Alabama Families Continue to Appeal to Block Transgender Care Ban

The Alabama families challenging the state law that criminalizes gender-affirming care for trans minors have asked the full U.S. Court of Appeals for the 11^th Circuit to review a ruling by a three-judge panel of the court.

The panel, consisting entirely of judges appointed by Donald Trump, last month lifted an injunction issued by a lower court that blocked most provisions of the law from being enforced while the lawsuit is heard. So it is now in effect.

The three judges said Judge Liles Burke of the U.S. District Court for the Middle District of Alabama used the wrong legal standard in issuing the injunction. “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,’” the ruling stated.

They cited Dobbs v. Jackson Women’s Health Organization, in which the Supreme Court last year overturned Roe v. Wade and its national guarantee of abortion rights. In Dobbs, the high court found that when determining if a right is a substantive one guaranteed by the U.S. Constitution’s due process clause, courts must decide if it is “deeply rooted in [our] history and tradition” and “essential to our Nation’s ‘scheme of ordered liberty.’”

The 11^th Circuit panel’s ruling also said the Alabama law does not amount to discrimination based on sex or transgender status and is therefore subject only to the lowest level of constitutional review.

The families in the suit, who have trans children, and their lawyers disagree. “In their request for rehearing, the plaintiffs argue the full court should review the panel decision because it conflicts with Supreme Court and 11th Circuit precedent dictating that all laws discriminating based on sex should be subjected to heightened scrutiny under the Equal Protection Clause, and because the ban violates parents’ longstanding right to make medical decisions for their children, rather than cede that power to the state,” says a press release from the groups representing the families.

These groups are GLBTQ Legal Advocates & Defenders, the National Center for Lesbian Rights, the Southern Poverty Law Center, and the Human Rights Campaign.

“Our clients and other Alabama families have a right to protect their transgender children and ensure they get the support they need,” Shannon Minter, legal director at the National Center for Lesbian Rights, said in the press release. “The panel’s decision tramples on that right and conflicts with clearly established Supreme Court and 11th Circuit law. We hope the full court will review this case and prevent this devastating criminal ban from taking effect.”

“Allowing [the Alabama law] to take effect would serve no purpose other than preventing parents from obtaining the medical care their children need,” added Scott McCoy, deputy legal director for LGBTQ rights and special litigation at the Southern Poverty Law Center. “Every federal district court that has heard the evidence presented has come to the same conclusion: the established medical treatments recommended for transgender adolescents are safe, effective, and lifesaving for some youth, and there is no legitimate reason to ban them.”

Alabama Gov. Kay Ivey signed the gender-affirming care ban into law early in May 2022. Burke issued the injunction later that month. The law makes it a felony to provide gender-affirming care to minors, with violation punishable by a prison term of up to 10 years and a fine of up to $15,000.

Burke’s injunction blocked the law’s ban on the administration of hormones and puberty blockers to minors for the purpose of gender transition. He left intact the provision banning gender-affirming surgeries for minors, which are not taking place in the state, and one requiring school staffers to notify parents if a student comes out as trans.

A federal judge in Georgia, which is in the 11^th Circuit along with Alabama and Florida, recently cited the 11^th Circuit panel’s ruling in lifting her injunction against Georgia’s ban on hormone therapy for trans minors. The panel’s decision “is binding precedent right now,” U.S. District Judge Sarah Geraghty wrote last week. The Georgia law does not deal with puberty blockers or surgeries.

A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit has also lifted injunctions that federal district courts issued against gender-affirming care bans in Kentucky and Tennessee.

A total of 22 states have passed laws banning or restricting gender-affirming care for trans minors, but several of them remain blocked by courts while lawsuits are heard. One, in Arkansas, has been struck down by a court, and that ruling is on appeal.

Pictured: Protester and Alabama capitol