Alabama families of transgender children seek review of gender-affirming care ban enforcement
Alabama families with transgender children asked a full appellate court Monday to review a decision that will let the state enforce a ban on treating minors with gender-affirming hormones and puberty blockers.
The families asked all of the judges of the 11th U.S. Circuit Court of Appeals to review a three-judge panel decision issued last month. The panel lifted a judge’s temporary injunction that had blocked Alabama from enforcing the law while a lawsuit over the ban goes forward.
The Alabama ban makes it a felony — punishable by up to 10 years in prison — for doctors to treat people under 19 with puberty blockers or hormones to help affirm a new gender identity. The court filing argues the ban violates parents’ longstanding and accepted right to make medical decisions for their children.
“Parents, not the government, are best situated to make medical decisions for their children. That understanding is deeply rooted in our common understanding and our legal foundations,” Sarah Warbelow, legal director at Human Rights Campaign, said Warbelow said.
While the 11th Circuit decision applied only to Alabama, it was a victory for Republican-led states that are attempting to put restrictions on gender-affirming care for minors. At least 20 states enacted laws restricting or banning gender-affirming care for minors.
The three-judge panel, in lifting the injunction, cited the U.S. Supreme Court ruling that returned the issue of abortion to the states. In weighing whether something is protected as a fundamental right under the due process clause, Judge Barbara Lagoa said “courts must look to whether the right is “deeply rooted in (our) history and tradition.”
“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,” Lagoa wrote.
Attorneys representing families who challenged the Alabama ban argued that was the wrong standard and could have sweeping ramifications on parents’ right to pursue medical treatments to schooling choices that did not exist when the 14th Amendment was ratified in 1868.
The Alabama attorney general’s office, in a separate court filing in district court, called the hearing request a “delay tactic” to try to keep the injunction in place.
In that filing, Steve Marshall asked for a stay to allow the state to begin enforcing the law immediately, saying Alabama will “suffer irreparable harm” if it’s not able to enforce its law.
Marshall’s office asked the court to rule on his motion by Sept. 22. When asked by AL.com how his office plans to enforce the law, Amanda Priest, Marshall’s communications director, said “the Office does not answer questions about how we intend to investigate and/or enforce any criminal law.”
For now, the injunction will remain in effect as the litigation proceeds to determine whether the plaintiff’s request is granted or if the court decides to grant Marshall’s stay.
While the injunction is in effect, Alabama families are still able to receive treatments and medications. After AL.com received reports that Walgreens was refusing to fill prescriptions after the August decision by the 11th circuit court, the pharmacy released the following statement:
“Whenever there is a legal change impacting operations in our stores, Walgreens updates our team members to ensure full compliance with the new laws. In this case, we have communicated that the preliminary injunction prohibiting enforcement is still in effect, and Walgreens pharmacies will continue to dispense these prescriptions.”