Questions over which side was being more compassionate emerged as a key fault line in a federal appeals court Friday, as judges heard arguments on whether to block transgender youth from receiving gender-affirming care in Kentucky and Tennessee.
Supporters of trans kids being able to get puberty blockers and hormone therapy argued that it is safe, necessary health care that’s backed by every major medical group. Advocates of state-level bans on children seeking the care countered that these are experimental and life-altering procedures that young people shouldn’t be exposed to.
Earlier this year, the Sixth U.S. Circuit Court of Appeals in Cincinnati reversed lower court decisions and allowed both Kentucky and Tennessee to move ahead with preventing transgender minors from accessing the care. The move sparked alarm among advocates, who countered that doing so would immediately harm transgender young people currently receiving gender-affirming care, as well as those who may need to access it in the future.
Yet attorneys representing Kentucky and Tennessee argued that since the U.S. Supreme Court has ruled states can prohibit abortion, states are free to regulate gender-affirming care procedures as they see fit.
Friday’s hearing, which was held over video, comes amid a flurry of rulings this week stemming from disputes over limits on transgender and LGBTQ+ rights across the country over new laws in Republican-led states.
“The states play a front line in the indispensable role in regulating the practice of medicine,” said Solicitor General Matthew Kuhn, representing the Kentucky attorney general’s office.
But lawyers for transgender youth and their families said the teenage years are exactly when gender-affirming care should be administered.
“The evidence in this record shows that withholding treatment of even up to until the age of 18, and allowing puberty to occur consistent with the sex identified at birth, is extraordinarily harmful to these children,” said Stephanie Schuster, an attorney for Kentucky families.
U.S. District Judge Amul Thapar said Schuster’s concern over the well-being of the child as the “nut of the case.”
“I feel like there’s compassion in both directions,” Thapar said. “It’s not crazy to say that there’s a compassionate component to the other side of this — that maybe this is the kind of thing people might regret if they do it at age 14, 15.”
Elsewhere in the U.S., the Texas Supreme Court allowed a law against gender-affirming care for youth to take effect Friday, while a federal court on Thursday blocked enforcement of a Texas anti-drag law that performers fear could shut them down or put them in jail. A federal judge in Kansas on Thursday told the state to stop letting transgender people change their birth certificates so the documents reflect their gender identities. Canada this week updated its travel advisory to the U.S., warning members of the LGBTQ+ community that they could face barriers and risks in American states that have enacted laws that may affect them.
And in Florida, a federal judge on Friday rejected requests to make it easier for transgender adults and children in the state to access gender-affirming care, at least for now.
Tallahassee-based U.S. District Judge Robert Hinkle said he would not immediately block enforcement of provisions of a new state law that is resulting in transgender adults continuing to receive hormone treatments. He might reconsider, he said, if he is given more medical evidence about the harm of halting treatments.
Florida is one of 22 states to adopt a law in the last few years banning gender-affirming care for children, including Texas, where enforcement began on Friday. But unlike others, the one signed by Republican Gov. Ron DeSantis in May also has provisions aimed at care for transgender adults.
The law requires that they give consent to treatment in person and with a physician present. Advocates say that’s a problem because much of the care is prescribed by nurse practitioners and/or through telehealth – and that it’s too hard for many patients to get or get to in-person appointments with physicians.
Hinkle also heard arguments Friday on whether to certify a group of transgender people as a class that rulings in the case would cover. He said he was willing to do that, but only with a clear definition of the class. But he said the hold on enforcement of the law for the plaintiffs in the case would not extend to other minors in the class.
Hinkle noted that he has a trial scheduled to start Nov. 13 to determine whether the law is constitutional.
He told lawyers for Florida that there are some problems with the law. “It is fairly remarkable that the state of Florida would tell a 40-year-old trans woman who has a doctor who says ‘You can take estrogen and it will improve your life,’ and the state of Florida says, ‘No you can’t take that.’”
Mulvihill reported from Cherry Hill, New Jersey.