Law & Principles
Court upholds law protecting children from sex-change treatments
Jonathan Small & Ryan Haynie | July 22, 2023
Every state has laws protecting children from physical abuse. Unfortunately, new forms of abuse sometimes arise. Oklahoma and many other states have recently updated their laws to protect children from being maimed in the name of “gender transitions.”
The Tennessee law in question is similar to Oklahoma's SB 613, prohibiting sex-change surgeries or related treatments. The United States Court of Appeals for the Sixth Circuit noted Tennessee lawmakers were “seeking to ‘protect minors from physical and emotional harm’” and were “concerned that some treatments for gender dysphoria ‘can lead to the minor becoming irreversibly sterile, having increased risk of disease and illness, or suffering adverse and sometimes fatal psychological consequences.’” In other words, the Tennessee Legislature shared the concerns of Oklahoma lawmakers.
Likewise, the arguments made by the ACLU in the Tennessee case mirror those made in the Northern District of Oklahoma: that these laws violate the U.S. Constitution’s due process and equal protection clauses. A lower court sided with the ACLU regarding the ban on hormones and puberty blockers, saying it violated the rights of Tennessee parents to "direct the medical care of their children" and improperly discriminated "on the basis of sex."
One reason the Tennessee case is so important is that one issue on appeal was whether the challengers were likely to succeed on the merits. In other words, will the ACLU win in the end? The Sixth Circuit opinion—written by Judge Jeffrey S. Sutton and joined by Judge Amul Thapar—held that the challengers are unlikely to succeed on their novel due process or equal protection claims.
For starters, the challengers did not even try to argue "the original fixed meaning of either the due process or equal protection guarantee cover [their] claims." Neither have "the people of this country ever agreed to remove debates of this sort—about the use of new drug treatments for minors—from the conventional place for dealing with new forms, new drugs, and new technologies: the democratic process.”
Nor was the Sixth Circuit swayed by the appeal to authority put forth by the ACLU. While it may be relevant that some members of the medical community support their case, "it is not dispositive for the same reason we would not defer to a consensus among economists about the proper incentives for interpreting the impairment-of-contracts or takings clauses of the U.S. Constitution."
The Sixth Circuit held that "challengers have not shown that a right to new medical treatments is 'deeply rooted in our history and traditions' and thus beyond the democratic process to regulate." Recognizing "federal courts must be vigilant not to 'substitute' their views for those of legislatures," the Court held "the Constitution does not require Tennessee to view these treatments the same way as the majority of experts or to allow drugs for all uses simply because the FDA approved them for some."
Finally, addressing the ACLU's equal protection claims, the Sixth Circuit rejected the argument that the ban discriminates on the basis of sex. The law "applies to all minors, regardless of their biological birth with male or female sex organs." The court further recognized "neither the Supreme Court nor this court has recognized transgender status as a quasi-suspect class."
The message from the Sixth Circuit is clear: regulating the medical profession and determining what constitutes child abuse are primarily legislative functions. A few extra years of school does not give either judges or doctors the power to dictate public policy. While Sixth Circuit decisions are not binding in Oklahoma federal courts, the case is certainly persuasive and could help sway the judge overseeing the case here. All this means Oklahoma is very likely, in the end, to succeed in upholding SB 613.
Jonathan Small, C.P.A., serves as President and joined the staff in December of 2010. Previously, Jonathan served as a budget analyst for the Oklahoma Office of State Finance, as a fiscal policy analyst and research analyst for the Oklahoma House of Representatives, and as director of government affairs for the Oklahoma Insurance Department. Small’s work includes co-authoring “Economics 101” with Dr. Arthur Laffer and Dr. Wayne Winegarden, and his policy expertise has been referenced by The Oklahoman, the Tulsa World, National Review, the L.A. Times, The Hill, the Wall Street Journal and the Huffington Post. His weekly column “Free Market Friday” is published by the Journal Record and syndicated in 27 markets. A recipient of the American Legislative Exchange Council’s prestigious Private Sector Member of the Year award, Small is nationally recognized for his work to promote free markets, limited government and innovative public policy reforms. Jonathan holds a B.A. in Accounting from the University of Central Oklahoma and is a Certified Public Accountant.
Criminal Justice Reform Fellow
Ryan Haynie serves as the Criminal Justice Reform Fellow for the Oklahoma Council of Public Affairs. Prior to joining OCPA, he practiced law in Oklahoma City. His work included representing the criminally accused in state and federal courts. Ryan is active in the Federalist Society, serving as the Programming Director for the Oklahoma City Lawyer’s Chapter. He holds a B.B.A. from the University of Oklahoma and a J.D. from the University of Oklahoma College of Law. He and his wife, Jaclyn, live in Oklahoma City with their three children.