In an excellent ruling yesterday (in Eknes-Tucker v. Alabama), a unanimous Eleventh Circuit panel greenlighted an Alabama law that bars providing puberty blockers or cross-sex hormones to minors as treatment for gender dysphoria. The panel ruled that the plaintiff parents did not have a substantive due process right to subject their children to puberty blockers and cross-sex hormones. (Slip op. at 24-37.) It also ruled that the Alabama law did not classify on the basis of sex and was “exceedingly likely” to satisfy rational-basis review under the Equal Protection Clause. (Slip op. at 37-48.) It therefore vacated a preliminary injunction that a district judge had imposed in May 2022.
Judge Barbara Lagoa wrote the panel opinion, which Judge Andrew Brasher and visiting district judge J.P. Boulee joined. Judge Brasher also wrote a concurring opinion in which he spelled out why the law would also satisfy intermediate scrutiny.
The panel ruling—which is consistent with a recent Sixth Circuit ruling—should mean that an injunction that a district court entered against a similar Florida law in June will also be vacated. (The district court in the Florida case relied on flimsy statutory grounds in addition to the Equal Protection Clause.) It should also mean that the preliminary injunction that a district judge entered two days ago against a similar Georgia ban on cross-sex hormones for minors with gender dysphoria should be vacated forthwith.
I summarize here key parts of Judge Lagoa’s opinion. (I won’t clutter my summary with quotation marks and ellipses, but I of course draw heavily from the opinion.)
Substantive due process. The use of “transitioning medications subject to medically accepted standards” is not “deeply rooted” in our nation’s history and tradition. The earliest recorded uses of puberty blockers and cross-sex hormones to treat gender dysphoria did not occur until well into the 20th century. The general parental right of parents (under Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)) to make decisions concerning the care, custody, and control of their children pertains largely to issues of education, religion, or custody and does not extend to a right to direct a particular medical treatment that is prohibited by state law.
There has been no showing that adults have a fundamental right to obtain puberty blockers and cross-sex hormones for themselves. It would make little sense for adults to have a parental right to obtain these drugs for their children when they can’t establish that they have a personal right to obtain the same drugs for themselves.
Equal protection. The law does not discriminate on the basis of sex. It does not establish an unequal regime for males and females. And it refers to sex only because the drugs for gender dysphoria are different for males and females. (E.g., females are given testosterone and males are given estrogen.)
The law also does not classify on the basis of gender nonconformity. It simply reflects biological differences between males and females. Nor does the law’s relationship to transgender status warrant heightened scrutiny. It is therefore subject to deferential rational-basis review.
Some observations of my own: The idea that there is a constitutional right to a medical treatment that meets whatever the current medically accepted standards are makes no sense and would have radical implications, all the more so at a time when the medical establishment has been deeply corrupted. Depending on the current state of medical opinion, such a right would trump state laws on abortion and on physician-assisted suicide. As Tennessee pointed out in the Sixth Circuit case, European doctors, who previously treated minors with puberty blockers and cross-sex hormones, now deeply disagree with the American medical establishment’s freewheeling embrace of such treatments. And even the American Academy of Pediatrics, while continuing to endorse these treatments, has recently called for a closer look at the evidence of their effectiveness.