U.S. appeals court hears opposing arguments on Kentucky trans minors’ health care

Published 3:30 pm Monday, September 4, 2023

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By Sarah Ladd

Kentucky Lantern

A three-judge federal panel on Friday heard opposing arguments over Kentucky’s ban on gender-affirming medical care for transgender minors, after first hearing arguments in a similar case in Tennessee.

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Stephanie Schuster presented arguments for the American Civil Liberties Union of Kentucky and the National Center for Lesbian Rights, which are suing on behalf of seven anonymous transgender minors and their parents seeking to restore access to hormone treatments and puberty blockers for transgender minors in Kentucky.

Kentucky Attorney General Daniel Cameron’s office is fighting to keep the ban in place in line with Senate Bill 150, which the Republican-controlled legislature enacted earlier this year over Gov. Andy Beshear’s veto. Solicitor General Matthew Kuhn argued for the AG.

Schuster argued that SB150 is inherently discrimination on the basis of sex because a patient’s biological sex – what was assigned at birth – would need to be known for treatment to be legal or illegal.

Kuhn, on the other hand, said that this law deals with “regulating the practice of medicine” and is not sex-based discrimination.

“What Kentucky has done,” he said, “(it) has chosen a particular condition and has chosen particular treatments for that condition and restricted that. That is not a a sex discrimination issue.”

The arguments before a panel of the 6th Circuit U.S. Court of Appeals came after the same court rejected a request from the ACLU of Kentucky in August to let transgender minors access certain medical care like puberty blockers.

The ACLU asked for emergency relief on July 18. The request came days after a federal judge stayed a temporary block on part of SB150’s medical prohibitions.

The law also bans gender-related surgeries like phalloplasty, vaginoplasty or hysterectomies and vasectomies on minors. But neither the ACLU nor Kentucky LGBTQ+ organizations are challenging the ban on such surgeries.

Schuster argued that “the evidence in this record shows that withholding treatment – even up until the age of 18 – and allowing puberty to occur consistent with the sex identified at birth is extraordinarily harmful to these children.”

“And what this regulates is not just procedures that they can’t get until the age of 18,” she said. “It’s many aspects of these children’s lives while they’re in school and able to get treatment that is medically indicated and medically necessary for them to live and develop into functioning and happy adults.”

Friday’s arguments — streamed to the press and public with audio only — were heard by Chief Judge Jeffrey Sutton and judges Amul Thapar and Helene White.

One of the judges said “I feel like there’s compassion (in) both directions.”

He continued: “It’s not crazy to say that there’s a compassion component to the other side of this, that maybe this is the kind of thing some people might regret if they do it at age 14, 15.”

Kuhn argued that SB150 was indeed “a compassion measure.”

“The plaintiffs think that Senate Bill 150 is going to cause harm to children,” Kuhn said in rebuttal. “And the Kentucky General Assembly thinks it’s going to prohibit harm for children.”