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U.S. appeals court considers whether to uphold a stay on Kentucky’s gender-affirming care ban

A gavel rests inside the court room of the 100th Air Refueling Wing base legal office at RAF Mildenhall, England, May 28, 2019.
Airman 1st Class Joseph Barron
Three U.S. appellate judges heard arguments on whether to reinstate a stay on Kentucky’s gender-affirming care ban for transgender youth

A U.S. Appeals court heard arguments Friday as advocates for transgender youth attempt to reinstall injunctions against Kentucky’s ban on gender-affirming hormone therapy. The judges said they would try to come to a decision “as quickly as possible.”

This story briefly mentions suicidal thoughts. If you or someone you know is struggling with thoughts of suicide, you can reach the National Suicide Prevention Lifeline by phone at 988, or online at https://988lifeline.org/.

If you’re looking for transgender peer support, you can reach the Transgender Wellness Coalition online at transwellnesscoalition.org. You can also contact the Trevor Project, which provides free, confidential counselors who specialize in helping LGBTQ+ youth.

In mid-July, U.S. District Judge David Halereversed courseon a temporary block he had issued a few weeks before that prevented part of Kentucky’s Senate Bill 150 from taking effect. The injunction would have remained in place until a lawsuit challenging the bill on constitutional grounds wended its way through the court system.

Hale paused the injunction after Attorney General Daniel Cameron requested a stay until the Sixth Circuit Court of Appeals could rule on whether to keep the injunction in place. Hale cited a ruling by the same appeals court which lifted an injunction against a similar ban on gender-affirming care in Tennessee.

The Kentucky and Tennessee lawsuits have now been combined and fast-tracked in the court of appeals. On Friday, Stephanie Schuster, the lawyer who argued for the ACLU of Kentucky, said the treatments SB 150 banned are “medically necessary for [transgender minors] to live and develop into functioning happy adults.”

The three judges deciding the case tried to get to the heart of the issue to determine whether the case is likely to succeed. Schuster argued SB150 violated the equal protection clause of the U.S. Constitution, saying the bill explicitly targets transgender children on the basis of sex.

“The treatment ban [doesn’t] just happen to regulate a single medical procedure that has a disparate impact on a particular identified group,” Schuster said. “The treatment ban is part of a broader bill, SB 150, that makes clear that it is targeting transgender youth in many respects, not just regulating a medical procedure.”

SB 150 also limits discussion of gender identity and sexuality in schools, bans use of bathrooms that align with a transgender student's gender and prevents schools from recommending or requiring teachers use the pronouns that match a student’s gender.

Lawyers for Kentucky and Tennessee argued that the states have the “sovereign prerogative” to legislate around any treatments they deem too risky.

“The fact that there is disagreement about the effectiveness and risks of the treatments at issue does not empower the district court to decide who's right on the science,” said Kentucky’s Solicitor General Matt Kuhn. “That disagreement is reason enough to respect Kentucky's sovereign decision to pass Senate Bill 150.”

But the circuit court judges questioned whether there is actually disagreement among medical authorities over the effectiveness of hormone therapy treatments for transgender youth. Many major medical associations say gender-affirming hormone therapy should remain accessible to transgender youth. They also say such treatments are only provided after consultations between the child, their parents and their health care providers.

Kuhn pointed to medical associations in Sweden and the United Kingdom — neither of which have gone so far as to ban gender-affirming care for transgender kids — which have called for additional caution in administering the treatments.

“We can exercise caution in protecting our children, and we can make a different decision than, for example, California does. That is a feature, not a bug, of our federal system,” Kuhn said.

Because the injunction was stayed, children who were receiving hormone therapy in Kentucky were forced to immediately detransition or seek care outside of the state. Three Kentucky doctors told LPM News that discontinuing such treatments could endanger those patients’ mental health, with one saying it would cause them to experience distressing changes to their bodies.

National surveys and research show that young trans and nonbinary people experience suicidal thoughts at especially high rates, but that trans people who've received gender-affirming care have seen reductions in suicidal thoughts and depression.

According to the American Psychological Association, legislation that target access to health care, sports participation and school policies for transgender youth has caused “heightened levels of anxiety, depression, and suicide risk among the transgender community.”

Judge Jeffrey Sutton, one of the three appellate judges, said they will try to have a decision on whether to uphold stays on the bans in Kentucky and Tennessee “as quickly as possible.”

Sylvia is the Capitol reporter for Kentucky Public Radio, a collaboration including Louisville Public Media, WEKU-Richmond, WKU Public Radio and WKMS-Murray. Email her at sgoodman@lpm.org.