A three-judge panel of the 11th Circuit U.S. Court of Appeals issued an order on August 21 vacating the preliminary injunction that District Judge Liles C. Burke had issued in May 2022 to temporarily blocked the enforcement of that portion of Alabama’s “Vulnerable Child Compassion and Protection Act” that makes it a crime to provide puberty blockers and cross-sex hormones to persons under the age of 19 for purposes of confirming their transgender identity. Eknes-Tucker v. Governor, State of Alabama, 2023 WL 5344981, 2023 U.S. App. LEXIS 21942 (11th Cir., Aug. 21, 2023), vacating 603 F. Supp. 3d 1131 (M.D. Ala. 2022). Judge Burke’s preliminary injunction was intended to preserve the status quo (availability of such treatments) while the case was being litigated.
Circuit Judge Barbara Lagoa, an appointee of President Donald J. Trump, wrote the opinion panel opinion, which was joined by Circuit Judge Andrew Brasher and District Judge Jean-Paul Boulee of the Northern District of Georgia, both also Trump appointees. District Judge Burke, who had issued the preliminary injunction, was also an appointee of President Trump. Judge Brasher also wrote a concurring opinion.
This ruling has a significance beyond Alabama, as district court judges in Florida and Georgia, whose rulings are subject to 11th Circuit review, have previously issued preliminary injunctions against similar laws in those states. The Florida and Georgia governments can now be expected to ask those judges to vacate their preliminary injunctions, and they might well do so.
The plaintiffs in the Alabama case, a group of transgender minors, their parents, and “other concerned individuals,” can ask the full twelve-member 11th Circuit bench to review this decision, but a grant of review seems unlikely, since seven of the active circuit judges are conservative Republican appointees, and “en banc” review requires a majority vote of the full circuit bench, which it is unlikely to receive.
There is already a split of federal circuit court opinion on the key legal issues involved in this decision, with the 8th Circuit having affirmed a preliminary injunction against Arkansas’s ban of gender-affirming care for minors, and the 6th Circuit haven taken a contrary view in a Tennessee case. A circuit split over questions of constitutional interpretation lays the groundwork for Supreme Court review, if the losing party before the court of appeals files a petition with the Supreme Court.
Because the 11th Circuit’s ruling is not a final decision on the merits, however, which now continues to discovery and possible trial, the plaintiffs have an important strategic decision to make: whether to try to get the preliminary injunction reinstated or whether instead to go through a trial and an appeal of a ruling on the merits before seeking to involve the Supreme Court. Because this ruling creates the immediate danger that minors receiving gender-affirming care in Alabama may now have to go out of state to continue it, the plaintiffs may decide that further immediate appeals are necessary.
Judge Burke’s preliminary injunction was premised on his conclusion that the law violates the due process rights of the parents and the equal protection rights of the transgender minors in violation of the 14th Amendment. He concluded that the liberty protected by the Due Process Clause includes the right of parents to provide gender-affirming care to their transgender children, and that the state’s law employs a classification based on sex and/or gender identity violating the Equal Protection Clause when it prohibits the use of puberty blockers or cross-sex hormones for the treatment of gender dysphoria but allows those medications to be used to treat premature or delayed puberty in cisgender minors. Under both constitutional provisions, he determined that “heightened” or “intermediate” scrutiny applied, putting the burden on the state to justify this intrusion upon individual rights by proving an important state interest that was substantially advanced by the law. Judge Burke found that the state’s arguments opposing the preliminary injunction failed to meet this test for purposes of ordering preliminary relief to preserve the status quo. But the 11th Circuit panel found that Judge Burke had applied the wrong constitutional analysis.
In their view, under the substantive due process theory as most recently held by the Supreme Court in Dobbs v. Jackson Women’s Health Organization (the 2022 abortion decision overruling Roe v. Wade), the liberty interested protected by the due process clause is limited to the rights expressly identified in the Bill of Rights (first ten amendments of the Constitution adopted in 1791) and those unwritten rights that were widely recognized when the 14th Amendment was adopted after the Civil War in 1867.
Judge Lagoa observed that the use of puberty blockers and cross-sex hormones for gender-affirming care was a late twentieth century phenomenon, so under the “historical” approach to recognizing protected liberty interests, there was no constitutional protection for the claimed parental rights so long as the state had a rational basis to enact the law. This is a lenient standard of judicial review that the court found was easily met in this case by the legislative findings recited in the statute, many of which were sharply refuted just a day earlier by a federal court in Georgia that issued a preliminary injunction against that state’s ban, which is now likely to be vacated on appeal unless the district judge agrees to do so in response to this 11th Circuit opinion. Judge Lagoa observed that the plaintiffs had presented no historical evidence in support of their due process claim, and Judge Burke had not discussed the issue in his May 2022 preliminary injunction order (which, to be fair, predated the Supreme Court’s decision in Dobbs).
As to the Equal Protection analysis, the 11th Circuit panel found that the Alabama statute does not establish a sex classification but, agreeing with Alabama’s attorneys, found that it established a classification by treatment and age, neither of which are suspect classifications. That is, the law forbids certain treatments for people below a certain age, regardless of whether they are male or female. As to the argument that the law discriminates because of gender identity, the panel noted recent 11th Circuit opinions expressing doubt whether gender identity is a “suspect” or “quasi-suspect” classification for equal protection purposes. They rejected the plaintiffs’ argument that the Supreme Court’s Bostock decision of 2020 decided this issue when it held that an employer who fires an employee for being transgender has discriminated because of sex within the meaning of Title VII of the Civil Rights Act of 1974. Judge Lagoa insisted that this ruling was irrelevant to the case now before the court, as it turned on interpretation of the particular wording of an employment discrimination statute, not a constitutional provision. Unlike Title VII, the Equal Protection Clause expressly states only a generalized requirement that states afford all their residents “the equal protection of the laws,” the meaning of which is left to judicial interpretation. And neither the Supreme Court nor the 11th Circuit has yet addressed the question of whether laws banning gender-affirming care for minors violate equal protection, thus undercutting Judge Burke’s conclusion that plaintiffs had shown a substantial likelihood of prevailing on the merits – a required element to support a preliminary injunction against the enforcement of a statute.
As with the due process issue, the court ruled that the equal protection issue did not require “heightened” or “strict” scrutiny and that the state could rationally decide to forbid such treatments to transgender minors as part of its power to protect the health and welfare of children against the risks incident to gender-affirming care. Alabama’s “legislative findings” in the statute emphasize risks without acknowledging benefits, and as the Georgia district court found on August 20, legislatures that have passed these bans have exaggerated the risks and failed to give weight to the benefits that parents have described.
Judge Brashers’ concurring opinion, while agreeing with the other members of the panel that the “rational basis” test is the correct test for this case, argued that the statute could even survive heightened scrutiny, in light of the important role of the state in protecting the health and welfare of children and the legislative findings spelled out in the statute concerning the risks of gender-affirming care.
The plaintiffs are represented by pro bono attorneys from King & Spalding working with GLBTQ Legal Advocates and Defenders, the Southern Poverty Law Center, the National Center for Lesbian Rights, and the Human Rights Campaign Foundation. The court received numerous amicus briefs including one backing plaintiffs from the major medical professional associations and one backing the state of Alabama from other states that have enacted similar laws.