6th Circuit Judges Cite Dobbs Abortion Ruling To Uphold TN Trans Care Ban

A 6th Circuit Panel of Republican appointed judges cited Dobbs nine times and stated that because trans care is not "deeply rooted in this country's history and tradition," it can be banned.

In a 2-1 decision, the 6th Circuit Court overturned a lower court ruling that Tennessee's prohibition on gender-affirming care was likely unconstitutional. This ruling effectively revives the controversial law and allows a ban on transgender care to go back into effect in the state.

The three-judge panel, all Republican appointees, invoked the Dobbs abortion ban Supreme Court decision repeatedly throughout their ruling. They upheld the gender affirming care ban's legality, asserting transgender care is not “deeply rooted in the nation's history or traditions,” thus not protected by the United States Constitution. The judges also maintained that the prohibitions would not equate to sex discrimination, a viewpoint hotly contested by dissenting Judge Helene White.

In contrast to the majority, Judge White's dissenting opinion highlighted the panel's lack of engagement with the extensive factual findings surrounding gender-affirming care, its departure from constitutional precedent, and its departure from every other federal court that has heard similar cases.

This ruling distinguishes the 6th Circuit Court from its counterparts. So far, other judges across the country, including those from the 8th Circuit Court of Appeals, have held these bans as likely infringing on the U.S. constitution. The breaking of precedent and departure from other federal courts is a new development, bringing these laws ever-closer to the United States Supreme Court.

In the ruling, Trump-appointed Judge Amul Thapar and Bush-appointed Judge Jeffrey Sutton used the extremely restrictive lens of the “original fixed meaning” of due process and equal protective claims to rule that gender affirming care bans fall short of the rights protected by those constitutional principals. Buttressing their justification, the court used the standard recently quoted in Dobbs that trans care is not “deeply rooted in this nation’s history and traditions,” a standard it quotes twice in the ruling which also cites Dobbs nine times.

See the reference from the majority opinion here:

L.W. v. Skrmetti 6th Circuit Opinion, Page 8

Relying on the Glucksburg Test, named after the precedent in a 1997 case cited in Dobbs, will likely scare many people seeking constitutional protections. This test focuses on whether rights are "deeply rooted in this nation’s history and traditions" to determine constitutional protections. However, many fundamental rights we recognize today, such as privacy, intimate relations at home, access to contraception, interracial and same-sex marriage, are not deeply ingrained in American history. Conversely, practices like the usurpation of indigenous lands, school segregation, stringent gender-specific dress codes, and Jim Crow laws are deeply embedded in our past. The Dobbs decision and the application of the Glucksburg Test could result in significant backtracking on numerous rights under this reasoning - transgender rights appear to be next on the chopping block if this rationale holds up.

The Republican-appointed judges also deny that any sex discrimination is occurring, a denial that is sharply contested by Judge White’s dissenting opinion. The ruling claims that because the law “applies to all minors,” the law does not violate sex-based discrimination claims. This is similar to the legal rationale of gay marriage bans prior to Obergefell, where courts routinely ruled that because gay marriage bans “apply to men and women equally,” those bans are constitutional. Compare these two quotes - one from the 6th Circuit Ruling and one from a ruling on gay marriage in Singer v. Hara:

If a law restricting a medical procedure that applies only to women does not trigger heightened scrutiny, as in Dobbs, a law equally appliable to all minors, no matter their sex at birth, does not require such scrutiny either.

— L.W. v. Skrmetti, 2023

The state points out that all same-sex marriages are deemed illegal by the state, and therefore argues that there is no violation of the ERA so long as marriage licenses are denied equally to both male and female pairs.

— Singer v. Hara, 1974

Judge White dissents heavily on these findings. In her dissent, she points out that individual medical procedures permitted for a minor of one sex are denied for a minor of the opposite sex. She then establishes that because of this, it is clearly a form of sex discrimination banned under Bostock v. Clayton County, another supreme court case that ruled that discrimination against transgender people is inherently discrimination on the basis of sex.

See the applicable portions of Judge White’s dissent here:

Judge White’s dissent, p. 16

Judge White’s dissent, p. 17

The aftermath of the Dobbs decision has clearly initiated an erosion of constitutional protections for all Americans. There is a significant intersection between reproductive healthcare and gender-affirming care, with the same organizations and political groups typically opposing both using the same rationale. Just four days following the Dobbs ruling in 2022, Alabama's attorneys filed a lawsuit, using the same reasoning from the Dobbs ruling to support gender-affirming care bans. Similarly, 14 states have enacted protections guaranteeing the right to access gender-affirming care and abortion care, acknowledging the close ties between these issues. This decision marks the first significant use of Dobbs to uphold care bans and to deny constitutional rights to transgender plaintiffs.

ACLU’s deputy director for transgender justice, Chase Strangio, said of the ruling in a tweet, “This ruling is divorced from precedent, from the lower court opinion and from reality. It is a scary moment for trans people and our health care as the reality of these circuit courts is upon us. But we will absolutely keep fighting and figure something out.”

This ruling does not deliver a final verdict on the matter. Although Tennessee's gender-affirming care ban will resume, the ruling's temporary nature should be emphasized. The court has fast-tracked the resolution of the case, with a deadline set for September 30th, admitting that its stance may shift. Additionally, the plaintiffs have potential recourse; they may appeal en banc to the entire 6th Circuit Court. In other circuits, such as the 8th Circuit Court of Appeals, a temporary restraining order was allowed to remain intact until Arkansas' gender-affirming care ban was deemed unconstitutional. Given the stark deviation this ruling presents from others, the possibility of an appeal to the Supreme Court via the shadow docket cannot be discounted. With so many state laws now coming under constitutional scrutiny nationwide, it seems likely that they will require such a review eventually.