Appeals court upholds Alabama's felony ban on minors' gender-affirming care

Three Trump appointees reversed an injunction blocking the law, allowing the ban to go into effect. Florida and Georgia rulings now in jeopardy.

On Monday afternoon, a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled that Alabama’s 2022 law making “[p]rescribing or administering“ hormone therapy to a minor a felony is likely constitutional.

In so doing, the appeals court tossed out a district court’s preliminary injunction that had been barring enforcement of the law for more than a year. Monday’s decision, then, will allow the law to take effect.

[Update, Aug. 28: Lawyers representing the challengers announced on Aug. 28 that they will be seeking en banc review — review from the full court — of the three-judge panel’s decision by Sept. 11. The request will put the issuance of the mandate in the case on hold until the court decides whether to take up the en banc review, a move that means the injunction will remain in place until such time. ]

The 59-page ruling from a three-Trump-appointee panel followed full briefing, as well as oral argument in November 2022, on Alabama’s appeal of a preliminary injunction that had been entered against the state by the district court. In its injunction, the district court halted enforcement of of the parts of the law that criminalized “[p]rescribing or administering“ puberty blockers or hormones (Sections 4(a)(1)–(3) of the Alabama law) as part of medical treatment addressing gender dysphoria.

The appeals court ultimately held that the district court’s preliminary injunction was “an abuse of discretion,” because, in Judge Barbara Lagoa’s opinion for the appeals court, the district court used the wrong standards for reviewing the case. She concluded for the court Alabama “is exceedingly likely to satisfy“ what the appeals court held was the correct standard — rational basis.

Applying that extremely relaxed standard, the appeals court overturned the district court ruling on both of its stated grounds for issuing the injunction.

U.S. District Judge Liles Burke, another Trump appointee, had granted a preliminary injunction in May 2022 after finding that the plaintiffs were likely to succeed in their lawsuit on two grounds — both of which several other courts have since also found justify injunctions against other states’ similar laws.

First, Burke found that the ban likely violated the due process rights of parents “to direct the medical care of their children” and, more specifically, “to treat their children with transitioning medications subject to medically accepted standards.” That subjected the law to strict scrutiny, making it presumptively unconstitutional. Second, he found the ban likely violated the equal protection rights of the minors because “the Act places a special burden on transgender minors because their gender identity does not match their birth sex.” That subjected the law to intermediate scrutiny, forcing the state to show a heightened justification for the law. On both fronts, he found the law was likely unconstitutional.

On Monday, Lagoa — joined by Judges Andrew Brasher and U.S. District Judge Jean-Paul "J. P." Boulee (sitting by designation) — held that neither “heightened scrutiny” ruling was likely correct. As such, “rational basis” review likely applied and the law would likely be upheld under that deferential review. In light of that, the appeals court vacated the injunction on both grounds.

What happened?

On the due process front, the appeals court focused on the more specific claim — the claimed right for parents “to treat their children with transitioning medications subject to medically accepted standards” — and held that parents likely have no such right.

Specifically, Lagoa focused on the lack of historical pedigree for such a claim, citing — for the first, but not last, time — to Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court decision overturning the right to an abortion — for the principle that courts should be “reluctant” to recognize rights not explicitly mentioned in the Constitution and that history and tradition should be the guideposts for that determination.

From there, it is a fait accompli:

Although there are records of transgender or otherwise gender nonconforming individuals from various points in history, the earliest-recorded uses of puberty blocking medication and cross-sex hormone treatment for purposes of treating the discordance between an individual’s biological sex and sense of gender identity did not occur until well into the twentieth century. Indeed, the district court’s order does not feature any discussion of the history of the use of puberty blockers or cross-sex hormone treatment or otherwise explain how that history informs the meaning of the Fourteenth Amendment at the time it was ratified—July 9, 1868.

While the opinion goes on to discuss parental rights cases in more detail, this was where Lagoa made clear the court’s antipathy to the plaintiffs’ claims on this front.

As to equal protection, the court first distinguishes what, for it, are the two key cases: the Supreme Court’s Bostock v. Clayton County decision, holding that the definition of sex discrimination in Title VII of the Civil Rights Act of 1964 includes sexual orientation discrimination and gender identity discrimination, and the Eleventh Circuit’s 2011 decision in Glenn v. Brumby, which held that Vandy Beth Glenn’s equal protection claim succeeded because the anti-transgender employment discrimination she faced was based on sex stereotyping.

Here, Lagoa first wrote that, “[b]ecause Bostock … concerned a different law (with materially different language) and a different factual context, it bears minimal relevance to the instant case.” Then, as to Glenn’s equal protection claim, Lagoa shifted, writing that “while Brumby did involve the same law at issue here—the Equal Protection Clause—it discussed that law as applied to a particular factual scenario … [t]hat is not the scenario presented here.” (The United States had also weighed in, arguing in opposition to the law. Lagoa dismissed the Justice Department’s transgender-status claim, arguing that the Eleventh Circuit has previously expressed “grave doubt” that transgender status merits heightened scrutiny.)

With those key cases pushed aside, Lagoa made a statement that was both conclusory and, effectively, conclusive.

Insofar as section 4(a)(1)–(3) involves sex, it simply reflects biological differences between males and females, not stereotypes associated with either sex.

It is at this point that Dobbs returns — and plays a key role in restricting transgender people’s ability to seek medical treatment. “[J]ust last year,” Lagoa wrote, “the Supreme Court explained that ‘[t]he regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.”’”

The nesting doll of quotes there takes us from Monday’s decision of the Eleventh Circuit, back to last year’s Dobbs decision, and then all the way back to a 1974 Supreme Court case, Geduldig v. Aiello. (In Geduldig, the court held, 6-3, that California could choose to exclude disabilities resulting from pregnancy from coverage under a disability fund without violating equal protection.)

In 2023, that means, as far as Lagoa and her fellow judges are concerned, “the regulation of a course of treatment that only gender nonconforming individuals can undergo would not trigger heightened scrutiny unless the regulation were a pretext for invidious discrimination against such individuals.“ (Of course, it is exactly that.) Nonetheless, Lagoa continued, “[T]he district court did not find that Alabama’s law was based on invidious discrimination.” So, she moved on. (Nonetheless, it was an interesting aside — repeated twice — that likely will return in future litigation.)

With the constitutional claims dismissed by the Eleventh Circuit, Lagoa brought forward a quick note (a rote note?) that this decision is just leaving the matter to democracy:

Absent a constitutional mandate to the contrary, these types of issues are quintessentially the sort that our system of government reserves to legislative, not judicial, action.

That done, Lagoa concluded: “Because the district court reviewed the law under the wrong standard of scrutiny in connection with both claims, the issuance of the preliminary injunction constituted an abuse of discretion.”

Brasher concurred with Lagoa’s decision, writing separately to add that, while he ultimately agreed that rational basis applied in the equal protection challenge, he believed that Alabama still would have succeeded in defending its law at this stage even under heightened scrutiny review.

He wrote first about why he concluded the law does not classify minors based on sex, and, hence, appropriately only needs to meet rational basis review:

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,” Ala. Code § 26- 26-2(2), and those minors who want these drugs to treat a different condition.

Then, however, Brasher went on to detail that “even if the statute did discriminate based on sex, I think it is likely to satisfy intermediate scrutiny.” Specifically, he continued, this is so because, in his view, “the state probably has an ‘exceedingly persuasive justification’ for regulating these drugs differently when they are used to treat a discordance between an individual’s sex and sense of gender identity than when they are used for other purposes.”

This entire discussion from Brasher appeared to be focused directly at the conflicting ruling from the U.S. Court of Appeals for the Eighth Circuit upholding an injunction against a similar ban in Arkansas. (As Brasher oh-so-subtly put it, “Consider the Eighth Circuit’s decision in Brandt by & through Brandt v. Rutledge, 47 F.4th 661 (8th Cir. 2022).”)

---

What now?

Monday’s ruling was the first such ruling in a state’s favor on the merits of a preliminary injunction request or appeal.

In contrast, the 2-1 opinions from the U.S. Court of Appeals for the Sixth Circuit allowing enforcement of Tennessee and Kentucky’s bans on gender-affirming medical care for minors were initial rulings on requests for actions from the court while the preliminary injunction appeals are pending. The arguments on the appeals themselves are set for Sept. 1.

As with the Tennessee ruling, however, the Alabama ruling likely will have quick follow-up effects. Both Florida and Georgia are also within the Eleventh Circuit, so Monday’s ruling will be the precedent applicable to federal challenges in those states. Both of those states have laws that bar some gender-affirming medical care for minors — and have ongoing federal litigation (Florida and Georgia) where preliminary injunctions have been issued halting at least some applications of the laws.

Absent action from the full Eleventh Circuit or the Supreme Court to halt Monday’s ruling in some way, expect both Florida and Georgia officials to quickly argue that Monday’s ruling means that they should be able to enforce their bans as well.

[Update, 8:00 p.m. Aug. 22: Georgia officials asked the district court on Tuesday to reverse course, vacate its injunction, and allow the state officials to enforce the state's anti-transgender ban on hormone therapy for minors in light of Monday's Eleventh Circuit ruling upholding Alabama's similar ban. In response, the court ordered follow-up briefing on the request over the next week — meaning the injunction in Georgia remains in effect for now.]

[Update, 11:45 a.m. Aug. 23: Florida officials filed a notice of supplemental authority in Doe v. Lapado challenging Florida’s ban on Tuesday. They didn't make any request regarding what the court should do in response, but expect follow-up briefing.]

And, as to the challengers of Alabama’s law, Law Dork will be monitoring their next steps closely as well.

The bottom line is that Monday’s ruling makes things exponentially more difficult for trans youth in those states — and the ruling makes it exponentially more likely that this issue gets to the Supreme Court sooner rather than later.