Alabama law banning puberty blockers and hormones for transgender minors remains in effect

Alabama can continue to enforce a state law banning gender-affirming care for minors after a federal appeals court on Wednesday declined to raise the issue of a preliminary injunction before the full court.

Last year, a panel of the 11th U.S. Circuit Court of Appeals reversed U.S. District Judge Liles Burke’s preliminary injunction, prompting transgender minors and their parents who sued Alabama over the law to ask the full 11th Circuit to take up the issue.

But the full federal appeals court declined to consider a preliminary injunction on Wednesday.

The Compassionate and Vulnerable Children Protection Act makes it a crime — punishable by up to 10 years in prison — for doctors to treat people under 19 with puberty blockers or hormones to help affirm a new gender identity.

The law, signed by Gov. Kay Ivey in 2022, is still being challenged on its merits, but the case was put on hold last month because the U.S. Supreme Court is hearing a challenge to a similar Tennessee law.

Attorneys for the plaintiffs, in a statement issued through GLBTQ Legal Advocates & Defenders (GLAD), said they were “disappointed” by the decision but “encouraged” that nearly half of the circuit’s 12 judges dissented from the majority.

In addition to GLAD, the plaintiffs are represented by attorneys from the Southern Poverty Law Center, the National Center for Lesbian Rights (NCLR), the Human Rights Campaign (HRC), King & Spalding LLP, and Lightfoot, Franklin & White LLC.

“As the dissenting judges point out, the panel’s decision is not only wrong, it is dangerous. Families, not the government, should make medical decisions for children,” they said. “The evidence presented in the case overwhelmingly demonstrated that the banned treatments provide enormous benefits to the teens who need them, and that parents are making responsible decisions for their own children. We will continue to challenge this harmful measure and defend these young people and their parents. Laws like this have no place in a free country.”

Chief Judge Bill Pryor, who agreed with the court majority in not bringing the injunction question before the full circuit, argued against a dissenting judge’s opinion that the full court should have heard the case because of the doctrine of substantive due process — the idea that legislatures cannot pass laws without a valid reason to interfere with citizens’ liberty.

“The doctrine of substantive due process violates the text of the Constitution, has no historical pedigree, and offers judges little more than shifting and unclear standards with which to protect unenumerated rights,” Pryor wrote.

“Difficult questions of morality, parental rights and medicine are left to democracy, and we should not pretend that due process clauses give unelected judges the authority to question public policy,” he continued.

In her dissenting opinion, U.S. Circuit Judge Robin Rosenbaum said the panel’s decision not to uphold Burke’s preliminary injunction had far-reaching consequences beyond care for transgender minors.

“The reasoning of the panel’s opinion strips all parents in this Circuit of their fundamental right to order that their children receive any medical treatment (no matter how well established and medically supported) except those medical treatments that existed in 1868. Yes, 1868, before modern medicine,” Rosenbaum wrote.

“In the states of Alabama, Florida and Georgia, blisters, bloodletting and leeches are in fashion, but antibiotics, antivirals and organ transplants are out of the question,” he continued.

Rosenbaum called the panel’s opinion “flawed and dangerous.”

“Let us not kid ourselves: As long as the panel’s opinion stands, no modern medical treatment is safe from a state’s misguided decision to ban it, almost regardless of the state’s reason,” she wrote. “Worse, if a state bans a post-1868 treatment, no parent has legal recourse to provide their child with that necessary and life-saving medical care in this Circuit. And if a person cannot access medical treatment because of their sex or transgender status, they have no legal recourse either.”

U.S. Circuit Judge Adalberto Jordan, whose dissent was criticized in Pryor’s opinion, offered a similar reasoning to Rosenbaum.

“The panel’s decision necessarily means that a parent’s fundamental right to obtain medical treatment for their children extends only to procedures and medications that existed in 1868, not to modern advances such as the polio vaccine (developed in the 1950s), heart surgery (first performed in 1983), organ transplants (first successfully completed in 1954), and cancer treatments such as radiation (first used in 1899) and chemotherapy (which began in the 1940s),” he wrote.