A fiercely divided federal appeals court on Wednesday refused to reconsider a ruling that backed Alabama’s ban on hormone therapy and puberty blockers for minors.
The decision by the full 11th U.S. Circuit Court of Appeals effectively kept in place a January ruling by a three-judge panel that overturned a preliminary injunction a district judge had issued blocking the Alabama law.
And it could be important for a legal battle over a Florida law that prevents minors from receiving hormone therapy and puberty blockers to treat gender dysphoria. At least in part, that is because the Atlanta-based appeals court handles cases from Florida, along with Alabama and Georgia.
Wednesday’s single-paragraph order in the case known as Eknes-Tucker v. Governor of the State of Alabama was accompanied by sharply worded and lengthy opinions on both sides of the issue.
The law makes it a felony punishable by up to 10 years in prison to treat people under 19 with puberty blockers or hormones to help affirm their gender identity. It also bans gender-affirming surgeries for minors.
Judge Barbara Lagoa, who wrote the panel decision backing the Alabama law, said in an opinion that "whether puberty blockers and cross-sex hormones qualify as 'life-saving' treatment — or even 'medical care' — is a policy question informed by scientific, philosophical and moral considerations."
But Judge Robin Rosenbaum, joined by Judges Jill Pryor and Adalberto Jordan, warned that the panel ruling "strips every parent in this circuit of their fundamental right" to access modern medical care for their children.
Lawyers for plaintiffs in the Alabama lawsuit asked for a full court, or en banc, rehearing of the panel’s August 2023 decision. Wednesday’s order did not detail the positions of all 11 judges who took part in the decision to deny rehearing.
But Chief Judge William Pryor was in the majority and wrote an opinion that focused in part on “the doctrine of substantive due process,” which he warned “can empower judges to ‘usurp’ authority that the Constitution leaves to elected representatives,” referring to a U.S. Supreme Court ruling in a case known as Dobbs v. Jackson Women’s Health Organization that overturned decades of legal precedent about abortion rights.
“A right or liberty must be ‘deeply rooted’ in our ‘history and tradition’ to be immune from legislative encroachment,” Pryor wrote, again referring to previous court rulings.
“Difficult questions of morality, parental rights, and medicine are properly left to democracy, and we should not pretend that the Due Process Clauses give unelected judges the authority to second-guess public policy,” he wrote.
In a lengthy concurring opinion, Lagoa, a former Florida Supreme Court justice, expounded on why the three-judge panel was correct to conclude that the plaintiffs “failed to establish the existence of a fundamental right” to make decisions about transgender medical care.
She pointed to part of the panel ruling that found U.S. District Judge Liles Burke’s order blocking the Alabama law “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."
Lawyers for the plaintiffs argued that the due process rights in the 14th Amendment gave parents the right to make decisions about their children’s medical treatment. Four dissenting judges Wednesday, Jill Pryor, Jordan, Rosenbaum and Charles Wilson, argued that the appellate court should have addressed the issue.
The panel’s August 2023 ruling “is dangerous and wrong,” Rosenbaum wrote.
“Make no mistake: while the panel opinion continues in force, no modern medical treatment is safe from a state’s misguided decision to outlaw it almost regardless of the state’s reason. Worse still, if a state bans a post-1868 treatment, no patient has legal recourse to provide their child with that necessary, life-saving medical care in this Circuit. And if an individual can’t access a medical treatment because of their sex or transgender status, they are similarly without recourse,” she wrote.
In a dissent, Jordan wrote that the ruling in the Alabama case “necessarily means that the fundamental right of parents to obtain medical treatment for their children extends only to procedures and medications that existed in 1868, and not to modern advances like the polio vaccine (developed in the 1950s), cardiac surgery (first performed in 1983), organ transplants (first successfully completed in 1954), and treatments for cancer like radiation (first used in 1899) and chemotherapy (which started in the 1940s).”
The lawyers for the plaintiffs said they're not giving up: “We will continue to challenge this harmful measure and to advocate for these young people and their parents. Laws like this have no place in a free country.”
Wednesday’s divided ruling came after a panel of the court on Monday issued a stay of a ruling by U.S. District Judge Robert Hinkle that blocked restrictions in a Florida law that banned puberty blockers and hormone therapy for children and made it harder for transgender adults to access medical care. The stay effectively means the restrictions can take effect while the appeals court considers an underlying appeal of Hinkle’s decision.
A panel of the court on Aug. 22 also blocked a new federal rule about sex-based discrimination in education programs while a legal battle continues to play out.
Shannon Minter, legal director for the National Director for Lesbian Rights, said the Atlanta-based court is “really in the spotlight right now,” calling the majority’s ruling Wednesday “absurd and dangerous.”
“Are they going to function like a court and follow their own law, or are they just going to rule based on anti-transgender bias?” Minter, whose group is among the organizations representing plaintiffs in the Alabama case, told The News Service of Florida.
Florida and Alabama are among 25 Republican-led states that have passed laws and policies targeting gender-affirming care for children and adults. The U.S. Supreme Court has agreed to take up a challenge to a Tennessee law restricting hormone therapy and puberty blockers for adolescents.
The Supreme Court “has long recognized parents’ fundamental right over their children,” Minter said.
“This is what happens when courts allow states to target vulnerable minorities,” Minter said of Wednesday’s ruling. “Yes, the intention is to target those minorities, but then they create bad law for everyone.”
Information from the Associated Press was used in this report.
