Courts Diverge on Gender-Affirming Care for Transgender Minors

Various states have recently enacted laws banning certain types of gender-affirming care for transgender minors. Gender-affirming care involves treatments that help affirm a gender identity different from the gender that a person had at birth. The bans tend to focus on hormone-related treatments that delay puberty or promote the development of masculine or feminine characteristics. Last week, legal challenges to these bans took different directions in different courts.

First, a state judge in Montana temporarily blocked a ban that the Montana legislature had imposed. The judge issued a preliminary injunction, meaning that the law will not be enforced until the litigation is resolved. He found that the law was likely unconstitutional and not genuinely intended to protect minors from experimental treatments, as the legislature had claimed. However, the Montana Department of Justice plans to appeal the injunction.

This outcome echoes the results of cases challenging bans on gender-affirming care in several other states. A state judge in Texas has ruled against a similar law, while judges in federal trial courts in several other states also have found that they are likely unconstitutional. A federal judge in Arkansas permanently struck down a ban on gender-affirming care this summer, finding that it violated equal protection, due process, and the First Amendment. This was the first final ruling on the merits of the issue.

Just a day after the Montana judge issued his order, the U.S. Court of Appeals for the Sixth Circuit reached the opposite conclusion. This federal appellate court reversed preliminary injunctions that had at least partly blocked bans in Tennessee and Kentucky. The Sixth Circuit found that the plaintiffs challenging the bans were unlikely to succeed in their claims. It concluded that courts should be “careful about announcing new substantive due process or equal protection rights” in what it saw as a novel, uncertain field.

Eventually, the U.S. Supreme Court may need to decide the constitutionality of these bans. The Court often chooses to review cases involving constitutional questions that have a broad public impact and that have produced clashing rulings in lower federal courts. Any final resolution lies far in the future, though.

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