Alabama law banning puberty blockers, 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 put the question of a preliminary injunction before the full court.

A panel of the 11th Circuit US Court of Appeals reversed US District Court Judge Liles Burke’s preliminary injunction last year, prompting transgender minors and their parents suing 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 Vulnerable Child Compassion and Protection Act makes it a felony — 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 US Supreme Court is hearing a challenge to a similar law out of Tennessee.

The plaintiffs’ attorneys, 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 with the majority.

Along with GLAD, the plaintiffs are represented by attorneys with 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, but dangerous. Families, not the government, should make medical decisions for children,” they said. “The evidence presented in the case overwhelmingly showed that the banned treatments provide enormous benefits to the adolescents who need them, and that parents are making responsible decisions for their own children. We will continue to challenge this harmful measure and to advocate for these young people and their parents. Laws like this have no place in a free country.”

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

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

“Difficult questions of morality, parental rights, and medicine are properly left to democracy, and we should not pretend that the Due Process Clauses give unelected judges the authority to second-guess public policy,” he went on to say.

In her dissent, US Circuit Judge Robin Rosenbaum claimed the panel’s decision not to uphold Burke’s preliminary injunction had far-reaching consequences beyond transgender care for minors.

“The panel opinion’s reasoning strips every parent in this Circuit of their fundamental right to direct that their children receive any medical treatment (no matter how well-established and medically endorsed)—except for those medical treatments in existence as of 1868. Yes, 1868 —before modern medicine,” Rosenbaum wrote.

“So in the states of Alabama, Florida, and Georgia, blistering, blood-letting, and leeches are in, but antibiotics, antivirals, and organ transplants are out,” she continued.

Rosenbaum called the panel’s opinion “wrong and dangerous.

“Make no mistake: while the panel opinion continues in force, no modern medical treatment is safe from a state’s misguided decision to outlaw it, almost regardless of the state’s reason,” she wrote. “Worse still, if a state bans a post-1868 treatment, no parent has legal recourse to provide their child with that necessary, life-saving medical care in this Circuit. And if an individual cannot access medical treatment because of their sex or transgender status, they are similarly without legal recourse.”

US Circuit Judge Adalberto Jordan, whose dissent was criticized in Pryor’s opinion, gave similar reasoning as Rosenbaum.

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