I need to return to the latest nonsense in Tennessee, on gender dysphoria — over a quiet cup of sunny Saturday mid-summer’s morning coffee, and a banana, and a bowl of Rainier cherries.

The idea that this “law” — even temporarily is in effect in the Volunteer State, is stupefying. It was largely only in former Axis Power countries (WW II-era) that states/governments were granted the unilateral right to review medical records — for the purpose of prosecution — without patient consent. And yet, two Tangerine appointees on the Sixth Cir. think that is a judgment appropriate exclusively to statehouse buffoons and blowhards, without medical training of any kind.

That is… frankly, breath-taking. So, we quote primarily from the dissent here — a Clinton appointee (full opinion PDF) and highlight her dissenting thoughts:

…Gender identity and gender dysphoria pose vexing line-drawing dilemmas for legislatures. Plenty of challenges spring to mind. Surgical changes versus hormone treatment. Drugs versus counseling. One drug versus another. One age cutoff for minors versus another. Still more complex, what about sports, access to bathrooms, definitions of disability? And will we constitutionalize the FDA approval rules in the process? Even when accompanied by judicial tiers of scrutiny, the U.S. Constitution does not offer a principled way to judge each of these lines — and still others to boot…. [That’s from the majority opinion — and they impliedly decide that legislatures, rather than doctors, should draw the lines. Damn.]

[And so, the very cogent dissent, of Judge White:] Under Tennessee’s law, someone identified male at birth could take puberty blockers consistent with a treatment plan that contemplates development consistent with a male identity, but someone identified female at birth could not. See Tenn. Code Ann. § 68-33-103(a)(1)….

“Like racial classifications, sex-based discrimination is presumptively invalid.” Vitolo v. Guzman, 999 F.3d 353, 364 (6th Cir. 2021). “Government policies that discriminate based on sex cannot stand unless the government provides an ‘exceedingly persuasive justification,’” id. (quoting United States v. Virginia, 518 U.S. 515, 531 (1996)), which requires showing that the “classification serves ‘important governmental objectives,’ and… is ‘substantially and directly related’ to the government’s objectives,” id. (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)). Applying this standard, I fail to see how the state can justify denying access to hormone therapies for treatment of minor Plaintiffs’ gender dysphoria while permitting access to others, especially in light of the district court’s robust factual findings on the benefits of these treatments for transgender youth….

The filching of Vanderbilt’s patient records under color of this “law”, without the patients’ consent — is a shockingly brown-shirters’ move. The only plausible explanation for the State to have these records is to prosecute patients and their doctors for imaginary “violations” of law — ones made up, of wholly unconstitutional cloth, by faux-X-tians, on the hard right. Damn. You may trust that we will cover the oral argument on this nonsense. Out.

नमस्ते