The 11th Circuit on Monday overturned a district court order that blocked Alabama’s felony ban on gender-affirming care from taking effect.
The case, brought by a coalition of four parents of transgender children, healthcare providers, and a pastor, challenges the legality of Alabama’s “Vulnerable Child Compassion and Protection Act.” Signed into law by Gov. Kay Ivey (R) last year, the bill makes it a felony punishable by up to 10 years in prison for any person to “engage in or cause” specified types of medical care for transgender minors, including puberty blockers, hormone replacement therapy, and surgery. These bans, the plaintiffs argued, violate the 14th Amendment’s protection of the rights of parents to make decisions about their children:
The Act intrudes into the right of parents to make medical decisions to ensure the health and wellbeing of their children. It does so by prohibiting parents from seeking and obtaining appropriate medical care for their children and subjecting them to criminal prosecution if they do so…Further, the Act is worded broadly, criminalizing anyone who “causes” an individual to receive the prohibited medical treatments, so that doctors, parents, and even clergy cannot discuss, advise, or counsel parents of transgender minors about how to address their children’s medical needs.
In May 2022, District Judge Liles Burke, a Trump appointee, issued an injunction preventing the ban on puberty blockers and hormone replacement therapy from taking effect. The law, Burke found, had a “substantial likelihood” of being unconstitutional because it interfered with parents’ fundamental rights to direct the medical care of their children and constituted unlawful sex discrimination:
A parent’s right “to make decisions concerning the care, custody, and control of their children” is one of “the oldest of the fundamental liberty interests” recognized by the Supreme Court. Troxel v. Granville, 530 U.S. 57, 65–66 (2000). Encompassed within this right is the more specific right to direct a child’s medical care. See Bendiburg v. Dempsey, 909 F.2d 463, 470 (11th Cir. 1990) (recognizing “the right of parents to generally make decisions concerning the treatment to be given to their children”).15 Accordingly, parents “retain plenary authority to seek such care for their children, subject to a physician’s independent examination and medical judgment.” Parham v. J.R., 442 U.S. 584, 604 (1979).
Against this backdrop, Parent Plaintiffs are substantially likely to show that they have a fundamental right to treat their children with transitioning medications subject to medically accepted standards and that the Act infringes on that right. The Act prevents Parent Plaintiffs from choosing that course of treatment for their children by criminalizing the use of transitioning medications to treat gender dysphoria in minors, even at the independent recommendation of a licensed pediatrician. Accordingly, Parent Plaintiffs are substantially likely to show that the Act infringes on their fundamental right to treat their children with transitioning medications subject to medically accepted standards.
The state appealed Burke’s ruling to the 11th Circuit Court of Appeals at the end of June 2022, seizing on ideas from the Supreme Court’s conservative majority in the Dobbs opinion, released just days earlier. Because hormone replacement therapy and puberty blockers are not “deeply rooted” in U.S. history, Alabama Attorney General Steve Marshall (R) argued, the state is within its rights to ban the treatments:
The Due Process Clause does not forbid States from regulating medicine, be it medical marijuana, abortion, or transitioning treatments. The district court reasoned that parents “have a fundamental right to direct the medical care of their children,” id. at 21, but that defines the right far too broadly. The Legislature determined that transitioning treatments in particular are too risky to authorize, so it is those treatments Plaintiffs must show the Constitution protects. But no one—adult or child—has a right to transitioning treatments that is deeply rooted in our Nation’s history and tradition. The State can thus regulate or prohibit those interventions for children, even if an adult wants the drugs for his child. Just as the parental relationship does not unlock a Due Process right allowing parents to obtain medical marijuana or abortions for their children, neither does it unlock a right to transitioning treatments. The Constitution reserves to the State—not courts or medical interest groups—the authority to determine that these sterilizing interventions are too dangerous for minors. [emphasis added]
A three-judge panel, made up entirely of Trump appointees (11th Circuit Judge Barbara Lagoa, 11th Circuit Judge Andrew Brasher, and District Judge J.P. Boulee), ruled Monday in favor of the state. “The plaintiffs,” Judge Lagoa wrote, “have not presented any authority that supports the existence of a constitutional right to ‘treat [one’s] children with transitioning medications subject to medically accepted standards.’”
[T]he use of these medications in general—let alone for children—almost certainly is not “deeply rooted” in our nation’s history and tradition. Although there are records of transgender or otherwise gender nonconforming individuals from various points in history, the earliest recorded uses of puberty blocking medication and cross-sex hormone treatment for purposes of treating the discordance between an individual’s biological sex and sense of gender identity did not occur until well into the twentieth century. Indeed, the district court’s order does not feature any discussion of the history of the use of puberty blockers or cross-sex hormone treatment or otherwise explain how that history informs the meaning of the Fourteenth Amendment at the time it was ratified—July 9, 1868.
In other words, because the right of parents to obtain medical treatment for their transgender children is not explicitly mentioned in the Constitution and did not exist in 19th-century legal history, the court has no obligation to protect it.
The 11th Circuit’s opinion is already affecting transgender individuals outside of Alabama, with Georgia filing a motion yesterday asking the courts to allow the state to enforce its ban on hormone therapy for transgender minors.