Three federal appellate courts have split on the appropriate level of review to apply to laws that prohibit gender-affirming care to transgender minors. In Tucker v. Alabama, the U.S. Court of Appeals for the Eleventh Circuit applied a rational basis review to vacate an injunction against a state law ban. The U.S. Court of Appeals for the Sixth Circuit applied the same standard in Williams v. Skrmetti to allow a Tennessee ban to take effect. But in Brandt v. Rutledge, the U.S. Court of Appeals for the Eighth Circuit applied intermediate scrutiny and affirmed an injunction that enjoined enforcement of an Arkansas law pending litigation. ABA Litigation Section leaders believe the Eighth Circuit applied the correct level of scrutiny and offer criticisms of the other appellate decisions.
Young people who feel that their biological sex does not correspond with their gender identity have sought treatment from doctors. Those doctors have prescribed two kinds of drugs to their patients. Some have prescribed “puberty blockers” that delay the onset of the secondary sex characteristics that cause the patient distress. Others have prescribed sex hormones for the gender the patient is comfortable expressing.
Between 2021 and 2023, several states passed laws that make it illegal for doctors to prescribe these drugs to minors. Tennessee passed such a law in 2023, stating that it sought to prevent long-term physical and emotional consequences from this treatment. It cited the lack of supportive “high-quality, long-term medical studies” that demonstrate the treatment’s safety. And it claimed that the treatment poses an “increased risk of disease and illness, or suffering adverse and sometimes fatal psychological consequences.” Arkansas passed a similar law in 2021, as did Alabama in 2022 and Kentucky in 2023.
In the cases that led to the appellate decisions, transgender minors and their families brought lawsuits challenging those laws. They argued that the laws infringed on their constitutional rights. Each of the four federal district courts that heard their cases granted the plaintiffs preliminary injunctions, preventing the laws from taking effect until the litigation concluded. Arkansas appealed, but the appeals court ruled against it. Alabama and Tennessee, however, successfully appealed the injunctions. The Sixth Circuit considered the appeal on the merits a second time, consolidating the Tennessee case with the Kentucky challenge, and stood by its original decision to uphold the bans.
A major issue in all the appeals concerned the challenge to the laws under the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs each argued that the laws at issue make the prescription of certain drugs illegal based on the sex of the patient. For example, they make the provision of testosterone illegal to female patients but not male patients. Accordingly, they argued, the laws discriminate based on sex and so an intermediate level of scrutiny applies. Following the precedent set forth by the U.S. Supreme Court in United States v. Virginia, only an “exceedingly persuasive justification” can overcome that level of scrutiny.
The Eighth Circuit agreed that heightened scrutiny applied. It decided that the district court did not err in finding that Arkansas failed to establish a sufficient basis for its law. The court heard competing expert opinions about whether hormone therapy was a potentially dangerous experimental treatment from which the state should protect minors. The appellate court held that there was a sufficient basis for the lower court to conclude that the medical treatment banned by the law “conforms with the recognized standard of care for adolescent gender dysphoria.” Accordingly, it held that the law failed to pass intermediate scrutiny and thus violated the Equal Protection Clause.
The Sixth and Eleventh Circuits disagreed that intermediate scrutiny applied. They reasoned that, while estrogen was banned for male patients and testosterone was banned for female patients, all patients were banned from obtaining hormones that could change their gender expression. They acknowledged that the statutes made references to sex when outlawing specific conduct, but they held that those references were necessary to describe which hormones were prohibited for each sex’s gender affirmation and did not reflect disparate treatment between the two sexes. A dissenting judge in the Sixth Circuit rejected this argument, however, for the same reason the Eighth Circuit set forth in Brandt—the law made specific medicines illegal based solely on the sex of the patient.
Both the Sixth and Eleventh Circuits distinguished Bostock v. Clayton County, the U.S. Supreme Court case that held that Title VII of the Civil Rights Act of 1964 prohibits discrimination against transgender people. The courts noted that decision concerned the interpretation of the language of a specific statute and not the language of the Fourteenth Amendment. The Williams dissent, however, acknowledged that the same logic applied in that case as it did in Bostock: if the same conduct is illegal when applied to a plaintiff of one sex but legal for a plaintiff of another, then there is sex discrimination.
Those two appellate courts next found that the laws at issue satisfied the rational basis test. As the Tucker court noted, a law passes that test if it is “rationally related to a legitimate government interest.” Both courts held that the laws at issue were rationally related to the states’ legitimate interest in protecting the safety of minors. And while the test did not require “evidence or empirical data,” the Tucker court held that Alabama had provided “undisputed” evidence in the record that “the medications at issue present some risks.” Similarly, the Williams court held that a state could “rationally take the side of caution before permitting irreversible medical treatments of its children.” Having found a rational basis for the laws, the courts held that they did not violate the Equal Protection Clause.
The United States intervened in Tucker and Williams, arguing that laws against gender-affirming care discriminated against transgender persons “who constitute at least a quasi-suspect class.” Accordingly, the government argued, the states needed to satisfy a higher burden than proffering a rational basis before meeting the requirements of the Equal Protection Clause of the Fourteenth Amendment.
Neither the Sixth nor the Eleventh Circuit agreed that transgender people constitute a suspect class. The Williams court noted that the U.S. Supreme Court has not recognized a new suspect class protected from discrimination by the Constitution in the 40 years since it recognized gender and illegitimacy as such classes in City of Cleburne v. Cleburne Living Center, even when asked to do so in cases involving age, mental disability, and homosexuality. Still, the Williams court acknowledged that Brandt, as well as the U.S. Court of Appeals for the Fourth Circuit in Grimm v. Gloucester County School Board, have both held that discrimination against transgender people triggers heightened scrutiny.
Both the Tucker and Williams courts considered the argument that the laws only prohibited conduct that involves transgender people and, thus, may illegally target a vulnerable group for discrimination. And both cited Dobbs v. Jackson Women’s Health Organization in response, noting that prohibiting abortions did not violate the Equal Protection Clause even though the prohibition almost entirely applies to women. Instead, according to the rule set forth in that case as articulated in Tucker, a law that applies only to a specific group of people does not trigger heightened scrutiny unless it is a “mere pretext” for “invidious discrimination.” Neither court held that the laws at issue reflected such a pretext, so they rejected the application of heightened scrutiny.
The plaintiffs in Tucker and Williams also argued that state law bans on gender-affirming care violate the Due Process Clause of the Fourteenth Amendment. The district court in Tucker had found that this clause grants parents a right to “make decisions concerning the care, custody, and control of one’s children.” And it held that this right extended to parental decisions to obtain gender-affirming care for their children.
The Tucker and Williams appeals courts began their analysis of this claim by invoking the standard the U.S. Supreme Court set forth in Dobbs. Under that standard, the Tucker court wrote, the only substantive due process rights are those “deeply rooted in our history and tradition” and “essential to our Nation’s scheme of ordered liberty.” Both appellate courts held that puberty blockers and hormone therapies have been around only since the late 20th century and so do not have the same historical basis as a substantive due process right. And they both distinguished the right to make parental decisions to discrete subjects, such as “education, religion, and custody.”
In declining to recognize a substantive due process right, the Williams court noted the ongoing debate in state legislatures about gender-affirming care. Many state legislatures recently criminalized it, while others have passed laws protecting it. The court noted its reluctance to decide an issue that the democratic process was in the process of debating without more clear direction from the Constitution.
The decision to apply the rational basis test in the Sixth and Eleventh Circuits was important, notes Cassandra Burke Robertson, Cleveland, OH, cochair of the Appellate Litigation Subcommittee of the Litigation Section’s Civil Rights Litigation Committee. “I think it’s the clearest case that I’ve seen to demonstrate how important levels of scrutiny are. If rational basis applies, then the state statute likely survives the constitutional challenge. If heightened scrutiny applies, then the state statute likely does not survive the constitutional challenge,” observes Burke Robertson.
The choice between these two standards, Burke Robertson believes, arises from “the underlying framing” of the question presented. If the question is whether the state may ban a particular hormone for a particular patient, she notes, that supports the claim that the statute discriminates by sex. But if the court considers the question to be whether a minor “patient’s gender dysphoria can be treated with hormones,” then Burke Robertson notes that the court could apply rational basis review because it may view the statute as discriminating based on age.
Section Leaders agree with the reasoning set forth by the Eighth Circuit. “To say estrogen is banned for males and testosterone banned for females is to say we’re not looking at this the same for men and women,” observes Helen E. Casale, Plymouth Meeting, PA, former cochair of the Section’s LGBT Law & Litigator Committee. She adds that the courts’ summary of these laws as gender neutral because they ban gender-affirming care for all minors is merely a “convenient way to get to the answer they wanted.”
The Sixth and Eleventh Circuits did not just apply the wrong standard, but they also applied too narrow a view of parental rights, argues Casale. “Holding that the right to parental decisions is only in certain discrete categories that don’t include medical decisions seems really odd to me as a family lawyer.” This is especially true because parents “aren’t making these decisions without the benefit of medical advice and expertise,” she elaborates. This view, she observes, may be a result of the Dobbs decision. The Sixth and Eleventh Circuits’ citations to that case “is not surprising at all,” she states. And because of it, “we’re not looking at the Fourteenth Amendment the same way as we did before.”
The courts also differed in how they considered the testimony of expert witnesses on appeal, offers Rebecca Sha, New Orleans, LA, a cochair of the Section’s Minority Trial Lawyer Committee. “The Eighth Circuit applied the proper deference to the district court’s factual weighing of expert testimony and evidence in finding that the medical treatment conforms with the recognized standard of care, while recognizing that there were some (but few and outlier) sources questioning that factual determination,” she explains. “The Eleventh Circuit instead focused on the fact that there was some support that the medical treatment may have risks, but without providing the proper deference to the district court’s factual determination concerning the issue,” she adds.
Neither the Sixth nor Eleventh Circuit “delved deeply into the First Amendment challenges,” opines Burke Robertson. “In my mind, that would have presented a preferable path and would have been less vulnerable to differences in issue-framing. Doctors have a First Amendment right to advise patients consistent with the medical standard of care and to prescribe federally approved medication when the doctor believes that it would benefit the patient,” Burke Robertson urges.
