Eleventh Circuit Holds That Alabama Ban on Transgender Procedures on Minors Can Go in Effect

From today's decision in Eknes-Tucker v. Marshall, by Judges Barbara Lagoa, joined by Judge Andrew Brasher and District Judge J.P. Boulee (N.D. Ga.):

[S]ection 4(a)(1)–(3) of Alabama's Vulnerable Child Compassion and Protection Act … states that "no person shall engage in or cause" the prescription or administration of puberty blocking medication or cross-sex hormone treatment to a minor "for the purpose of attempting to alter the appearance of or affirm the minor's perception of his or her gender or sex, if that appearance or perception is inconsistent with the minor's sex." Thus, section 4(a)(1)–(3) makes it a crime in the State of Alabama to take part in providing puberty blockers or cross-sex hormone treatment to a minor for purposes of treating a discordance between the minor's biological sex and sense of gender identity.

Shortly after the Act was signed into law, a group of transgender minors, their parents, and other concerned individuals challenged the Act's constitutionality, claiming that it violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment…. [W]e hold that the district court abused its discretion in issuing [a] preliminary injunction [against the Act] …. 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." Nor have they shown that section 4(a)(1)–(3) classifies on the basis of sex or any other protected characteristic….

[T]he Supreme Court has instructed courts addressing substantive due process claims to "engage[] in a careful analysis of the history of the right at issue" and be "'reluctant' to recognize rights that are not mentioned in the Constitution." … [T]he district court determined that the "right to treat [one's] children with transitioning medications subject to medically accepted standards" is one of the substantive rights guaranteed by the Due Process Clause and that, therefore, section 4(a)(1)–(3) is subject to strict scrutiny. But the use of these medications in general—let alone for children—almost certainly is not "deeply rooted" in our nation's history and tradition….

Rather than perform any historical inquiry specifically tied to the particular alleged right at issue, the order on appeal instead surmises that the "right to treat [one's] children with transitioning medications subject to medically accepted standards" falls under the broader, recognized fundamental right to "make decisions concerning the care, custody, and control of [one's] children." However, there is no binding authority that indicates that the general right to "make decisions concerning the care, custody, and control of [one's] children" includes the right to give one's children puberty blockers and cross-sex hormone treatment.

The fundamental right to "make decisions concerning the care, custody, and control of [one's] children," as it is recognized today, traces back in large part to Meyer v. Nebraska (1923). There, the Supreme Court held that a Nebraska law restricting the teaching of foreign languages violated the Due Process Clause. In doing so, the Court recognized that the "liberty" guaranteed by the Due Process Clause includes the right "to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, … and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness of free men."

The Supreme Court elaborated on the fundamental liberty of parents two years later in Pierce v. Society of the Sisters (1925). That case addressed Oregon's Compulsory Education Act of 1922, which mandated that parents send their school-aged children to public school (as opposed to private school). Citing its decision in Meyer, the Court concluded that the Oregon law violated the Due Process Clause on the basis that it "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control."

Meyer and Pierce ushered in a line of Supreme Court decisions that recognized, and further defined the contours of, parents' liberty interest to control the upbringing of their children. The majority of those cases, however, pertain to issues of education, religion, or custody. The Supreme Court's most extensive discussion of parents' control over the medical treatment received by their children came in Parham v. J. R. (1979).

In Parham, a group of minors brought a Due Process challenge to Georgia's procedures for committing children to mental hospitals. At the time, Georgia law provided for the voluntary admission of children upon application by a parent or guardian. Thus, the question at issue was whether the minors had a procedural due process right to greater procedural safeguards, e.g., a judicial hearing, before their parents could commit them…. Parham was concerned about the procedures a state must afford a child prior to institutionalization when the parent believes such treatment—which is not only lawful but provided by the state itself—is necessary. Notably, Parham does not at all suggest that parents have a fundamental right to direct a particular medical treatment for their child that is prohibited by state law. Parham therefore offers no support for the Parent Plaintiffs' substantive due process claim….

[As to the Equal Protection Clause], a government policy that distinguishes on the basis of sex is permissible … "only if it satisfies intermediate scrutiny." … In this case, the district court first held that section 4(a)(1)–(3) of the Act classifies on the basis of gender nonconformity and therefore classifies on the basis of sex. In determining that section 4(a)(1)–(3) classifies on the basis of gender nonconformity, the district court reasoned that section 4(a)(1)–(3) "prohibits transgender minors—and only transgender minors—from taking transitioning medications due to their gender nonconformity." …

[W]e reject the view that section 4(a)(1)–(3) amounts to a sex-based classification subject to intermediate scrutiny. As mentioned, one of the Minor Plaintiffs' arguments is that section 4(a)(1)–(3) directly classifies on the basis of sex because it "uses explicitly sex-based terms to criminalize certain treatments based on a minor's 'sex.'" Of course, section 4(a)(1)–(3) discusses sex insofar as it generally addresses treatment for discordance between biological sex and gender identity, and insofar as it identifies the applicable cross-sex hormone(s) for each sex—estrogen for males and testosterone and other androgens for females. We nonetheless believe the statute does not discriminate based on sex for two reasons.

First, the statute does not establish an unequal regime for males and females. In the Supreme Court's leading precedent on gender-based intermediate scrutiny under the Equal Protection Clause, the Court held that heightened scrutiny applies to "official action that closes a door or denies opportunity to women (or to men)." Alabama's law does not distinguish between men and women in such a way. Instead, section 4(a)(1)–(3) establishes a rule that applies equally to both sexes: it restricts the prescription and administration of puberty blockers and cross-sex hormone treatment for purposes of treating discordance between biological sex and sense of gender identity for all minors.

Second, the statute refers to sex only because the medical procedures that it regulates—puberty blockers and cross-sex hormones as a treatment for gender dysphoria—are themselves sexbased. The Act regulates medical interventions to treat an incongruence between one's biological sex and one's perception of one's sex. The cross-sex hormone treatments for gender dysphoria are different for males and for females because of biological differences between males and females—females are given testosterone and males are given estrogen. With regards to puberty blockers, those medications inhibit and suppress the production of testosterone in males and estrogen in females. For that reason, it is difficult to imagine how a state might regulate the use of puberty blockers and cross-sex hormones for the relevant purposes in specific terms without referencing sex in some way….

The Minor Plaintiffs' other sex-based argument is that section 4(a)(1)–(3) indirectly classifies on the basis of sex by classifying on the basis of gender nonconformity…. This is the position that the district court adopted, citing Bostock …. Bostock dealt with Title VII of the Civil Rights Act of 1964, in the context of employment discrimination…. [T]he Court in Bostock relied exclusively on the specific text of Title VII. The Court "proceed[ed] on the assumption that 'sex' refer[s] only to biological distinctions between male and female." But the Court reasoned that the combined ordinary meaning of the words "because of," "otherwise discriminate against," and "individual" led to the conclusion that Title VII makes "[a]n individual's homosexuality or transgender status … not relevant to employment decisions."

The Equal Protection Clause contains none of the text that the Court interpreted in Bostock. It provides simply that "[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws." Because Bostock therefore concerned a different law (with materially different language) and a different factual context, it bears minimal relevance to the instant case….

To be sure, section 4(a)(1)–(3) restricts a specific course of medical treatment that, by the nature of things, only gender nonconforming individuals may receive. But just last year, 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.'" Dobbs. By the same token, 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. And the district court did not find that Alabama's law was based on invidious discrimination.

We similarly reject the United States' view that section 4(a)(1)–(3) is subject to heightened scrutiny because it classifies on the basis of transgender status, separate from sex. As we recently explained, "we have grave 'doubt' that transgender persons constitute a quasi-suspect class," distinct from sex, under the Equal Protection Clause. Even if they did, for the reasons discussed with respect to gender nonconformity, section 4(a)(1)–(3)'s relationship to transgender status would not trigger heightened scrutiny. Chiefly, the regulation of a course of treatment that, by the nature of things, only transgender individuals would want to undergo would not trigger heightened scrutiny unless the regulation is a pretext for invidious discrimination against such individuals, and, here, the district court made no findings of such a pretext. For these reasons, we conclude that section 4(a)(1)–(3)'s relationship to transgender status does not warrant heightened scrutiny….

Judge Brasher concurred, elaborating further on why he thought the classification here wasn't subject to heightened scrutiny under the Equal Protection Clause, and would in any event pass such scrutiny.