On April 26, the US Department of Justice intervened as co-plaintiff in a lawsuit filed in federal court in Nashville, Tennessee, a week earlier by the ACLU and Lambda Legal, challenging the constitutionality of SB 1, a recently-enacted Tennessee law that prohibits gender-affirming care for minors. Both lawsuits ask the court to block the law from going into effect pending an ultimate decision on the merits. The case has been assigned to US District Judge Eli J. Richardson, who was appointed to the court by President Donald J. Trump and whose nomination was narrowly approved by the Republican-controlled Senate in 2018 over the opposition of Democrats in the Judiciary Committee and the full Senate.
The defendants include Tennessee Attorney General Jonathan Skrmetti; the Tennessee Department of Health and its commissioner, Ralph Alvarado; the Tennessee Board of Medical Examiners and its president, Melanie Blake, and its vice president, Stephen Lloyd, as well as all the members of the board; and Logan Grant, executive director of the Tennessee Health Facilities Commission.
SB 1 is part of a wave of bills and laws pending or enacted in several dozen state legislatures controlled by Republicans, purporting to find that minors are endangered in particular by being administered drugs to block puberty and ultimately transition to a body consistent with the child’s felt gender identity, different from the sex indicated on their birth certificate. Proponents of these bills argue that such treatments are “experimental,” not medically necessary, and harmful, asserting that the state needs to protect these children from their parents — whose authorization for the treatments is required by every state’s medical ethical code — and their doctors, who are bound by professional ethical codes to do no harm to patients.
In the ACLU-Lambda case, the plaintiffs are three transgender youths and their parents and a doctor who provides gender-affirming care to minors and joins the case on behalf of herself and her patients.
The ACLU-Lambda complaint argues that the law violates the Equal Protection Clause of the 14th Amendment by denying essential medical care to these children based on their sex and gender identity, and violates the Due Process Clause by interfering with the right of their parents to direct their upbringing and authorize medical care. The doctor’s claim is derivative of the interest of her patients in receiving appropriate medical care for a serious medical condition: gender dysphoria.
Many federal courts have found that gender dysphoria is a serious medical condition, as a result of which, for example, state Medicaid programs cannot exclude it from coverage, and costs incurred by patients in paying for such coverage can be deductible as medical expenses under the federal Internal Revenue Code. Furthermore, many courts have concluded, based on the positions taking by the World Professional Association for Transgender Health (WPATH), the Endocrine Society, and the American Psychiatric Association (APA), that gender-affirming care is “necessary” for those minors with severe gender dysphoria.
Such treatments have been received by thousands of patients without significant adverse effects, belying the claims of proponents of laws such as SB 1 that the treatments are “experimental” and “harmful.” In addition, in the small proportion of cases in which patients change their mind about transition, cessation of puberty blockers will allow for delayed but otherwise normal progress of puberty. For most minors, the main issue is availability of puberty blockers, since hormone therapy would usually not be started until the patient is 16 or older. Although SB 1 and many similar laws also ban surgical alteration, the WPATH standards of care observed by most providers of gender-affirming care reserve surgical alteration of genitals until at least age 18. Although Tennessee’s law only concerns treatment of minors, some state legislative procedures would go further and restrict gender-affirming care for adults as well.
Under Supreme Court precedents, discrimination by a state because of sex subjects a challenged law to a presumption of unconstitutionality using the “heightened scrutiny” test, under which the state has the burden to show that the challenged law substantially advances an important state interest. Supreme Court precedents have also placed the burden on states to justify interfering with the fundamental rights of parents concerning important decisions about their minor children.
The ACLU-Lambda complaint also claims that the law violates Section 1557 of the Affordable Care Act (ACA), which forbids health care institutions and providers that receive federal funding from discriminating in the provision and financing of care on the basis of sex. Many courts have ruled in the past few years that this anti-discrimination provision includes discrimination because of gender identity or expression, following the reasoning of the Supreme Court in its 2020 decision of Bostock v. Clayton County. Also, invoking the concept of federal preemption of state law based on the Supremacy Clause of the US Constitution, the ACLU-Lambda complaint argues that Section 1557 preempts and supersedes the Tennessee ban.
The Justice Department’s complaint is more narrowly focused, grounding its claim solely on the 14th Amendment Equal Protection Clause. “This lawsuit challenges a state statute that denies necessary medical care to children based solely on who they are,” declares the government. “All people, including transgender youth, deserve to be treated with dignity and respect. And the Fourteenth Amendment demands that Tennessee not ‘deny to any person within its jurisdiction the equal protection of the laws.’”
Unlike the ACLU-Lambda complaint, the federal complaint does not raise the due process rights of parents or derivative rights of health care providers, and does not invoke the ACA’s non-discrimination provision, even though Biden administration spokespeople have in the past commented that the ACA’s anti-discrimination provision should take priority over conflicting state laws.
The first step in litigation will be to convince Judge Richardson to exercise discretion to award temporary relief to the plaintiffs so that minors in Tennessee can continue to receive gender-affirming care while the case is pending. Under SB 1, doctors have a one-year period to “wind down” provision of puberty blockers or hormones to transgender patients who have already been receiving treatment before passage of the law. Otherwise, they are forbidden to start medical treatment with patients who have not already been receiving it. Doctors and parents can be sued for providing the forbidden care, and doctors also face threatened loss of their licenses to practice.
If the judge denies a request for interim relief, his denial could be appealed to the US Court of Appeals for the Sixth Circuit and, ultimately, to the Supreme Court.
In addition to attorneys from the ACLU and Lambda Legal, pro bono attorneys from Akin Gump Strauss Hauer & Feld, LLP, are representing the plaintiffs in the private action. The Civil Division of the Justice Department and the US Attorney’s Office in Tennessee represent the federal government in this case.
