Appeals court keeps Kentucky’s ban on gender-affirming for minors in effect
A new federal ruling ensures gender-affirming hormone therapy will remain inaccessible to transgender minors in Kentucky while a lawsuit over it continues.
A wide range of major medical associations agree: Trans youth should be able to access gender-affirming hormone therapy, including estrogen or testosterone treatments and medication that delays puberty.
However, the Republican-led Kentucky Legislature recently prohibited those treatments for trans people under 18 years old. Other states have passed similar restrictions.
Earlier court decisions allowed Kentucky’s ban, known as Senate Bill 150, to take effect in July and to remain in effect since then.
Thursday night’s 2-1 ruling by the 6th U.S. Circuit Court of Appeals officially keeps the ban in place until the lawsuit over it is resolved.
Specifically, the court reversed an injunction granted in June by U.S. District Judge David Hale. Hale himself put a pause on that in July after the 6th Circuit ruled against a similar request to block a Tennessee law. In his decision, Hale said the 6th Circuit was likely to rule against the Kentucky plaintiffs.
That’s exactly what the court ended up doing Thursday night.
The plaintiffs in the Kentucky lawsuit include several trans kids and their families.
In the ruling, the 6th Circuit did not find that the plaintiffs were likely to succeed on the merits of the case. That’s a key consideration for courts when deciding whether to grant a preliminary injunction that would block a law until a lawsuit against it is decided.
The Kentucky case and other lawsuits against gender-affirming care bans say these restrictions are unconstitutional. Specifically, they claim such laws run afoul of the Fourteenth Amendment of the U.S. Constitution, which says states cannot deny people equal protection under the law or deprive them of liberty without due process.
The Kentucky plaintiffs argue Senate Bill 150 violates parents’ constitutionally protected right to make decisions about their children’s care. They also argue the ban is discriminatory.
Thursday’s appeals court ruling is critical of those arguments, although there will be further litigation over whether Kentucky’s ban violates the Constitution as the court case proceeds.
The 6th Circuit only denied a preliminary injunction on Thursday. That isn’t a final ruling on the merits of the case.
Still, the appeals court did offer analyses of various legal questions brought up by the lawsuit. A common theme in its ruling is: The judiciary should be careful about intervening in legislative decision-making on an issue like this.
“Prohibiting citizens and legislatures from offering their perspectives on high-stakes medical policies, in which compassion for the child points in both directions, is not something life-tenured federal judges should do without a clear warrant in the Constitution,” the ruling said.
Republican lawmakers in Kentucky and other states have pursued policies, especially over the past couple years, that restrict transgender youth’s access to medical care and their ability to participate in school sports.
In addition to banning gender-affirming hormone therapy for trans kids in Kentucky, SB 150 also:
- Prohibits gender-affirming surgery for trans minors — surgeries that experts say are rarely provided to anyone under 18 years old.
- Restricts which bathrooms trans students can use in public schools.
- Allows public school teachers to misgender trans students.
- Places new restrictions on sex education and instruction on gender identity and sexual orientation in public schools.
Democratic Gov. Andy Beshear, who’s up for reelection in November, vetoed the law in March, saying it “rips away the freedom of parents to make medical decisions for their children.”
The Legislature’s Republican supermajorities easily overrode his veto. And Attorney General Daniel Cameron, a Republican running against Beshear, has defended SB 150 in court in recent months.
Reactions to the new ruling
Cameron sent out a statement Thursday night celebrating the appeals court’s decision and highlighting his defense of SB 150.
He has promoted anti-trans rhetoric during his campaign for governor. Even though major medical associations and a wide range of medical experts recommend preserving youth’s access to gender-affirming hormone therapy, Cameron claims these treatments are dangerous.
“Despite full-throated denials by Gov. Beshear and his far-left activists, our children would still be under attack without SB 150,” he said in a statement Thursday on the appeals court’s decision. “Andy Beshear won’t protect our kids, but I will, and I am proud to carry the mantle for this important law.”
LPM News requested a comment from Beshear Friday but did not immediately receive a response from his press office.
Oliver Hall, director of trans health at the Kentucky Health Justice Network, criticized the new ruling and expressed support for trans kids across the state.
“This ruling perpetuates the damage that Kentucky families of trans youth are already shouldering – but let me be clear: No law, and no court ruling, can stop transgender people from existing,” they said in a statement. “Trans youth need to know that they are loved, supported, and affirmed, and that’s what we remain committed to during this devastating period for the trans community in Kentucky.”
Legal director Corey Shapiro of the ACLU of Kentucky, which represents the plaintiffs in the case, said in a statement that the new ruling ignored “extensive evidence from the actual medical experts” that the treatments Kentucky has banned are “medically necessary, effective, and appropriate.”
A core argument against banning gender-affirming hormone therapy, made by trans youth and adults as well as doctors and therapists, is that barring kids from accessing those treatments endangers their mental health.
Shapiro told LPM News the ACLU’s legal team is reviewing the new ruling and evaluating their options.
“We are going to continue to fight for these kids,” he said. “These kids are worth fighting for.”
Correction: This article has been updated to correctly identify the ACLU of Kentucky as a legal representative for the plaintiffs.