Alabama Gets Go-Ahead to Enforce Minors’ Transgender Care Ban

Alabama’s ban on certain gender-affirming care for minors will take effect while an appeals court decides whether all its active judges will hear arguments in the case.

In a one-page order, the US Court of Appeals for the Eleventh Circuit on Thursday halted an injunction that had prevented the state from enforcing the law. The provision was the second in the nation to bar the use of puberty-blocking drugs and cross-sex hormones for treating gender dysphoria in young people. There are now 22 states that prohibit some form of gender-affirming care.

The appeals court didn’t give its reasons for staying the order, which is on appeal from the US District Court for the Middle District of Alabama.

A three-judge panel in August held that the ban should be allowed to take effect because the transgender minors, their parents, and medical providers who challenged it weren’t likely to win on their claim that the provision violates the 14th Amendment’s equal protection clause. The law wasn’t entitled to heightened constitutional scrutiny because it didn’t discriminate on the basis of sex, and it passed a more-lenient “rational basis” test, the panel said.

The plaintiffs asked the court in September 2023 to grant rehearing en banc, in which all the court’s active judges would take up the issue. The request vacated the panel decision, reviving the injunction.

Alabama, in November 2023, requested that it be allowed to enforce the ban while the court considers the petition for rehearing.

An appeal on the merits of Arkansas’ first-in-the-country ban will be heard by all the judges in the US Court of Appeals for the Eighth Circuit, and the Seventh, Ninth, and Tenth circuits will hear soon hear preliminary injunctions-stage arguments on similar laws in Indiana, Idaho, and Oklahoma.

The Sixth Circuit, using reasoning similar to that of the Eleventh Circuit panel, lifted injunctions against bans in Kentucky and Tennessee in September. The plaintiffs in those cases have asked the US Supreme Court to review the issue.

King & Spalding LLP, Lightfoot Franklin & While LLC, the National Center for Lesbian Rights, the Human Rights Campaign Foundation, the Southern Poverty Law Center, and GLBTQ Advocates & Defenders represent the plaintiffs. The Alabama Attorney General’s Office and Spero Law LLC represent the state.

The case is Eknes-Tucker v. Gov., Ala., 11th Cir., No. 22-11707, stay granted 1/11/24.