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Jane Doe 1 v. William Thornbury, Jr.

No. 23-5609

Western District of Kentucky at Louisville

Decided by Sutton, Chief Judge; White and Thapar, Circuit Judges.

Opinion by Sutton, Chief Judge

Dissent by White, Judge

Date Rendered: September 28, 2023

Issue: Whether the United States Constitution prohibits Kentucky from limiting certain sex-transition treatments for minors experiencing gender dysphoria.

Transgender minors with gender dysphoria (hereinafter “children”) and their parents sought a preliminary injunction against KRS 311.372 which prohibits medical providers from providing certain types of gender affirming care to minors and claiming that KRS 311.372 violated their federal constitutional rights to due process and equal protection. The district court granted the preliminary injunction on the basis that the statute “infringed on the fundamental right of parents to obtain medical treatment for their children” and discriminated based on sex. Kentucky appealed.

The Sixth Circuit holds that the children and their parents are unlikely to establish a due process violation as there is no substantive due process right to sex-transition treatments for minors experiencing gender dysphoria “Parental rights do not alter this conclusion because parents do not have a constitutional right to obtain reasonably banned treatments for their children.” The court differentiates between cases compelling medical care and prohibiting medical care, as there is substantial case law on the government’s inability to compel medical care.

The Sixth Circuit holds that the children and their parents are unlikely to establish an equal protection claim  as the statute treats “similarly situated individuals evenhandedly” even when considering age, medical condition, or sex; stating, “One simply cannot define, or create, a protected class solely by the nature of a denied medical benefit: in this instance childhood treatment for gender dysphoria.”

The Sixth Circuit holds that plenty of rational basis exist for the statute noting that the children are not part of a suspect class and are not an immutable group, politically powerless, nor is the statute animus-driven or constitutionally irrational. The Court also concludes public interest favors allowing Kentucky to enforce the statute to “further the public-health considerations undergirding the laws, and to avoid health risks to their children.”

In conclusion, the Six Circuit reverses the preliminary injunction and remands for further proceedings.

Judge White dissents arguing that KRS 311.372 is likely unconstitutional as it “discriminate[s] based on sex and gender conformity and intrude[s] on the well-established province of parents to make medical decisions for their minor children.”

Judge White concludes KRS 311.372 “facially discriminate[s] based on a minor’s sex as assigned at birth and on a minor’s failure to conform with societal expectations concerning that sex” without showing “an exceeding persuasive justification or close means-ends fit” for doing so. She notes that the majority analysis uses an “equal application” principle that has been repeatedly rejected by the Supreme Court.

Judge White also concludes KRS 311.372 violates the due process clause by infringing on the fundamental rights of parents to make medical decisions for their children. She argues the majority improperly framed the question as a what, the right to a particular treatment, and not a who, the right to make a decision about a particular treatment. 

Digested by Elizabeth M. Howell