Tennessee attorney general demands Justice Department honor free speech rights in adolescent transgender surgery debate

Vanderbilt University Medical Center in Nashville, Tenn., is pictured on July 16, 2013. The medical center came under fierce scrutiny Tuesday, Sept. 20, 2022, after conservative political commentator Matt Walsh posted a series of tweets accusing the private hospital of opening its transgender health clinic because it was profitable, as well as criticizing some of the treatments VUMC provides to minors. Now, Tennessee Gov. Bill Lee is calling for an investigation into the clinic. (AP Photo/Mark Humphrey, File)

NASHVILLE — Tennessee Attorney General Jonathan Skrmetti is leading a 13-member group of Republican state attorneys general demanding U.S. Attorney General Merrick Garland respect the free speech rights of persons criticizing gender-affirming care of minors unless they are "engaged in violent crime or threats of violence."

The move comes days after the American Medical Association, the American Academy of Pediatrics and the Children's Hospital Association urged Garland in a letter to take action against organizations, individuals, and entities "coordinating, provoking, and carrying out bomb threats and threats of personal violence"against children's hospitals and physicians across the U.S.

Skrmetti and the other attorneys general stated in their letter to Garland, written on Skrmetti's official stationary, that "you cannot and should not undertake such investigations or prosecutions. We emphatically agree that anyone engaged in violent crime or threats of violence should be investigated and prosecuted by the appropriate authorities.

"But," Skrmetti and others continued, "the medical organizations are asking you for much more than that. They are asking you to direct the criminal enforcement power of the federal government not only at those committing or threatening violence but also at those whose speech may 'provoke' such threats."

That broad a request, the attorneys general argued, "indicates" they are interested not just in preventing violence but also in "suppressing ideas with which they disagree."

The letter cites as an example a news release by the three major medical associations in which the president of the Children's Hospital Association wrote about "misleading and inflammatory comments that result in threats."

"No doubt the medical associations object to the characterization of double mastectomies for minors as 'mutilation' or 'cutting healthy breasts off teen girls,' or of hormonal treatments as 'chemical castration," Skrmetti and colleagues wrote. 'These descriptors may inflame and provoke. They are also entirely protected by the First Amendment."

The letter states other countries, including Britain, Sweden, Finland and France have recently moved to restrict medical treatment of gender-affirming care of children.

"We respectfully demand that you stand down and allow the national conversation to continue," the letter states. "Now is a time for more speech, not less. Each side must have the opportunity to marshal evidence, make its case, and attempt to persuade the American people of the rightness of its position. This is the process most likely to attain the truth and promote effective policymaking."

State Rep. Gloria Johnson, a Knoxville Democrat, was puzzled by Skrmetti's actions during a Chattanooga Times Free Press phone interview Wednesday.

"We're talking about health decisions here and it seems like he's involving himself in an issue without being invited in, quite frankly," Johnson said. "So no one has asked his opinion or whatever, he has just issued a press release, nobody asked? I guess it's almost as if he's wading into an issue where he's expanding the discussion where he hasn't been asked to weigh in, stepping outside certainly out of the usual role."

The issue of pediatric transgender surgery and puberty blockers blew up among Tennessee Republican legislators last month after the conservative Daily Caller website called attention to Vanderbilt University Medical Center where the procedure is performed. Sixty-two House Republicans signed a letter to the center demanding treatments stop for those under age 18.

VUMC officials had previously stated that procedures were for minors ages 16 and 17 and required consent from parents or a guardian. They said the center has provided five gender affirming surgeries to minors every year since its transgender clinic opened in 2018. None received genital procedures. VUMC announced Friday it was suspending the surgeries as officials reviewed practices.

Republican Gov. Bill Lee weighed last Friday in with a tweet: "We should not allow permanent, life-altering decisions that hurt children. With the partnership of the General Assembly, this practice should end in Tennessee." And his office said the governor was passing along concerns to Skrmetti.

Skrmetti, who formerly served as Tennessee Gov. Bill Lee's legal counsel, was appointed state attorney general in August by the Tennessee Supreme Court, replacing Herbert Slatery who did not seek reappointment, on Sept. 1.

Before joining Lee's administration, Skrmetti, a Harvard Law School graduate, had served as Slatery's chief deputy. Skrmetti has long been active in the conservative Federalist Society.

During the public portion of the Supreme Court's interview process, Skrmetti said he would be looking at creating a special section in the agency to handle lawsuits against the federal government.

"I don't think that it's a partisan move to attempt to enforce the state's interests in affirmative litigation against the federal government. I think it's a part of the dynamic tension of separation of powers that keeps our system going and keeps everybody free," Skrmetti said at the time.

Joining Tennessee in the letter are state attorneys general from Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Oklahoma, Nebraska, South Carolina, Texas and West Virginia.

Contact Andy Sher at asher@timesfreepress.com. Follow him on Twitter @AndySher1.