MONTGOMERY, Ala. (CN) — In oral arguments Friday, an attorney for parents of transgender minors told a panel of federal appellate judges that an Alabama law restricting gender-affirming treatments is discriminatory.
In April, the Alabama Legislature passed the Vulnerable Child Compassion and Protection Act, making it a felony to provide transgender youth with puberty blocking medication, hormone therapy or surgery for the purposes of changing their birth sex. Three lawsuits were filed against the state in the ensuing weeks, with the first two voluntarily dismissed to accommodate the plaintiffs in the third.
Those plaintiffs, which include the parents of five transgender youths, a pediatrician and child psychologist, argue the state law violated their right to direct the medical care of their children and discriminated on the basis of sex because puberty blockers and hormones may still be prescribed to children for conditions excluding gender dysphoria, such as endocrine disorders.
In May, a federal judge issued a partial injunction against the law but upheld its provisions banning sex-altering surgeries for minors, along with others prohibiting school officials from withholding gender-identity information from parents or preventing school officials from encouraging children to withhold information from their parents.
The case became a political lightning rod nationally, drawing briefs from 15 states in support of Alabama and at least 22 health care organizations in support of the plaintiffs, including the American Academy of Pediatrics, American Medical Association and World Professional Association for Transgender Health.
At the preliminary injunction hearing, expert witnesses testified about the recognized standard of care for transgender youth, noting evidence suggests the benefits of transition therapy outweigh the risks. The court also heard from the parent of a 15-year-old transgender girl, who said her daughter experienced depression and suicidality prior to her transition but is now “happy and thriving.”
The state provided two witnesses of its own. Dr. James Cantor, a psychologist, suggested using a “watchful, waiting” approach to gender dysphoria until doctors "have a better idea or feel more confident” about a diagnosis and potential treatment alternatives. But on cross-examination, Cantor acknowledged he had very little, if any, practical experience in the subject. The state’s second witness was a 23-year-old woman who testified she quit a one-year regimen of hormone therapy after deciding gender dysphoria isn’t real.
U.S. District Judge Liles C. Burke determined the plaintiffs were likely to succeed on their claim the law infringed upon a “right to treat their children with transitioning medications subject to medically accepted standards.” On the due process claim, Burke found the state produced no evidence the medications were “experimental” or unsafe. The Donald Trump appointee wrote that while state “may intercede on a child’s behalf when health or safety is in jeopardy … the fact that a pediatric treatment involves risks does not automatically transfer the power to choose that treatment from the parents to some agency or officer of the state.”
On the equal protection claim, Burke noted the U.S. Supreme Court, in Bostock v. Clayton County, recently determined “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
“The Act prohibits transgender minors - and only transgender minors - from taking transitioning medications due to their gender nonconformity,” Burke wrote. “The Act therefore constitutes a sex-based classification for puposes of the Fourteenth Amendment.”
It was the equal protection claim that a three-judge panel of the 11th Circuit probed Friday, asking both parties - along with the U.S. Department of Justice as an intervenor - why the law didn't amount to sex discrimination.
Alabama Solicitor General Edmund LaCour argued the state’s primary interest is to “prevent the sterilization of children” and “that no child can use these drugs to affect a cosmetic sex change.” LaCour further characterized gender dysphoria as a “mental health issue” which should not be treated with medications that fundamentally affect growth of the body. He said the law isn’t discriminatory because both sexes still have access to the treatments, although not for gender dysphoria or transitioning.
While defending the state’s right to protect the safety of children, LaCour attacked the plaintiffs' body of professional evidence and called the standard of care “just guidelines.” At one point, he asked the court to imagine if children sought skin grafts to change their racial identity.
“The relevant factor is the risk, not the sex,” he argued.
Representing the plaintiffs, attorney Jeff P. Doss of Lightfoot, Franklin & Wright said the state “has attempted to criminalize the standard of care.”
U.S. Circuit Judge Barbara Lagoa, a Trump appointee, asked Doss to acknowledge detransitioning and again pressed the issue of whether the treatments were experimental, asking if parents had the right to cross borders to seek novel procedures “because I insist my child needs it?”
Doss said data indicates there is a low likelihood for detransitioning after a gender transition and the better course of action, should the state choose to take it, is to regulate diagnostic standards.
“But the state banned the standard of care,” Doss argued Friday. “And it’s not a competing paradigm case where it’s a close call.”
U.S. Circuit Judge Andrew Brasher, another Trump appointee, confirmed the case has a trial deadline of fall 2023 in the lower court.
The panel was rounded out by Senior U.S. Circuit Judge Joel F. Dubina, a George H.W. Bush appointee. The judges did not indicate when they would issue a ruling.
Alabama Attorney General Steve Marshall, a Republican, has defended the law as an effort to protect children from “long term, irreversible harm.”
“The law reflects a growing international consensus that children suffering from gender dysphoria should not be receiving puberty blockers, cross-sex hormones and surgeries,” he said in an April statement, listing a host of potential side affects of transition. “Conversely, the majority of children who experience dysphoria will have it resolve naturally by adulthood, if not subjected to the interventions above.”
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