(CN) — The state of Alabama may regulate the prescription of puberty-blocking medications and hormones to children, a three-judge panel of the 11th Circuit ruled Monday, affirming a key component of one of the nation’s most restrictive anti-transgender bills.
The opinion reversed a preliminary injunction, with the appeals panel ruling the lower court applied an improper standard of scrutiny.
The Vulnerable Child Compassion and Protection Act makes it a felony to provide transgender youth with puberty blocking medication, hormone therapy or surgery for the purposes of changing their birth sex. It also prohibits school officials from keeping certain gender-identity information of children secret from their parents and prohibits school officials from encouraging or compelling children to keep certain gender-identity information secret from their parents.
No sooner had it passed along partisan lines by the Republican controlled Legislature and was signed by Republican Governor Kay Ivey in April 2022, the law drew opposition in the courts. The plaintiffs in the case at issue Monday — which include the parents of five transgender youths, a pediatrician and a child psychologist — argued the law violated their right to direct the medical care of their children while also discriminating 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 2022, U.S. District Judge Liles C. Burke, a Donald Trump appointee, upheld other provisions of the law but leaned on precedent to grant the injunction.
“Because the Supreme Court and the Court of Appeals for the Eleventh Circuit have made clear that parents have a fundamental right to direct the medical care of their children subject to accepted medical standards; and discrimination based on gender-nonconformity equates to sex discrimination, the court finds that there is a substantial likelihood that [the medication portion] of the act is unconstitutional and, thus, enjoins defendants from enforcing that portion of the act pending trial,” Liles wrote.
On appeal, U.S. Circuit Court Judge Barbara Lagoa, also a Trump appointee, wrote the provision was only subject to a rational basis review, not the heightened standard of scrutiny applied by Liles. Notably, she also emphasized “the plaintiffs 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.'”
Oral arguments in the case were heard in Montgomery in November 2022.
Of the precedents cited by Liles, Lagoa determined “those decisions applying the fundamental parental right in the context of medical decision-making do not establish that parents have a derivative fundamental right to obtain a particular medical treatment for their children as long as a critical mass of medical professionals approve. Moreover, all of the cases dealing with the fundamental parental right reflect the common thread that states properly may limit the authority of parents where ‘it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.’”
U.S. Circuit Court Judge Andrew Brasher concurred, writing separately to elaborate on the plaintiffs’ equal protection claim.
“Alabama’s statute does not treat one sex differently than the other,” the Trump appointee wrote. “It does not use sex as a proxy for some more germane classification. And it is not based on a sex stereotype. Instead, I think the law is best read to classify — not based on sex — but as between minors who want puberty blockers and hormones to treat ‘a discordance between [their] sex and sense of gender identity,’ and those minors who want these drugs to treat a different condition.”
Alabama’s law does allow doctors to prescribe hormones and puberty blocking medications for health issues that do not involve gender dysphoria.
U.S. District Court Judge Jean-Paul "J.P." Boulee, a Trump appointee sitting by designation, completed the appellate panel.
In a statement Monday, Alabama Attorney General Steve Marshall praised the decision.
“The Eleventh Circuit reinforced that the state has the authority to safeguard the physical and psychological well being of minors, even if the United States Attorney General and radical interest groups disapprove,” Marshall said. “Alabama takes this responsibility seriously by forbidding doctors from prescribing minors sex-modification procedures that have permanent and often irreversible effects. This is a significant victory for our country, for children, and for common sense.”
A joint statement from organizations representing the plaintiffs, including the Southern Poverty Law Center and Human Rights Campaign, noted the panels decision differs from those of other circuits and even its own prior rulings.
“Every federal district court that has heard the evidence presented in these cases has come to the same conclusion: these medical treatments are safe, effective, and lifesaving for some youth, and there is no legitimate reason to ban them," the plaintiffs' statement says. "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. 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.”
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