Alabama can enforce ban on transition treatment for transgender minors, 11th Circuit says
A group of transgender minors, their parents, health care providers and other concerned people claimed in a lawsuit that Alabama’s Vulnerable Child Compassion and Protection Act violated the due process clause and the equal protection clause of the 14th Amendment. Image from Shutterstock.
A federal appeals court on Monday ruled that Alabama can enforce a ban on puberty blockers and hormone treatments for transgender youths.
A three-judge panel of the 11th U.S. Circuit Court of Appeals at Atlanta vacated a district court judge’s preliminary injunction against enforcing the state’s Vulnerable Child Compassion and Protection Act, which was enacted in 2022 and makes it a crime for doctors to provide puberty blockers or cross-sex hormone treatment to a minor to help affirm their gender identity.
“The district court granted the ‘extraordinary and drastic remedy’ that is a preliminary injunction and enjoined Alabama from enforcing part of the law in dispute,” according to the appeals court’s opinion. “In doing so, the district court determined that section 4(a)(1)–(3) of the act is subject to heightened scrutiny on due process and equal protection grounds and therefore the parties challenging the law had a substantial likelihood of success on the merits as to those claims. That was erroneous.”
The New York Times, the Associated Press, Bloomberg Law and USA Today have coverage.
A group of transgender minors, their parents, health care providers and other concerned people brought the lawsuit, claiming that Alabama’s Vulnerable Child Compassion and Protection Act violated the due process clause and the equal protection clause of the 14th Amendment.
In considering the due process claim, the district court held that there is a constitutional right to “treat [one’s] children with transitioning medications subject to medically accepted standards.” The court also said that section 4(a)(1)–(3) of the Alabama law—which says no person shall prescribe or administer puberty blocking medication or cross-sex hormone treatment to a minor “for the purpose of attempting to alter the appearance of or affirm the minor’s perception of his or her gender or sex, if that appearance or perception is inconsistent with the minor’s sex”—likely infringes on that right.
The district court also considered the plaintiffs’ equal protection claim, holding that the challenged section of the Vulnerable Child Compassion and Protection Act classifies on the basis of sex and likely amounts to discrimination.
In its decision, the 11th Circuit said courts must consider whether a right is “deeply rooted in [our] history and tradition” to determine whether it is a substantive right guaranteed by the due process clause.
“The use of these medications in general—let alone for children—almost certainly is not ‘deeply rooted’ in our nation’s history and tradition,” the appeals court said.
The 11th Circuit also sided with Alabama over the equal protection argument, holding that the Vulnerable Child Compassion and Protection Act is a law that targets specific medical interventions for minors and not a law that classifies on the basis of suspect characteristics under the clause.
“The regulation of a course of treatment that, by the nature of things, only transgender individuals would want to undergo would not trigger heightened scrutiny unless the regulation is a pretext for invidious discrimination against such individuals, and, here, the district court made no findings of such a pretext,” the 11th Circuit said.
Republican Alabama Attorney General Steve Marshall described the decision as a “significant victory for our country, for children and for common sense.”
“The 11th Circuit reinforced that the state has the authority to safeguard the physical and psychological well-being of minors,” Marshall said in an Aug. 22 statement after the ruling.
Several similar bans on transition treatments for transgender minors have been blocked in other states, including Arkansas, Indiana and Florida.
But the 6th Circuit at Cincinnati in July allowed Tennessee to enforce a law that bans gender-affirming surgeries, puberty blockers and hormones for transgender minors, saying it was likely constitutional. The New York Times reports that this decision led judges in Kentucky and Nebraska to permit bans to move forward.
The Southern Poverty Law Center, the National Center for Lesbian Rights, the Human Rights Campaign and GLBTQ Legal Advocates & Defenders represent the Alabama families challenging the law and called the Monday decision “deeply disappointing.”
“We believe that at the end of the day, our nation’s courts will protect these vulnerable youth and block these harmful laws, which serve no purpose other than to prevent parents from obtaining the medical care their children need,” according to the groups’ Aug. 21 statement. “Parents, not the government, are best situated to make these medical decisions for their children. These laws are a shocking example of government overreach and a jarring intrusion into private family decisions.”
“This case is far from over, and we will continue to aggressively seek legal protection for these families,” the groups added.
The New York Times reports that a trial on the merits of the case is scheduled for next year.
