Can states' bans on transgender care hold up in court? We break down the arguments

LOUISVILLE, Ky. – Of the 20 states restricting gender-affirming hormone therapy, nearly half are being challenged in federal court.

At the heart of these lawsuits is this question: Do bans on gender-affirming care violate the U.S. Constitution's Fourteenth Amendment?

(A reminder: The Fourteenth Amendment says states can't deprive people of liberty without due process and can't deny people equal protection under the laws.)

Abigail Moncrieff is the co-director of Cleveland State University's Center for Health Law and Policy and says, "The problem with gender-affirming care is that it's never been challenged before."

"The question of, 'Do parents have a right to provide their children with gender-affirming care?' is a new question," she says.

Plaintiffs, including trans kids and their parents, claim the laws violate parents' due process right to direct their children's care. They also argue the laws illegally discriminate against trans kids.

Almost all the lawsuits are still in the early stages, with judges mainly deciding whether to block the bans while the cases play out in courtrooms.

But, so far, the rulings can be separated into two camps.

Camp 1

The first camp, including rulings from several district courts, says parents probably do have a right to get their kids gender-affirming hormone therapy.

Moncrieff says these initial rulings argue: "The medical care that's at issue is not unsafe or ineffective or quack medicine. Therefore, a statute interfering with a parents' right to make that choice on behalf of their child is unconstitutional."

Miles Joyner, a Kentucky social worker and trans man, says he's glad district court judges are taking a close look at the actual evidence on gender-affirming care.

"Because the truth is, all of the nationally recognized organizations, like the American Psychological Association, the American Medical Association ... agree that gender-affirming care is both medically necessary as well as ethical," he says.

While the judges in Camp One contend that gender-affirming care bans appear unconstitutional, Moncrieff says Camp Two argues the bans likely do not violate the Fourteenth Amendment.

Camp 2

That camp only has one member so far: The 6th U.S. Circuit Court of Appeals.

Earlier this month, the 6th Circuit let Tennessee's ban on gender-affirming medical treatments temporarily take effect. That prompted a district court judge to reinstate similar restrictions in Kentucky.

Here's how Moncrieff describes a main theme of that ruling: "Courts should be extremely hesitant to create new constitutional rights that block the states from experimenting with legislative approaches." In other words, the appeals court warns against judges hamstringing legislatures.

The 6th Circuit also argues the bans likely do not illegally discriminate against trans children.

Several district court rulings say the opposite, finding such laws probably do run afoul of the Fourteenth Amendment's Equal Protection Clause.

The U.S. Supreme Court's interpretation of that clause has been changing, including in its recent ruling against colleges' affirmative action admissions policies, Moncrieff says. That evolving precedent could affect how courts rule on gender-affirming care cases.

A path to the U.S. Supreme Court

Over time, Moncrieff says she thinks other courts will join the 6th Circuit in Camp Two and there's a good chance you'll see a circuit split, where appeals courts reach different conclusions about the laws' constitutionality.

That's one reason why she thinks the U.S. Supreme Court will weigh in on this issue eventually.

"I'm honestly not sure whether they'll jump in quickly or whether they'll wait for a little while to let the question percolate," she says.

But kids' health care is on the line, says Bobbie Glass, a Kentucky educator and trans woman.

Her home state's Republican-run legislature prohibited gender-affirming hormone therapy for minors in March. Contentious debates led up to that decision.

At one meeting, Republican state Rep. Jennifer Decker defended the government's intervention.

"I have great compassion for the children, parents and their families who are in this situation. However, ultimately, it is our obligation to protect children from irreparable harm," she said. "The state has a compelling interest in that proposition."

Months later, legal arguments about what qualifies as irreparable harm and compelling interests, in this context, are playing out in courtrooms.

"And now we have a predominantly conservative Supreme Court," Glass tells NPR. "And their judgment is going to be really tested in all of this."

She says it's a relief to see district court judges criticize what many experts say are states' baseless medical arguments for prohibiting care for trans kids.

"Maybe there is some hope that there's some sanity. Because what you have is flawed theology, toxic religion, running rampant over the Constitution," Glass says.

But the legal system is changing, Moncrieff says, so it isn't obvious how the courts might rule.

"The Constitution is resting on shifting sands and it's a little unclear how it's going to settle."

In the meantime, that uncertainty weighs on many transgender kids and their families.

Morgan Watkins is Louisville Public Media's health reporter.

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