams Hirji
• Published date: 02 October 2023

Yesterday evening, the Sixth Circuit issued a blockbuster decision in consolidated cases addressing the constitutionality of Tennessee's and Kentucky's laws limiting minors experiencing gender dysphoria from certain sex-transition treatments. Chief Judge Sutton wrote the majority opinion, which Judge Thapar joined. Judge White dissented. The majority and dissenting opinions cumulatively span over 70 pages.

Individuals who have gender dysphoria experience a "lack of alignment between their biological sex and perceived gender." Majority Op. at 4. The Tennessee and Kentucky laws are concerned with the types of medical procedures that healthcare providers might prescribe minors suffering from gender dysphoria. Under both States' laws, medical providers are generally banned from performing sex-transition surgeries for such minors. Medical providers likewise cannot administer puberty-blocking hormones for such minors.

This decision is not the first that this Panel has issued in these cases. After the District Court in the Tennessee case issued a preliminary injunction against enforcement of the Tennessee law, Tennessee appealed and the Panel ' the same one that issued yesterday's decision ' stayed the injunction pending appeal. See L.W. ex rel. Williams v. Skrmetti, 73 F.4th 408 (6th Cir. 2023). Although the District Court in the Kentucky case likewise issued a preliminary injunction against enforcement of the Kentucky law, the District Court issued a stay of its decision and the Panel declined to lift it. See Doe 1 v. Thornbury, 75 F.4th 655, 656-57 (6th Cir. 2023) (per curiam). Like she did yesterday, Judge White dissented from both of the stay decisions. The stay decisions provided a window into the Sixth Circuit's thinking on the constitutional issues and strongly suggested that the Court was gearing up to reverse both preliminary injunctions (which the Court did yesterday). But yesterday's opinions expanded the Court's analysis from the stay stage by about 50 pages and, naturally, covered a lot more ground than those earlier decisions.

With that bit of procedural history out of the way, it's time to discuss what the opinions said. As I've been hinting, they said a lot. In a nutshell, the challengers levelled several constitutional arguments against the laws and in support of the preliminary injunctions entered in the cases. The Majority rejected each argument and concluded that the challengers had not shown they were likely to prevail on the merits. To be...