On Sept. 28, 2023, the 6th U.S. Circuit Court of Appeals issued a complete smackdown of the American Civil Liberty Union’s (ACLU) case against laws preventing minors from receiving “gender-affirming care,” simultaneously affirming recent laws in Tennessee and Kentucky seeking to protect children from puberty-blocking drugs and hormones. The 11th U.S. Circuit Court of Appeals did the same, affirming Alabama’s law banning the same treatment on Aug. 21, 2023.
Why? Is it because they’re obviously bigots who are out to cause children to commit suicide en masse?
Not in the least. They did it because it’s not the judiciary’s call.
The 11th Circuit issued a fantastic opinion on this subject. But I want to talk more about Chief Judge Jeffrey Sutton’s opinion in the 6th Circuit case because it was the most thorough and wonderfully written.
The ACLU first argued that the Tennessee and Kentucky laws violated the Constitution’s 14th Amendment by discriminating against a protected class. Yet they failed to make a connection between the Constitution and these children or parents being a protected class, so the Court didn’t touch the argument.
Their second argument was that the laws violated the parents’ substantive due process right to give their children any medical treatment they see fit. But suppose you are going to read a substantive due process right (or inherent right not expressly stated by the Constitution but rather so obvious we all know it is there) into the 14th Amendment. In that case, you must first prove it is deeply rooted in our nation’s history and tradition. Here, the ACLU didn’t even venture.
“The threshold question is whether the Constitution is neutral about legislative regulations of new and potentially irreversible treatments for minors,” Sutton said in his opinion, correctly framing the issue. He concluded that parents do not have a constitutional right to obtain reasonably banned treatments for their children.
Before making this point, Sutton gave a detailed history of treating minors and adults with gender dysphoria. Until the 1990s, he noted, children were not allowed to receive puberty blockers, cross-sex hormone treatments, or surgery for their condition unless they lived as the other gender for years and were 16 years old for the medication and 18 for the surgery. Before that, children were not allowed to be treated for gender dysphoria other than with counseling or allowances to dress and act as the other gender.
This changed in 2012. Magically and without any change in evidence, minors were suddenly allowed to receive all the above treatments with no prior requirements or age restrictions. Currently, minor patients don’t even need a referral or approval from a doctor or parents. Sutton disturbingly notes that “the percentage of youth identifying as transgender has doubled from 0.7% of the population to 1.4% in the past few years.” Three times more gender dysphoria diagnoses in minors occurred in 2021 than in 2017.
Legally, the Constitution has never recognized the right to take whatever medication you wish. For instance, if the FDA has not approved a drug, even if it’s a potentially lifesaving cancer drug, a patient cannot legally take it. And in Washington v. Glucksberg (1997), the Supreme Court ruled there is no right to physician-assisted suicide.
But Sutton also throws shade at gender-affirming care being medically accepted treatments. Some doctors approve of its use, yes. However, the FDA has not approved most of these drugs for treating minors with gender dysphoria. Instead, these drugs are often labeled for the treatment of other things.
Another reason for the ACLU’s absolute failure is that they didn’t make arguments based on originalism. Instead of properly evoking 14th Amendment protection by making a case for the right to give your children life-altering drugs and surgery based on the history and tradition of the country, they made a broad conclusion with no evidence. It takes a lot more work to make originalist arguments, and it seems the ACLU is just too busy kissing the hem of Satan’s fiery robe to do that work.
The U.S. appeals courts are split on this issue, and I have little doubt the topic will work its way to the Supreme Court soon. My organization, Alabama Center for Law and Liberty, has filed a brief supporting Alabama’s law on this issue, focusing on the parental rights aspect, which I believe will be a major sticking point in the cases going forward. And when these cases do go forward, I believe Sutton’s opinion will hold great sway with the U.S. Supreme Court, which is why his smackdown is worth a read.
Laura Clark is a wife, mother, and community activist. She currently serves as the interim president of Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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