Sixth Circuit Appeals Court Allows Another State to Shield Minors From Cross-Sex Procedures

A transgender individual shows a testosterone ampoule at a hospital in Santiago, Chile, on Jan. 8, 2020. Claudio Reyes/AFP via Getty Images

The 6th U.S. Circuit Court of Appeals in Cincinnati ruled 2-1 on Monday that Kentucky’s ban on minor access for cross-sex procedures, like administering puberty blockers and cross-sex hormones, can continue.

The same court recently ruled to allow a Tennessee ban on cross-sex procedures for minors to continue as well, and wrote (pdf) that the same factors applied in this case.

“Plaintiffs argue that because some Kentucky officials disagree with the ban, Kentucky’s interest in enforcing the ban is weaker than Tennessee’s. But the fact that some officials disagree with the ban does not change the analysis. As a sovereign state, Kentucky has an interest in creating and enforcing its own laws,” the ruling reads.

“The people of Kentucky enacted the ban through their legislature. That body—not the officials who disagree with the ban—sets the Commonwealth’s policies.”

Both of the state laws had been blocked by a lower court, with the 6th Circuit lifting those blocks temporarily ahead of its Sept. 30 ruling.

Given that the success of the cases on merit was factored into the court’s decision to lift the blocks, it is possible that Tennessee and Kentucky will likely continue to prohibit cross-sex procedures for minors beyond September.

“Because Tennessee is likely to succeed on its appeal of the preliminary injunction, we grant the stay,” Chief Judge Jeffrey Sutton wrote on July 8.

Kentucky Law Stricter than Most

Kentucky’s SB 150 (pdf) deals not only with administering hormones and performing surgeries but includes additional language requiring school and counselor disclosure to families when it comes to sex and gender issues, with an emphasis on parental rights.

It requires schools to, at the beginning of the school year, alert parents to the health or mental health services or referrals related to sexuality, contraception, and family planning that the school makes available to students, as well as any changes to these offerings, and requires schools to let parents have the final say over whether these services should be available to their children. It prevents schools from withholding educational or health records from parents.

“School districts and district personnel shall respect the rights of parents to make decisions regarding the upbringing and control of the student through procedures encouraging students to discuss mental or physical health or life issues with their parents or through facilitating the discussion with their parents,” the bill reads.

It prohibits schools from doing a variety of things without parental consent, including addressing a student by pronouns not matching their biological sex, or asking students to address another student or school personnel by other pronouns. All well-being or health screenings need to be provided to parents for review on a case by case basis, and refusal cannot be used as an indicator of “having a belief regarding the topic of the assessment or form.”

It further requires school curriculums on sexuality to include the idea that “abstinence from sexual activity is the desirable goal for all school-age children” and that abstinence and later a “permanent mutually faithful monogamous relationship” are the “only certain ways to avoid unintended pregnancy, sexually transmitted diseases, and other associated health problems.”

No children, regardless of grade level, should receive instruction or presentations with “a goal or purpose of students studying or exploring gender identity, gender expression, or sexual orientation,” with further restrictions for children below certain ages and grade levels, according to the bill.

Outside of schools, the bill prevents what is sometimes referred to as “gender affirming care,” and health care providers are prohibited from attempting to “alter the appearance of, or to validate a minor’s perception of, the minor’s sex, if that appearance or perception is inconsistent with the minor’s sex.” Penalties include losing one’s medical license or certification.

Legal Clashes

The American Civil Liberties Union (ACLU) and seven families brought their lawsuit against Kentucky in May, after the Senate overturned a veto by Democrat Gov. Andy Beshear. U.S. District Judge David Hale blocked the law a day before it was supposed to go into effect, with Attorney General Daniel Cameron appealing in the 6th Circuit last month.

“It’s indefensible that leftist activists are disguising sterilization and genital surgeries as pediatric care for vulnerable children,”  Mr. Cameron wrote. “Child mutilation is illegal in our Commonwealth, and these reckless hormone interventions are based on an irrational ideology that ignores scientific evidence.”

Twenty states have already introduced measures meant to shield children from cross-sex procedures, but the majority of these laws are tied up in the courts.

Arkansas was the first state to attempt a ban in 2021, but it was blocked 10 days before the law was to go into effect after the ACLU filed a lawsuit. The case went to trial last year, before U.S. District Judge James Moody Jr. permanently blocked the legislation in an 80-page ruling last month. Arkansas Attorney General Tim Griffin said the state would appeal the decision in the 18th Circuit Court of Appeals.

Many attempts have gone much the same way. Of the 20 states with such proposals, only Iowa, Mississippi, North Dakota, South Dakota, West Virginia, and Utah have seen their law go unchallenged.