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Alabama Claims Primacy Over Parents on Treating Transgender Kids

June 28, 2022, 5:24 PM

The state of Alabama asked the Eleventh Circuit to overturn a partial injunction against its recently enacted law criminalizing gender-affirming medical care for children, saying the state, not parents, has the authority to regulate the treatments.

Echoing the language of the recent US Supreme Court case overturning Roe v. Wade and the high court’s ruling restricting the states’ ability to ban concealed weapons, Alabama said “no one—adult or child—has a right to transitioning treatments that is deeply rooted in our Nation’s history and tradition,” in a brief filed Monday in the US Court of Appeals for the Eleventh Circuit.

“The state can thus regulate or prohibit those interventions for children, even if an adult wants the drugs for his child,” Alabama said in a brief filed at the Atlanta-based court.

“Just as the parental relationship does not unlock a due process right allowing parents to obtain medical marijuana or abortions for their children, neither does it unlock a right to transitioning treatments,” Alabama Attorney General Steve Marshall told the court.

The state is challenging a preliminary injunction issued by the US District Court for the Middle District of Alabama barring the enforcement of the portion of the law that restricts minors from using puberty blockers and hormone therapies.

Judge Liles C. Burke found that the parents challenging the law are likely to succeed on their claim that the provision violates their due process right to direct medical care of their children, and the minor plaintiffs are likely to succeed on their equal protection claims because the act amounts to a sex-based classification.

Criminal Law

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 students 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.

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 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.

Arizona also 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, the Southern Poverty Law Center, GLBTQ Legal Advocates & Defenders, and the 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. Governor of State of Alabama, 11th Cir., No. 22-11707, brief filed 6/27/22.

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; Andrew Harris at aharris@bloomberglaw.com