L. W. v. Skrmetti, No. 23-5600 (6th Cir. 2023)
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Tennessee enacted the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity, citing concerns that gender dysphoria treatments “can lead to the minor becoming irreversibly sterile, having increased risk of disease and illness, or suffering adverse and sometimes fatal psychological consequences” while less risky, non-irreversible treatments remain available. Prohibited procedures include surgically removing, modifying, or entering into tissues, cavities, or organs and prescribing or dispensing any puberty blocker or hormone with exceptions for treating congenital defects, precocious puberty, disease, physical injury, and continuation of ongoing treatment. It provides for professional discipline of healthcare providers and creates a private right of action.
The district court entered a preliminary injunction, finding that the challengers lacked standing to contest the surgery ban but that the ban on hormones and puberty blockers infringes the parents’ “fundamental right” to direct their children’s medical care, improperly discriminates on the basis of sex, that transgender persons constitute a quasi-suspect class, and that the state could not satisfy the necessary justifications.
The Sixth Circuit stayed the injunction, finding that Tennessee is likely to succeed on appeal. The district court erred in its facial invalidation of the law, as opposed to an as-applied invalidation. “Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field.” A right to new medical treatments is not “deeply rooted" in history and traditions. Tennessee could rationally exercise caution before permitting irreversible medical treatments of children.
The court issued a subsequent related opinion or order on September 28, 2023.
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