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Challengers to Alabama's felony ban on trans care for minors will seek full appeals court review
The decision puts off going to the Supreme Court immediately. It also means the district court injunction barring enforcement of the hormone therapy ban will remain in effect for now.
Lawyers for the challengers to Alabama's ban on gender-affirming medical care for minors announced on Monday morning that they will be seeking review from the full U.S. Court of Appeals for the Eleventh Circuit of last week’s three-judge panel decision holding that the ban is likely constitutional.
The decision to ask the full court to review the three-judge decision has many ramifications, both in Alabama and elsewhere.
What this most immediately means is that the lower court’s injunction barring the Alabama from enforcing its ban on hormone therapy for transgender people under the age of 19 will remain in effect for now. In short, the law remains on hold and hormone therapy remains legal.
What this also means is that the lawyers have decided not to immediately take this to the Supreme Court — putting that off for a couple months or, if the 11th Circuit grants en banc review, potentially much longer. This has implications for Alabama, for the other states within the Eleventh Circuit (Florida and Georgia), and for the legal landscape for addressing these bans across the nation.
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This is a technical development with lots of legal jargon attached — but it has real effects — so I’m going to try explaining all of the ins and outs of what this means as clearly as possible given that we’re going to be dealing with this over the coming months and potentially years (and, likely, in other circuits).
So, why will the injunction remain in place if the panel said it shouldn’t?
This is so because when the challengers formally seek review from the full court — called en banc review — that stops the appellate court’s judgment in the case from being sent back to the lower court to implement it. That step sending the case back to the district court, legally speaking, is called the issuance of the mandate.
The mandate would normally issue within the next month — 28 days after the opinion was issued, under court rules. Given how the challengers have decided to proceed, however, that means the mandate will not issue in the case until some time after a ruling on the request for en banc review — which the lawyers’ announcement noted does not even need to be filed until Sept. 11 (21 days after the opinion).
If en banc review is granted, that generally means that the panel ruling is vacated — so, the three-judge panel’s ruling would be gone and no mandate would be issued. Then, additional briefing and potential argument would follow, and a brand-new decision from the full court eventually would be issued. During that entire time, absent a different order from the Eleventh Circuit, the injunction would remain in effect.
If en banc review is denied, the default rule is that the mandate would issue in 7 days and then the district court would act to enforce it by ending the injunction — but, that wouldn't necessarily be the end of it. The lawyers could thendecide that they’re going to ask the Supreme Court to hear the case, called seeking a writ of certiorari. If they’re decide to take that step, they could ask the appeals not to issue the mandate until the Supreme Court decides if it will hear the case. If the Eleventh Circuit rejected that request as well, the lawyers could still go a step further, asking the Supreme Court to order the Eleventh Circuit not to issue the mandate while the justices decide whether to take the case.
Finally, if en banc review is granted and the full 11th Circuit reaches the same conclusion as the three-judge panel, the challengers could then take similar steps as described above regarding seeking Supreme Court review.
All of that is technical and complicated, but, at the end of the day, what it means is that the case — and the three-judge panel’s opinion holding that Alabama’s felony ban on hormone therapy for trans minors is likely constitutional — will effectively remain on hold for now.
This development is almost certain to be cited by lawyers challenging Georgia and Florida bans on gender-affirming medical care for minors as a reason for the courts there to hold off any changes on injunctions previously issued in those cases until an en banc decision is made.
In Georgia, lawyers already sought and received an extension through Aug. 30 to respond to Georgia’s request from last week that the district court reconsider its injunction in that case in light of the Alabama three-judge panel decision.
This is a developing story, and it was updated and expanded after initial publication, with the final update at 9:30 p.m. Please check back at Law Dork for the latest news.
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Truly, forgive me for how in the weeds this all is, but I know some people want to know all of this.