SCOTUS To Evaluate State Bans on Mutilating Children

The High Court granted the petition for certiorari in United States v. Skrmetti in an unsigned order without any opinion or dissent. The Justices will hear arguments in the new term with a decision no later than the end of June 2025. The Biden administration is asking the Justices to review a decision by the Sixth Circuit Court of Appeals that ruled Tennessee Senate Bill 1 was constitutional, which upheld a ban in the state on all procedures attempting to facilitate a minor to live inconsistently with the minor’s biological sex. The federal government argues the ban is sex-based discrimination and violates the Equal Protection Clause in the 14th Amendment to the U.S. Constitution.

While a federal district court temporarily blocked the law saying it discriminates based on “sex” and gender identity, the Sixth Circuit disagreed 2-1 stating that banning puberty blockers, hormones, and mutilating procedures “across the board” for both sexes “lacks any of the hallmarks of sex discrimination.”

Chief Judge Jeffery Sutton of the Sixth Circuit held that neither the Due Process Clause nor the Equal Protection Clause prohibit a state from banning gender transition surgery on minors.

“As long as it acts reasonably, a state may ban even longstanding and nonexperimental treatments for children,” wrote Judge Sutton.

The Sixth Circuit noted that given the 25 states that have enacted laws banning these procedures as others attempt to keep them available requires keeping the lines of debate open.

Judge Sutton wrote, “Given the high stakes of these nascent policy deliberations—the long-term health of children facing gender dysphoria—sound government usually benefits from more rather than less debate, more rather than less input, more rather than less consideration of fair-minded policy approaches. To permit legislatures on one side of the debate to have their say while silencing legislatures on the other side of the debate under the Constitution does not further these goals.”

The Sixth Circuit also rejected the due process right of parents seeking to impose such life-altering procedures and surgery on their children.

“Parental rights do not alter this conclusion because parents do not have a constitutional right to obtain reasonably banned treatments for their children,” wrote Judge Sutton. “But becoming a parent does not create a right to reject democratically enacted laws. The key problem is that the claimants overstate the parental right by climbing up the ladder of generality to a perch—in which parents control all drug and other medical treatments for their children—that the case law and our traditions simply do not support.” 

This Sixth Circuit was also extremely skeptical of the government for suggesting these treatments are not experimental or dangerous.

“The plaintiffs insist that these treatments are not new and do not involve experimental care. Even if that were true, that alone does not give parents a fundamental right to acquire them,” stated the Court.

In the case, the Sixth Circuit consolidated a separate legal challenge in Jane Doe 1 v. Kentucky, which challenges Kentucky’s similar law (SB 150) protecting children. In Kentucky, the law bans puberty blockers, hormone therapies, and mutilating surgeries for minors and allows a person to bring civil action against health care providers, while a person subjected to violations of the law as a minor may bring civil action until they reach 30 years of age.

The Supreme Court’s eventual decision will affect the bans in both Tennessee and Kentucky.

Notably, in August 2023, the U.S. Eleventh Circuit Court of Appeals ruled that Alabama can fully enforce its 2022 law banning harmful puberty blockers, hormone treatments, and mutilating surgeries for children as legal challenges continue. Alabama’s “Vulnerable Child Compassion and Protection Act,” one of the most protective laws of its type in the nation, makes providing any of these procedures to minors a felony.

Liberty Counsel Founder and Chairman Mat Staver said, “The Constitution does not guarantee a right to harm children with experiments and irreversible procedures. The Sixth Circuit has rightly ruled that Tennessee and Kentucky are free to protect children from these horrible procedures and the U.S. Supreme Court has the chance to uphold these protections.”

For more information about state laws protecting against gender ideology, visit Liberty Counsel’s website here.