Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Welcome
Go
Free Newsletter Sign Up

Alabama Ban on Trans Kids’ Medical Care Gets Partial Pause (1)

May 14, 2022, 11:24 AMUpdated: May 16, 2022, 1:42 PM

The state of Alabama is barred, for now, from enforcing part of its newly-enacted law criminalizing gender-affirming medical care for children, as the Middle District of Alabama granted a preliminary injunction on Friday in a case challenging the law’s constitutionality.

A partial injunction allowing transitioning medications is appropriate because the parent plaintiffs have a right to direct medical care of their children, the US District Court for the Middle District of Alabama ruled.

The state is enjoined from enforcing the portion of the Alabama Vulnerable Child Compassion and Protection Act that restricts minors from using puberty blockers and hormone therapies pending trial, Judge Liles C. Burke said.

The parents suing on behalf of their transgender children are likely to succeed on the merits of their claim that the provision violates their due process rights, Burke said.

Burke rejected the state’s argument that the parents have no right to treat their kids with “experimental medical procedures.”

The state produced no credible evidence that transitioning medications are experimental, he said.

The plaintiffs have shown, however, that at least 22 major medical associations in the US “endorse transitioning medications as well-established, evidence-based treatments for gender dysphoria in minors,” Burke said.

The children are also likely to succeed on their equal protection claims because the act amounts to a sex-based classification, he said.

Burke cited the recent Supreme Court ruling in a Title VII case that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The plaintiffs didn’t seek to enjoin other sections of the law. All other provisions of the act will therefore remain in effect, including a bar on sex-altering surgeries, a bar on school officials keeping certain gender-identity information of children secret from their parents, and a bar on school officials “encouraging or compelling children to keep certain gender-identity information secret from their parents,” Burke said.

The law, SB-184, makes it a crime to provide medical procedures or prescribe medications, including testosterone or estrogen, in order to “alter” a minor’s gender or delay puberty. The law carries a penalty of up to 10 years in prison and a $15,000 fine.

Gov. Kay Ivey (R) signed the measure into law April 8, 2022, and it took effect May 8, 2022.

The parents of four transgender children, a pastor who counsels families of transgender kids, a pediatrician, and a clinical child psychologist filed the lawsuit April 19.

The suit alleges that the law violates the rights of parents to make decisions about the care, custody, and control of their children. It also violates the US Constitution’s equal protection clause by singling out trans children and prohibiting them from obtaining necessary treatment based on their sex and transgender status, the suit says.

The law also unconstitutionally bars the plaintiffs from exercising their free speech—in the form of referrals, counseling or discussions related to medical care—that results in a minor receiving any of the proscribed treatments, the complaint alleges.

The suit also alleges the law is void for vagueness because it fails to explain what actions constitute “caus[ing]” any of the proscribed activities on a minor.

The US Department of Justice on April 29 sought to intervene in the case, asking the court to find that the law violates the equal protection clause, and to issue a temporary and permanent injunction against its enforcement.

Alabama and Arizona passed gender-affirming care bans this year. Arkansas passed a ban in 2021 over the governor’s veto, which is currently under an injunction issued July 21, 2021.

Lightfoot Franklin & White LLC, King & Spalding LLP, Southern Poverty Law Center, GLBTQ Legal Advocates & Defenders, and Human Rights Campaign Foundation represent the plaintiffs.

The Alabama Attorney General’s Office and Spero Law LLC represent the state.

The case is Eknes-Tucker v. Marshall, M.D. Ala., No. 22-cv-00184, 5/13/22.

(Story that ran May 14 updated to add additional reporting in paragraphs four through ten )

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com