Jane Doe 1 v. William Thornbury, Jr.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0163p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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JANE DOE 1, et al.,
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Plaintiffs-Appellees, │
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v. > No. 23-5609
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WILLIAM C. THORNBURY, JR., M.D., in his official │
capacity as the President of the Kentucky Board of │
Medical Licensure, et al., │
Defendants, │
│
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COMMONWEALTH OF KENTUCKY ex rel. DANIEL │
CAMERON, Attorney General of the Commonwealth of │
Kentucky, │
Intervenor-Appellant. │
┘
On Emergency Motion to Lift Stay of Preliminary Injunction.
United States District Court for the Western District of Kentucky at Louisville.
No. 3:23-cv-00230—David J. Hale, District Judge.
Decided and Filed: July 31, 2023
Before: SUTTON, Chief Judge; WHITE and THAPAR, Circuit Judges.
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COUNSEL
ON EMERGENCY MOTION: Corey Shapiro, Heather Gatnarek, Crystal Fryman, ACLU OF
KENTUCKY FOUNDATION, Louisville, Kentucky, Stephanie Schuster, MORGAN, LEWIS &
BOCKIUS LLP, Washington, D.C., for Appellees. ON RESPONSE: Victor B. Maddox,
Matthew F. Kuhn, Alexander Y. Magera, OFFICE OF THE KENTUCKY ATTORNEY
GENERAL, Frankfort, Kentucky, for Appellant.
The court issued an order. WHITE, J. (pp. 4–5), delivered a separate dissenting opinion.
No. 23-5609 Doe, et al. v. Thornbury, et al. Page 2
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ORDER
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PER CURIAM. The district court preliminarily enjoined Kentucky’s ban on sex-
transition care for minors but later stayed its injunction in light of L.W. ex rel. Williams v.
Skrmetti, No. 23-5600, 2023 WL 4410576 (6th Cir. July 8, 2023). Plaintiffs ask us to lift the
district court’s stay.
Our decision is governed by four factors: likelihood of success on the merits, irreparable
harm, the balance of harms, and the public interest. Roberts v. Neace, 958 F.3d 409, 413 (6th
Cir. 2020). We recently balanced these factors in a case involving Tennessee’s ban on sex-
transition care for minors and held that they favored allowing Tennessee to enforce its law.
Skrmetti, 2023 WL 4410576, at *8.
That holding controls here. Kentucky bans the same conduct as in Skrmetti. Ky. Rev.
Stat. § 311.372(2); Tenn. Code Ann. § 68-33-103(a). Plaintiffs bring the same Equal Protection
and Due Process claims that, in Skrmetti, we held were unlikely to succeed. 2023 WL 4410576,
at *3–8. Their likelihood of success—often “the determinative factor”—is the same here. See
Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012). Indeed, plaintiffs identify only two
differences between this case and Skrmetti. But neither changes our balancing of the stay
factors.
First, plaintiffs note that Tennessee’s law allows minors currently receiving treatment to
continue care until March 31, 2024. See Tenn. Code Ann. § 68-33-103(b)(1)(B). Kentucky’s
law likewise gives minors currently on treatment time to wean off, but it requires that weaning
begin immediately. Ky. Rev. Stat. § 311.372(6). Plaintiffs argue that this changes the balance of
harms because they suffer immediately the harm that Tennessee’s law allowed minors to
postpone for months.
Looking only at the text of the laws, plaintiffs have a point. But the facts presented to us
in Skrmetti were no different from the facts here. There, the district court found that the
plaintiffs’ doctors would begin weaning immediately. L.W. ex rel. Williams v. Skrmetti,
No. 23-5609 Doe, et al. v. Thornbury, et al. Page 3
No. 3:23-cv-376, 2023 WL 4232308, at *33 (M.D. Tenn. June 28, 2023) (“[T]he record
demonstrates undisputedly that the continuing care exception will cause doctors to titrate down
their minor patients’ medications . . . beginning on July 1, 2023.”). We did not disturb that
finding. So, just as in Skrmetti, Kentucky’s weaning period “lessens the harm” to minors “who
wish to continue receiving treatment.” See Skrmetti, 2023 WL 4410576, at *8.
Next, plaintiffs argue that because some Kentucky officials disagree with the ban,
Kentucky’s interest in enforcing the ban is weaker than Tennessee’s. But the fact that some
officials disagree with the ban does not change the analysis. As a sovereign state, Kentucky has
an interest in creating and enforcing its own laws. See Cameron v. EMW Women’s Surgical Ctr.,
P.S.C., 142 S. Ct. 1002, 1011 (2022); Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592, 601 (1982). The people of Kentucky enacted the ban through their legislature.
That body—not the officials who disagree with the ban—sets the Commonwealth’s policies. See
Cameron v. Beshear, 628 S.W.3d 61, 75 (Ky. 2021).
In short, plaintiffs’ requested stay presents the same issues decided in Skrmetti. We
decline to lift the district court’s stay.
No. 23-5609 Doe, et al. v. Thornbury, et al. Page 4
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DISSENT
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HELENE N. WHITE, Circuit Judge, dissenting. For the reasons stated in my separate
opinion in L.W. ex rel. Williams v. Skrmetti, I would lift the district court’s stay of its preliminary
injunction. See No. 23-5600, 2023 WL 4410576, at *9 (6th Cir. July 8, 2023) (White, J.,
concurring in part and dissenting in part). Further, because I do not agree that Kentucky patients
who were receiving the now-banned treatments at the time the law was enacted are in the same
position as the Tennessee patients in Skrmetti, I would, at a minimum, lift the stay as to patients
who were receiving treatment.
Like the plaintiffs challenging Tennessee’s law, Plaintiffs here have shown that they are
likely to succeed on the merits because Kentucky’s law discriminates on the basis of sex. See id.Thus, the district court here properly issued a preliminary injunction, as did the district court in
Skrmetti. Id. In this case, however, there is greater reason to let the preliminary injunction stand
because, unlike the Tennessee statute in Skrmetti, Kentucky’s law does not provide a continuing-
care exception. As this court has explained, “[t]he probability of success [on the merits] that
must be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will
suffer.” Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153
(6th Cir. 1991). Even following the majority’s reasoning in Skrmetti, a preliminary injunction is
appropriate here for patients who were undergoing the now-banned treatments, due to the greater
risk of irreparable harm.
Unlike Tennessee’s law, Kentucky’s law provides no grace period during which patients
receiving care may continue treatment. Cf. Tenn. Code Ann. § 68-33-103(b)(1)(B) (permitting
care to continue without alteration through March 31, 2024). Instead, healthcare providers must
immediately cease treatment or “institute a period during which the minor’s use of the drug or
hormone is systematically reduced.” Ky. Rev. Stat. § 311.372(6). If choosing the latter course,
the provider must “document[] in the minor’s medical record that immediately terminating the
minor’s use of the drug or hormone would cause harm to the minor.” Id. Violations of the
statute result in license revocation. Id. § 311.372(4).
No. 23-5609 Doe, et al. v. Thornbury, et al. Page 5
In Skrmetti, in determining that a preliminary injunction was inappropriate, the majority
found the risk of irreparable harm diminished precisely because of Tennessee’s grace period. Id.
at *8. Today, the majority sidesteps that analysis, reasoning that “the facts presented to us in
Skrmetti were no different from the facts here” because, in that case, “the district court found that
the plaintiffs’ doctors would begin weaning immediately.” Maj. Op. at 2. But the Skrmetti
majority specifically noted that the Tennessee law “permits the challengers to continue their
existing treatments until March 31, 2024” and “[t]hat feature . . . lessens the harm to those
minors who wish to continue receiving treatment.” 2023 WL 4410576, at *8 (emphasis added).
It seems obvious that there is a tremendous difference between a statute like Tennessee’s that
allows flexibility regarding treatment decisions and time to explore alternatives and one like
Kentucky’s that forces doctors to either discontinue treatment immediately or risk losing their
license if a stranger to the doctor-patient relationship second-guesses the doctor’s determination
or documentation that interrupting treatment would harm the minor.
For these reasons, I dissent from the majority’s denial of the Plaintiffs’ motion. I would
lift the district court’s stay of its preliminary injunction based on Plaintiffs’ likelihood of success
on the merits. And, to prevent the harm previously recognized by the Skrmetti majority, I would
lift the stay at least with regard to those who were undergoing the now-banned treatments when
the law took effect.
ENTERED BY ORDER OF THE COURT
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Deborah S. Hunt, Clerk