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Alabama’s Ban on Childhood Puberty Blockers and Cross-Sex Hormones Reinstated By Unanimous Appeals Court

Alabama’s Ban on Childhood Puberty Blockers and Cross-Sex Hormones Reinstated By Unanimous Appeals Court

Strikes down District Court injunction. Alabama law “makes it a crime 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.”

The U.S. Court of Appeals for the 11th Circuit has unanimously upheld Alabama’s prohibition against use of puberty blockers and cross-sex hormones to minors if based on gender identity confusion. To the extent there might be medical (as opposed to psychological) necessity, such procedures are allowed.

A District Court judge issued an injunction against the law.

From the Opinion, a description of the law:

This appeal centers around section 4(a)(1)–(3) of Alabama’s Vulnerable Child Compassion and Protection Act (the “Act”). Section 4(a)(1)–(3) of the 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.

The plaintiffs tried to portray the case as one about parental rights to treat their children medically. The Appeals Court rejected that argument:

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. As part of that lawsuit, the district court issued a preliminary injunction enjoining Alabama from enforcing section 4(a)(1)–(3) of the Act pending trial, having determined that the plaintiffs are substantially likely to succeed on both of the aforementioned claims. Specifically, as to the due process claim, the district court held that there is a constitutional right to “treat [one’s] children with transitioning medications subject to medically accepted standards” and that the restrictions of section 4(a)(1)–(3) likely impermissibly infringe upon that constitutional right. As to the equal protection claim, the district court held that section 4(a)(1)–(3) classifies on the basis of sex by classifying on the basis of gender nonconformity and likely amounts to unlawful discrimination under the intermediate scrutiny standard applicable to sexbased classifications.

On review, we hold that the district court abused its discretion in issuing this preliminary injunction because it applied the wrong standard of scrutiny. 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. Accordingly, section 4(a)(1)–(3) is subject only to rational basis review. Because the district court erred by reviewing the statute under a heightened standard of scrutiny, its determination that the plaintiffs have established a substantial likelihood of success on the merits cannot stand. We therefore vacate the preliminary injunction.

The medical community, which is almost completely corrupted on these issues, weighed in against the law in the District Court:

On April 29, 2022, the United States filed a motion to intervene, as well as its own motion for preliminary injunction similarly seeking to prevent enforcement of the Act. Shortly thereafter, fifteen states moved for leave to file an amicus brief in support of Alabama. That was followed by a group of at least twenty-two professional medical and mental health organizations jointly moving for leave to file an amicus brief in support of Plaintiffs. The district court ultimately granted the motion to intervene and the motions to file amicus briefs, giving the United States permission to participate in the preliminary injunction hearing and taking the amicus briefs under advisement.

I’ve witnessed the corruption of the medical establishment first hand. Almost every major medical group supported NY State’s racially discriminatory (against Whites) Covid therapeutic guidelines, and advocated for use of race as a legitimate treatment factor, in the lawsuit I brought to stop the practice.

The Court rejected the Substantive Due Process claim:

In sum, Plaintiffs’ assertion that the Constitution protects the right to treat one’s children with puberty blockers and crosssex hormone therapy is precisely the sort of claim that asks courts to “break new ground in [the] field [of Substantive Due Process]” and therefore ought to elicit the “utmost care” from the judiciary. See Collins, 503 U.S. at 125. The district court held that there is a specific right under the Constitution “to treat [one’s] children with transitioning medications subject to medically accepted standards,” but did so without performing any analysis of whether that specific right is deeply rooted in our nation’s history and tradition. Instead, the district court grounded its ruling in an unprecedented interpretation of parents’ fundamental right to make decisions concerning the “upbringing” and “care, custody, and control” of one’s children. See Pierce, 268 U.S. at 534–35; Troxel, 530 U.S. at 66. That was error. Neither the record nor any binding authority establishes that the “right to treat [one’s] children with transitioning medications subject to medically accepted standards” is a fundamental right protected by the Constitution. And, assuming it is not, then section 4(a)(1)–(3) is subject only to rational basis review—a lenient standard that the law seems to undoubtedly clear. Because the district court erroneously reviewed section 4(a)(1)–(3) with heightened scrutiny, its determination regarding the Parent Plaintiffs’ likelihood of success does not justify the preliminary injunction.

And also the Equal Protection claim:

Having carefully considered all of these positions, we agree with Alabama that section 4(a)(1)–(3) is best understood as a law that targets specific medical interventions for minors, not one that classifies on the basis of any suspect characteristic under the Equal Protection Clause. Section 4(a)(1)–(3) is therefore subject only to rational basis review—a standard that it almost undoubtedly satisfies for the reasons discussed. See supra Section III.A; see also Skrmetti, 73 F.4th at 419 (finding it “highly unlikely” that the plaintiffs could show that Tennessee’s substantially similar law “lacks a rational basis”). Because the district court erroneously departed from that standard, its assessment regarding the Minor Plaintiffs’ likelihood of success as to their equal protection claim cannot support the preliminary injunction.

I think the court was too timid here.


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This is what a victory looks like.

    leoamery in reply to Danny. | August 22, 2023 at 2:47 am

    Only because of the 4 judge panel, two were Big Don nominees and the third, a District Court judge on on 11C by designation was also a Big Don nominee.

    Judicial nominations matter. There are 5 sitting Circuit Judges on the 11C all nominated by Billyboy/The Won/Slowy. Put two of them on the panel, and the result would have been mighty different.

      leoamery in reply to leoamery. | August 22, 2023 at 2:49 am

      3 judges on the panel not 4. Sorry.

      Danny in reply to leoamery. | August 22, 2023 at 9:13 am

      Don’t worry typos are something we all do.

      I 100% agree which is why the senate is so important and why we can’t keep sacrificing the senate to Trump.

      2022 saw the Trump senate candidates all lose.

      Trump very much was on the ballot (especially in NH, PA, AZ, and WI) and the senate went left.

      We also can’t keep sacrificing Georgia senate seats to lies.

      Brian Kemp won, even if only for 10 more minutes Georgians are willing to vote Republican, they are not willing to vote Trump Republicans.

      If say we had run the governor of Arizona campaigning on his record, economic issues, and social issues instead of Blake Masters campaigning on Trump we would have won Arizona.

      Pick a Kemp instead of Trump backer in Georgia and we win that state to.

      Add in a real candidate for New Hampshire instead of one I think even people here could agree was a disgrace as a candidate…….

      In PA had we avoided dragging down the entire ticket with Mastriano who truly was a class by himself………

      In Michigan to be fair to Trump the alternative made some basic mistakes in starting his campaign that enabled Democrats to disqualify him, but he would have at a minimum made the race competitive instead of painting Michigan a dark shade of blue.

      I fully agree with you the senate couldn’t possibly matter more.

        jhkrischel in reply to Danny. | August 22, 2023 at 3:58 pm

        Kemp was compromised after he cheated Abrams the first time, and then let the 2020 cheat go through after his future son-in-law was murdered as further warning to him.

        He’s better than the Abramsosaurus, but he’s not a very effective governor when it comes to election integrity.

          You’re in Georgia, right, jh? Either way, I think there is something to your statement. Kemp has that good ole boy network smarminess to him that I (as a Southerner) find suspect. Likewise, I have my suspicions about what’s going on in Kentucky because it makes absolutely zero sense that KY keeps reelecting McConnell. I suspect there’s a Reid-type apparatus in the state, but I don’t live in KY and am not sure. I just know that it doesn’t make sense that a state that elects and re-elects Rand Paul ALSO approves of and keeps reelecting one of the slimiest establishment progressive Republican pols in the entire nation.

        walls in reply to Danny. | August 27, 2023 at 2:58 pm

        We can’t let the Democraps keep on cheating. Wake up, buddy.

The Gentle Grizzly | August 21, 2023 at 10:49 pm

Lupron was part of my prostate cancer treatment. I had the last shot in November of 2017. I still have side effects from it. But, it beats cancer.

    Ty Mr. Grizzly. What I read somewhere is that puberty blockers were actually developed to be used on minors to treat cancer. I didn’t realize that it was used for that reason on adults as well.

      The Gentle Grizzly in reply to amwick. | August 22, 2023 at 7:34 am

      Lupron, and its evil belly-shot cousin Elligard, are used to blocK testosterone as part of prostate cancer treatment. Killing off the T in turn weakens the cancer cells, making them easier to blast to death with radiation. In the olden days, one was CASTRATED to effect the same thing; that is not done anymore.

      I came through it all; the prostate cancer is gone, my latest PSA is 0.38 at age 74. But things don’t work anymore, and my libido is about gone. -shrug- It beats cancer.

      kyrrat in reply to amwick. | August 23, 2023 at 1:05 pm

      It was also developed to provide chemical castration to violent sexual offenders. That usage was stopped when it was determined to be ‘cruel and unusual punishment’.

This whole Trans thing for minors is a terrible injustice, it will be worse than Thalidomide.

JackinSilverSpring | August 21, 2023 at 11:21 pm

Several thoughts:
1. What a smack down of the district court by the appellate court.
2. If genitalia don’t determine sex, then why remove them?
3. Most children who are sexually confused will eventually achieve lucidity as to what their sex is; so what they really need to speed the process along is therapy, not surgery.

Once again the headlines (deliberately?) hide the fact that this law does not ban prescribing puberty blockers for children when they are medically indicated. It only bans them when the child is physically perfectly healthy, and is alleged to need them only for psychological or emotional reasons. Which is as it should be. Puberty blockers are a legitimate medical tool, and should continue to be used as such. Using them to “affirm” a child’s fantasies about being the opposite sex is not legitimate and should be banned.

    We can’t fit everything into the heading, so we will often put further clarification in the subheading. As here.

      Milhouse may be referring to the headlines in the lying media.

        Milhouse in reply to gibbie. | August 22, 2023 at 12:46 pm

        Yes. The news industry and the political types in the medical industry try to portray such bans as if they are interfering in necessary medical treatments. They’re not.

        There are cases where there is a genuine medical need to prevent a child from entering puberty. It would be wrong for a legislature to interfere with that. Thankfully, as far as I know no state has done so, or is considering doing so.

Thank you 11th Circuit

Steven Brizel | August 22, 2023 at 8:06 am

This is a great win. Hopefully it will be sustained if it goe further either by an enbanc review and SCOTUS

The law was carefully structured to allow Physicians to use these drugs/procedures when medically necessary. B/C it allowed for a narrow range of exceptions there wasn’t much of anything for opponents to hang their hat on to mount a challenge as there would have been with a total ban.

That is an important point and one to keep in mind and apply to legislation on other issues, particularly to abortion. As much as you or I may appreciate the simplicity of a total prohibition on abortion the majority of the public/electorate isn’t there. That being the case the legislation in the State Houses about abortion restrictions should proceed with the goal of enacting laws that provide max protection consistent with not setting up an easy way for opponents to get it overturned in CT or if by referendum rejected as too restrictive.

    gibbie in reply to CommoChief. | August 22, 2023 at 10:10 am

    Agreed. If women are willing to lie or doctor shop in order to kill their children, then be it on them.

      CommoChief in reply to gibbie. | August 22, 2023 at 11:58 am

      The other angle that may eventually come from this case is the distinction made between physical and mental in the application. If that distinction holds up for this why couldn’t that distinction also hold for abortion? Lots of abortions done based, at least in part, using mental health of the mother as the justification.

The state also should have won on balance of harms. If they lose, kids can start “treatment” later. If they win, you can’t undo what’s been done.

    Milhouse in reply to timmaguire42. | August 22, 2023 at 12:49 pm

    No, you can’t start treatment later. If the treatment is not started immediately, puberty will happen and it will be too late.

I think we can all agree, there is a big difference between thinking you might be gay and believing you were born in the wrong sex. You can figure out whether you’re gay or not and you’re still in a no harm, no foul situation. You decide you’re the wrong sex and start taking measures to change that, it’s irreversible. Not something you should rush in to and definitely no something a minor should be deciding without a lot of thought and guidance. Glad the judges got it right.

    Milhouse in reply to bflat879. | August 22, 2023 at 12:51 pm

    The trans lobby claims vociferously that these drugs are reversible, so if you decide they were a mistake you can go back and no harm will have been done. That would be great if it were true, but unfortunately it appears that it is not true.

      healthguyfsu in reply to Milhouse. | August 22, 2023 at 2:21 pm

      Post-pubertally, it is somewhat true (if using chemical means only).

      I think the trans lobby will eventually try to argue that puberty is also irreversible, so the intervention prevents an irreversible “error” in their biological programming.

      Whether that’s successful or not, it is a slippery slope for trans activists to admit that puberty leads to irreversible changes (because it essentially destroys the “trans woman taking T blockers doesn’t have an athletic advantage” argument)

      Gosport in reply to Milhouse. | August 22, 2023 at 3:31 pm

      Considering the trans lobby also promote continuing on to actual genital mutilation, breast removal, etc, after those gateway drugs their claims of reversibility are flat out lies.

Altering a child’s sex via mutilation will be viewed someday as the “lobotomy” of this era. A massive mistake with lasting damage.

I agree that the court was too timid. Again and again the court grounded its opinion based upon highly technical legal standards of review instead of aggressively addressing the true matter at hand: that the type of gender treatments banned by the law are based upon the welfare of the child, that there exists a mountain of evidence (and patient testimonials) that these treatments are experimental and can cause grievous and irreversible harm, that gender dysphoria (or confusion) is a psychological, not physical, disorder, that those medicals professionals and groups that opposed the law hardly represent the majority of medical opinion or science, that the state (and the court) has always enjoyed legal deference and the right to intervene against the wishes of parents where the welfare of the child is concerned, and on and on.

“To the extent there might be medical necessity” is no bar at all. It’s as effective as a not-a-ban on abortion giving “health of the mother” as an exception. Either loophole is wide enough to sail the Enterprise through.