More Courts Uphold Ban on ‘Gender Affirming Care’ for Minors. Is Supreme Court the Next Stop?
Activist judges who believe the propaganda on “lifesaving” “gender-affirming” care for minors are weeping into their lattes this month as a second federal appellate court has just upheld a duly enacted state law banning these practices for children.
A few short weeks after the U.S. Court of Appeals for the 6th Circuit upheld Tennessee’s law banning “gender-affirming” care for minors in the state, the 11th Circuit followed suit and upheld Alabama’s law prohibiting the same.
In an opinion for the unanimous three-judge panel written by Judge Barbara Lagoa, the court overturned a lower court order that had enjoined a portion of Alabama’s Vulnerable Child Compassion and Protection Act.
The act makes it a felony, punishable to up to 10 years in prison, to administer “gender-affirming care” to minors — including chemical castration and radically transformative body modification procedures.
The state’s appeal from the lower court’s decision halting the law centered specifically on section 4(a)(1)-(3), the portion of the law banning the administration of puberty blockers or “cross-sex hormones.”
Lower Court Abused Its Discretion
But as the 6th Circuit did in its decision upholding the Tennessee law, the 11th Circuit wasted no time in both overturning the lower court decision and going so far as to hold that the lower court had abused its discretion in applying the wrong standard of judicial review.
Lagoa wrote, “The plaintiffs have not presented any authority that support the existence of a constitutional right to ‘treat [one’s] children with transitioning medications subject to medically accepted standards.’ Nor have they shown that [the law] classifies on the basis of sex or any other protected characteristic. Accordingly, section 4(a)(1)-(3) is subject only to rational basis review.”
There are three standards for judicial review when a court must determine the constitutionality of a particular law: the rational basis test, the intermediate scrutiny test, and the strict scrutiny test.
The intermediate and strict scrutiny tests are more restrictive standards of review than rational basis, and more difficult for a state to satisfy. Rational basis, however, is used when no fundamental right (such as free speech, voting, or religion) or suspect classification (such as race or national origin) is at issue. Under this standard, the state must simply show that the law is rationally related to a legitimate governmental interest.
This standard, the 11th Circuit held, was easily satisfied by the state of Alabama, and the state’s regulation of the use of puberty blockers and cross-sex hormone treatments for minors was to be afforded a “strong presumption of validity.”
A Right for Parents to Mutilate Their Children in the 14th Amendment? No.
The court continued with a discussion of whether the right to treat one’s children with puberty blockers and cross-sex hormones could be found within the more general 14th Amendment right to direct the upbringing of one’s children — as plaintiffs had claimed.
The court found it did not.
Citing the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision of last June, the court noted that in order to determine whether a claimed right is one of the “substantive rights” guaranteed by the 14th Amendment, “Courts must look to whether the right is ‘deeply rooted in [our] history and tradition’ and ‘essential to our Nation’s scheme of ordered liberty.’” But, it continued, “the use of these medications in general — let alone for children — almost certainly is not ‘deeply rooted’ in our nation’s history and tradition.”
Because the judges were being asked to break new ground in the field of substantive due process under the 14th Amendment, the court wrote that it was bound to exercise the “utmost care.” This, Lagoa wrote, the lower court had not done.
In fact, she pointed out that the lower court had “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,” and then applied the wrong judicial review standard of this new “right,” to boot.
As far as the plaintiffs’ argument that the Alabama law was subject to intermediate scrutiny because it made sex-based classifications (relative to “gender nonconformity”), the court was unconvinced.
While the lower court had applied the Supreme Court’s 2020 decision, Bostock v. Clayton County, to equate “gender nonconformity” with “sex,” the appellate court disagreed, noting that the Alabama law treated both sexes equally. Because it “classifie[d] on the bases of age and procedure, not sex or gender nonconformity, [it was] therefore not subject to any heightened scrutiny.”
The court also slapped down the lower court’s application of Bostock — a case with a limited holding, and one that solely concerned the prohibition against sex discrimination in employment found in Title VII of the Civil Rights Act.
Lagoa wrote, “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.’”
She added, “Because Bostock therefore concerned a different law (with materially different language) and a different factual context, it bears minimal relevance to the instant case.”
Victories in Other States
Within a few short days of the 11th Circuit’s decision, a Missouri state court upheld that state’s own SAFE (Save Adolescents from Experimentation) Act — the first trial court victory to date in cases interpreting laws that ban the mutilation of children in the name of “gender-affirming” care.
In declining the plaintiffs’ request to halt the law, Judge Stephen R. Ohmer ruled, “The science and medical evidence is conflicting and unclear” and that “the evidence raises more questions than answers.”
Nearly simultaneously, however, a Texas state court halted the operation of that state’s “transgender” medical procedures ban. The state immediately filed an appeal to the Texas Supreme Court, which temporarily halts the trial court’s ruling. The Texas attorney general’s office responded to the trial court’s decision by saying that it would “continue to enforce the laws duly enacted by the Texas Legislature and uphold the values of the people of Texas.”
Still pending before a federal trial court in Florida is a challenge to that state’s “gender-affirming” medicine ban for minors as adopted by the Florida boards of Medicine and Osteopathic Medicine. That case should now be relatively easy to decide since that ban is nearly identical to the Alabama law that the 11th Circuit just upheld.
In a previous case, Adams v. St. Johns County School Board, the 11th Circuit determined (again in an opinion written by Lagoa) that a school’s sex-segregated bathroom policy was not a violation of the Constitution because, just as the Alabama law does, it treated all students equally, regardless of sex.
This is good news for the state of Florida as officials chart a path forward in defending their “gender-affirming” medical ban.
With 22 states having enacted restrictions on “transgender” medical interventions for minors, and with courts in different states and different federal circuits reaching different conclusions in terms of upholding or overturning such laws, the battle to protect the minds and bodies of adolescent children seems ultimately destined for the Supreme Court.
Sarah Parshall Perry is a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
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