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Sixth Circuit Allows Laws to Remain in Effect Protecting Children From Mutilation

Rebecca Downs
Rebecca Downs  |  September 29, 2023 12:15 PM

On Thursday, the Sixth Circuit Court of Appeals upheld laws from Kentucky and Tennessee that protect children from experimental medical procedures that supporters claim are "gender affirming care," but which in reality involve genital mutilation, sterilization, and other health problems. 

While groups like the American Civil Liberties Union (ACLU) are lamenting the decision, others are celebrating. 

"This is a big win for democracy," Tennessee Attorney General Jonathan Skrmetti posted in a statement. "Decisions that are not clearly resolved by the Constitution should be resolved by the people through their elected representatives. I am so proud of our team who stood strong against the overwhelming resources arrayed against Tennessee in this case."

Lawmakers in Tennessee had brought forth such legislation because, as Madeline highlighted last September, Matt Walsh revealed that a clinic at Vanderbilt University Medical Center was performing "gender-affirming" surgeries on healthy children, with the clinic being opened in 2018 because the surgeries were considered a "big money maker." The clinic also made "Trans Buddies" available to minors who thought they might be transgender. 

The decision is also a win for Daniel Cameron, Kentucky's Republican attorney general, who is challenging Democratic Gov. Andy Beshear in the November election. 

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As Cameron mentioned in his own post, Beshear had actually vetoed the law that the Sixth Circuit upheld, Senate Bill 150, earlier this year. The Republican-controlled legislature overrode that veto, though. "Andy Beshear had vetoed the law. He won't stand up for our laws or our kids. I will always defend both," Cameron said, who also referred to such procedures as "experimental sex-change treatments for kids."

A post from his official account also included a statement noting he was "proud to carry the mantle for this important law."

Beshear has yet to post about the decision from either his official or campaign account on X, as of Friday morning, though he has posted about other matters. 

In March, as Leah covered, protesters opposed to SB 150 stormed the Kentucky capitol in Lexington. The protesters removed were also charged with criminal trespassing after having had "the option to leave without any enforcement action or be placed under arrest," said police spokesman, Capt. Paul Blanton. 

The Daily Wire's Gregg Re highlighted a particularly noteworthy part of the decision, which reverses a district court's preliminary injunction. 

With regards to the Kentucky law, the decision included a section titled "Not a politically powerless group," which reminds plaintiffs that they have the support of President Joe Biden and his Department of Justice (DOJ), transgender individuals are protected by national laws from employment discrimination, other states, "major medical organizations," and "the only large law firms to make an appearance in the case."

"These are not the hallmarks of a skewed or unfair political process—and they offer no explanation for inviting a greater political dysfunction problem: the difficulty of amending the Constitution if the federal courts err in choosing to occupy the field," the section also reads. 

Another section was titled "Not an animus-driven law."

"Plaintiffs also have not made the case that animus toward transgender individuals as a class drives this law. Assessing legislative 'motives or purposes' is 'a hazardous matter,' and it’s not the point of the inquiry," the decision noted, citing United States v. O’Brien, a Supreme Court case from 1968. 

"The key problem is that a law premised only on animus toward the transgender community would not be limited to those 17 and under. The legislature plainly had other legitimate concerns in mind," the decision went on to read. "A fair-minded legislature could review the evidence in the area and call for a pause, demanding more proof that these procedures are safe before continuin gon the path the plaintiffs propose. Neither risk aversion nor a fair-minded policy dispute about the best way to protect children shows animus."

Beyond possibly affecting the Kentucky governor's race, where Beshear is leading, there are larger, more national implications as well. 

"This case and similar ones present novel legal issues that make review by the Supreme Court more likely. One issue is whether parents have a fundamental right to make healthcare decisions for their children despite a long tradition of the government regulating drugs and medical practices," Curt Levey, a constitutional law attorney and the president of the Committee for Justice, said in a statement for Townhall. "The other issue is whether laws banning types of gender-transition medical treatment are discrimination based on sex, which would subject the laws to a higher level of constitutional scrutiny. The odds of Supreme Court review are also increased by the developing split among the federal courts of appeal on this issue, a split that will surely deepen given the legal challenges in many of the twenty or so states with such laws."

The Washington Examiner published an analysis on Thursday, before the Sixth Circuit ruled, predicting "Supreme Court may reckon with state trans procedure bans for minors sooner than later," especially since a Montana law had just been struck down by a federal judge.