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6th Circuit Panel Stays Preliminary Injunction in Tennessee Gender-Affirming Care Case

Posted on: July 8th, 2023 by Art Leonard No Comments

For the first time, federal judges have suggested that constitutional challenges to state laws banning gender-affirming care for minors are unlikely to succeed, and have stayed a preliminary injunction that was issued by the district court on June 28 against operation of Tennessee’s law.  The case is LW. V. Skrmetti, No. 23-5600 (6th Cir.).  The state’s request to the trial judge to stay his preliminary injunction pending an appeal had been denied by that judge.  The state immediately filed an “emergency motion” to stay the preliminary injunction.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit voted 2-1 in a decision released on July 8 that the district court’s statewide preliminary injunction against the Tennessee law should be stayed as the case proceeds.  However, acknowledging that their ruling contradicts the ruling of all federal courts that have addressed this issue thus far on the issues of due process and equal protection, the panel promised to expedite consideration of the state’s appeal from the preliminary injunction, with the goal of issuing a decision by September 30.

The Tennessee law, which was scheduled to go into effect on July 1, authorizes state regulatory authorities to impose “professional discipline” on any physician providing gender-affirming care to minors, with a temporary carve-out until March 31, 2024, for continuing care to those already receiving the treatment.  Thus, it would be professional misconduct in Tennessee for a licensed health care provider to start providing gender-affirming care to patients now, or to continue providing such care to patients after March 31 of next year.  The law also provides a right for an “injured minor” or a “nonconsenting parent” to sue health care providers for providing such care.

The district judge who issued the preliminary injunction, Eli Richardson (appointed by President Donald J. Trump), found that the plaintiffs – three transgender minors and their parents– were likely to prevail on their argument that the law violated the constitutional rights of transgender minors on equal protection grounds and their parents on due process grounds.  However, he found that they lacked standing to contest the ban on surgery, limiting his preliminary injunction to the ban on puberty blockers or cross-sex hormones.

The majority of the 6th Circuit panel, Chief Circuit Judge Jeffrey Sutton (appointed by President George W. Bush) and Circuit Judge Amul Thapar (appointed by President Trump), found that Judge Richardson erred by recognizing a “new” fundamental right under the due process clause for parents to override state legislative judgments about access to particular medical treatments for their children.  Judge Richardson found, based on the record before him, that the facts asserted by the Tennessee legislature in support of this measure were contrary to the weight of professional medical authority, but the panel majority insisted that on a motion for preliminary injunction it was inappropriate for the trial court to substitute its judgment for the legislature’s decision to “protect” minors from “experimental treatments” that could permanently affect their reproductive capacity.  The panel majority was critical of the judge’s deferral to the majority judgment of the medical profession, noting that there was debate within the profession on the wisdom of using these medications on minors.

The panel majority also seized upon the fact that use of puberty blockers and cross-sex hormones for gender affirming care was an “off label” use of those medications, as they have not been officially approved by the Food and Drug Administration (FDA) for that purpose.  Judge Richardson had found that “off-label” use of approved drugs is a widespread practice in the medical profession when the drugs have been deemed safe by the FDA, so he had not given weight to the state’s argument that it was rational for it to prohibit such care on that basis.

The panel majority insisted that the Supreme Court has never directly recognized the fundamental right claimed by the plaintiffs in this case, and had – most recently in the Dobbs abortion decision – shown great reluctance to apply the Due Process Clause to recognize rights that were not recognized when the 14th Amendment was adopted in 1867.  Indeed, the court pointed out that the Supreme Court has not recognized any new fundamental rights in the past forty years, arguing that thus it was inappropriate for a federal trial judge to do so in deciding a pre-trial preliminary injunction motion.  As far as the panel majority was concerned, the Supreme Court’s prior parental rights decisions (dealing with education and child custody issues) had not extended to health care, and the Supreme Court had even overridden parents objections to a compulsory vaccination law more than a century ago.

The panel majority rejected Judge Richardson’s conclusion that the plaintiffs were likely to prevail on their equal protection claim, which was based on the conclusion that banning gender-affirming care should be considered either discrimination on the basis of sex or of gender identity, in either case subject to heightened scrutiny.  The panel majority argued that neither the Supreme Court nor the 6th Circuit has explicitly ruled that gender identity discrimination requires heightened scrutiny.

They also rejected the argument that banning gender-affirming care constitutes sex discrimination.  In so doing, they rejected the argument that the Supreme Court’s reasoning in the Bostock case, holding that an employer discriminating against an employee because of their “transgender status” constituted sex discrimination, should be applied in a constitutional equal protection case.  They argued that the Bostock decision applied to interpretation of Title VII of the Civil Rights Act of 1964, which applies only to employment discrimination, and that the Supreme Court had disclaimed ruling on any other aspect of gender identity discrimination.

The panel majority instead embraced the simplistic argument that because the ban on gender affirming care applied equally to male and female minors, there was no discrimination because of sex.  Such reasoning had been rejected by the Supreme Court in Loving v. Virginia, where the state defended its law against interracial marriage by arguing that both white and non-white persons were prohibited from engaging in interracial marriage so there was no discrimination because of race.  The panel majority countered with the Supreme Court’s holding in Dobbs that laws banning abortion, an operation performed only on women, did not raise an equal protection issue.

Before getting to these substantive points, however, the full three-judge panel found that Judge Richardson should not have issued a statewide injunction, insisting that any preliminary relief should be limited to the plaintiffs in the case.  They noted that this was not certified as a class action case, and that blocking the enforcement of a statute for the entire state could only be justified if plaintiffs were likely to prevail on a claim that there were no possible lawful applications of the statute, that it was invalid on its face for all applications.

Dissenting in part, Senior Circuit Judge Helene White (initially appointed by President Bill Clinton toward the end of his second term, but confirmed under a deal to break a deadlock in confirming circuit court judges under which her name was resubmitted to the Senate by President George W. Bush) agreed that the statewide injunction was improper under a 6th Circuit precedent holding that “district courts should not issue relief that extends further than necessary to remedy the plaintiff’s injury.”  However, she parted company from the majority on the equal protection claim, finding that the 6th Circuit’s precedents had recognized discrimination claims by transgender plaintiffs in several cases under Title VII, and that the 6th Circuit had specifically held in the past that “we review discrimination claims brought under the Equal Protection Clause using the same test applied under Title VII.”  She would have upheld the preliminary injunction but narrowed it to apply only to enforcement against the plaintiffs.



Federal Court Finds No Substantive Due Process Protection for BDSM Sex

Posted on: March 7th, 2016 by Art Leonard No Comments

U.S. District Judge Thomas Selby Ellis, III, has rejected the argument that a consensual BDSM relationship is protected against government regulation by the 14th Amendment.  Ruling in a case brought by a George Mason University student who was expelled after his former girlfriend, an undergraduate at another school called Jane Roe in the opinion, charged him with violations of the student Code of Conduct including BDSM sex, Ellis rejected the claim that the school’s interpretation of its student conduct rules so as to deem improper any BDSM relationship violated the student’s constitutional rights.  Doe v. Rector and Visitors of George Mason University, 2016 WL 7757765, 2016 U.S. Dist. LEXIS 24847 (E.D. Va., Feb. 25, 2016).

The plaintiff, proceeding anonymously as John Doe, was expelled during his sophomore year, effective December 5, 2014, after university administrators overturned a decision by a hearing panel that had found him “not responsible as to each of the four charges against him concerning his ‘involvement in an incident that occurred on or around October 27, 2013,’” which was the specific incident identified in the charges of which he had been notified. Roe appealed the panel decision to administrators who reversed it without giving Doe a fair opportunity to respond to additional allegations that went beyond the subjects addressed before the hearing panel.

Doe had been charged with four violations of the student Code of Conduct based on Roe’s allegations by Jane Roe. She claimed that at times he had continued in the BDSM activities after she used the “safe word” that they had agreed upon as a signal that he should desist, and that after she broke off their relationship, he continued to try to communicate with her, at one point sending a text message that if she did not respond to him he would shoot himself.  She communicated with GMU administrators and campus police, who were already monitoring Doe because of various incidents during his freshman year that had brought him to their attention as a possible disciplinary and safety problem.  The campus police recorded a telephone conversation between Doe and Roe in which he seemed to admit that sometimes he continued despite her use of the safe word because he thought she could “handle it.”  However, at the hearing, when a panelist asked whether there were “instances” where the “red word” was used and Doe did not stop, he said that in “very rare” and “unusual circumstances” he would be “set in the routine of things” and Roe would need to say “red” again, at which point he would “stop immediately.”  He said that when hearing the safe word he “would not just blatantly ignore and then continue” with intercourse. Although the October 27 incident was the only one specifically reference in the formal charge he received, questions were asked at the hearing going beyond that one incident, and it later developed that when Roe appealed the administrators considering her appeal had ex parte communication with Roe, probing beyond the October 27 incident without giving Doe a chance to respond to her allegations.

Doe was charged with violations of the following provisions: “(1) infliction of physical harm to any person(s) including self; (2) Deliberate touching or penetration of another person without consent; (3) Conduct of a sexual nature; and (4) Communication that may cause injury, distress, or emotional or physical discomfort.” He asserted a variety of constitutional claims, including that his expulsion was a denial of liberty without procedural due process, that the speech code provision was unconstitutionally broad, and that application of the Code to consensual BDSM activity violated his substantive due process rights under Lawrence v. Texas, the Supreme Court’s 2003 ruling striking down criminal penalties for consensual gay sex using language that could, depending how it is interpreted, broadly protect the rights of adults to engage in consensual sexual activity.

Judge Ellis found that the Doe’s procedural due process rights had been violated, entitling him to reinstatement as a student at GMU, although leaving to further proceedings the question whether GMU could again bring disciplinary proceedings based on the same incidents. The judge identified numerous faults with the procedures followed by GMU, including a failure to comply with the University’s own rules governing appeals from panel decisions and the appearance of bias on the part of the administrators who ruled on Roe’s appeal. Alternatively, Judge Ellis agreed with Doe that imposing discipline because of his text message to Roe threatening suicide violated his First  Amendment free speech rights, because the message did not communicate a “true threat” to harm her or cause any disruption to GMU’s educational mission.  Ellis pointed out that courts have been striking down campus speech codes that impose sanctions for speech that others find upsetting or uncomfortable on grounds of freedom of speech, and cited this ground as an alternative basis to overturn Doe’s expulsion.

Ellis had previously granted a motion to dismiss Doe’s argument about substantive due process, but Doe filed a motion to reconsider that ruling and Ellis decided his reasoning deserved further explanation in this opinion. Doe argued that under Lawrence v. Texas the government (including a state university) could not “criminalize intimate sexual conduct between consenting adults.”  Doe argued that GMU’s Code constituted a “legislative enactment that treats BDSM relationships as sexual misconduct per se.”  Thus, he argued, “the appropriate analytical framework was the strict scrutiny analysis employed where a legislative enactment infringes on a constitutionally protected liberty interest.”  Ellis rejected this argument.

He found that “the Supreme Court’s cases recognizing judicially-enforceable fundamental liberty interests” ran along two lines of precedent, one focused on history and tradition and the other on animus. Looking at the historical approach, he found that there is “no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, choking, or other forms of domination is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty,” so that approach would not find BDSM sex to be a fundamental right.  “Perhaps in recognition of the futility of his argument” under this historical approach, wrote Ellis, Doe “bases his fundamental liberty interest argument on Lawrence, in which the Supreme Court heavily emphasized a tradition of animus against gay people underlying the criminal sodomy statute at issue.

Ellis placed the Supreme Court’s marriage equality ruling, Obergefell, in the same category as Lawrence, observing, “Obergefell highlights that the decision to recognize an implied fundamental liberty interest as judicially enforceable turns, in part, on whether the liberty interest at issue has historically been denied on the basis of impermissible animus or, alternatively, on a legitimate basis aimed at protecting a vulnerable group.  Lawrence is not to the contrary.  There, the Supreme Court reasoned that a statute criminalizing homosexual sodomy violated a judicially enforceable implied fundamental liberty interest in sexual intimacy because of the history of animus toward homosexuals.  Indeed, the Supreme Court has since noted that Lawrence ‘acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State’ and ‘therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians.’”  In Lawrence and Obergefell, the Court said that history and tradition could “guide” and “discipline” the Court’s inquiry but “not set its outer boundaries.”  Instead, as Ellis saw it, there was a balancing of “impermissible animus” on one hand and “whether the government’s interest in limiting some liberty is a justifiable use of state power or an arbitrary use of that power” on the other hand.

Ellis asserted that the conclusion that “there is no deeply rooted history or tradition of BDSM sexual activity remains relevant and important to the analysis. Also relevant and important to the analysis is the absence of a history of impermissible animus as the basis for the restriction at issue here.  Sexual activity that involves binding and gagging or the use of physical force such as spanking or choking poses certain inherent risks to personal safety not present in more traditional types of sexual activity,” he wrote.  Thus, “a legislative restriction on BDSM activity is justifiable by reference to the state’s interest in the protection of vulnerable persons, i.e., sexual partners placed in situations with an elevated risk of physical harm.  Accordingly, consistent with the logic of Lawrence, plaintiff has no constitutionally protected and judicially enforceable fundamental liberty interest under the Due Process Clause of the Fourteenth Amendment to engage in BDSM sexual activity.”

Judge Ellis was appointed to the federal bench in 1987 by President Ronald Reagan. He took senior status in 2007 but continues to hear cases in the federal trial courts in Virginia and has occasionally participated as a substitute judge on panels of the 4th Circuit Court of Appeals.

Doe is represented by Allison Marie Lansell, Justin Emerson Dillon, and Adam Ross Zurbriggen of Kaiser LeGrand & Dillon PLLC, Washington D.C.   The University’s Legal Department provided the defense through attorneys David Garnett Drummey and Brian Eugene Walther.

Justice Stevens on the Obergefell Decision

Posted on: August 5th, 2015 by Art Leonard No Comments

In a speech delivered at an American Bar Association function in Chicago on July 31, 2015, retired U.S. Supreme Court Justice John Paul Stevens had this to say about the Supreme Court’s marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (from the Justice’s prepared text):

“Probably the most significant opinion announced during the Term was Justice Kennedy’s explanation for holding that the Constitution protects an individual’s right to marry a person of the same sex.  I was surprised by his decision to rely primarily on a substantive due process rationale rather than the Equal Protection Clause but, after reflection, I am persuaded that he was wise to do so.  The difference between categories of couples capable of producing children and those completely unable to do so surely provides a rational basis for treating the two categories differently, but the substantive due process doctrine is more appropriate for an all-or-nothing analysis.  The right to marry — like the right to decide whether to have an abortion, or the right to control the education of your children – fits squarely within the category of liberty protected by the Due Process Clause of the 14th Amendment.  Just as Potter Stewart’s reliance on substantive due process in Roe v. Wade, 410 U.S. 113 (1973), and Justice Harlan’s and Justice White’s reliance on the substantive content of the work ‘liberty’ in Griswold v. Connecticut, 381 U.S. 479 (1965), were far better explanations for those two correct decisions than the concept of ‘privacy’ developed by the majority opinions, I am persuaded that a fair reading of the word ‘liberty’ best explains the real basis for the Court’s holding in the marriage case.

“The point is strongly reinforced by the dissenting opinions which rely heavily on earlier decisions rejecting the substantive due process analysis in Lochner v. New York, 198 U.S. 45 (1905).  But those dissents incorrectly assume that our cases overruling Lochner rejected the entire doctrine of substantive due process, whereas in fact they merely rejected its application to economic regulation.  Indeed, it is ironic that all of today’s dissenters (except Justice Thomas) who accuse the majority of improperly resurrecting Lochner, came much closer to committing that sin themselves when they decided to rely on substantive due process as the basis for their conclusion that the Second Amendment applies to the States.  It borders on the absurd to assume that the word liberty does not include one’s right to choose a spouse, but does include a right to possess a firearm in one’s home.  Because today’s dissents may one day persuade their authors to reconsider their own earlier reliance on substantive due process, I think those dissents may have the unintended consequence of lending support for the position advocated in the final chapter of my book.

“I endorse the Court’s holding that the Due Process Clause of the 14th Amendment protects an individual’s right to choose his or her spouse but I remain unpersuaded that that Clause also protects an individual’s right to use a gun.  The dissenters have things backward when they argue that it protects the latter but not the former.”

I am rather surprised to read Justice Stevens’ view that the equal protection issue in the marriage equality case was between categories defined by “couples capable of producing children” and “those completely unable to do so.”  After all, many different-sex couples are either incapable of producing children or uninterested in doing so, yet they are allowed to marry, while many same-sex couples are capable of producing children (with the assistance of a sperm donor or a surrogate).  Both kinds of couples are known to acquire children through adoption as well.  To me, the fact that many, but not all, different-sex couples can have children without the assistance of a third party, makes little difference, if one’s concern is about the raising of children, since different-sex and same-sex couples raising children are similarly situated with respect to one of the main reasons why the state fosters the institution of marriage with its reciprocal obligations.  And it seems clear that the willingness of the state to allow different-sex couples to marry without proof of fertility or intention to have children means that the ability to procreate is not a sine qua non of the right to marry.  Be that as it may, however, the Court’s decision to use substantive due process as its principal doctrinal tool in Obergefell meant that it could decide that case without having to commit itself on the question whether sexual orientation is a classification requiring heightened scrutiny of challenged government policies in discrimination cases.  If avoiding that issue made it possible to have a solid five-member majority supporting one opinion — as Justice Ruth Bader Ginsburg’s recent comments suggest – then it was probably worth while.  But what it means is that Obergefell, as a practical matter, is not relevant as an equal protection precedent for any issue other than the right to marry and to have marriages recognized and accorded full rights by the states, since it was decided under the fundamental rights branch of equal protection doctrine rather than the suspect classification branch.  This is well illustrated by the 6th Circuit’s opinion in Ondo v. City of Cleveland, 2015 Westlaw 4604860 (Aug. 3, 2015), about which I will be writing shortly.