Gov. Ron DeSantis holds a large print of a children’s book about a transgender kid on March 28, 2022
(Screenshot/Florida Channel
The U.S. Court of Appeals for the Eleventh Circuit has refused to reconsider a three-judge panel’s decision to allow Alabama’s ban on gender-affirming medical care.
Ten of the circuit’s 11 judges participated in the ruling, including U.S. Circuit Judges Barbara Lagoa and Andrew Brasher, both appointed by former President Donald Trump and members of the panel that allowed the ban to go into effect last year.
The 173-page decision, released Wednesday, featured five separate opinions, including a concurrence from Lagoa, who wrote the panel’s original opinion. In that opinion, Lagoa cited the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Medical Center, where Justice Samuel Alito wrote that the 14th Amendment to the U.S. Constitution does not protect any right “not deeply rooted in the nation’s history and traditions.”
Lagoa’s concurrence said that there is no historical record affirming a parental right for gender-affirming health care for minors and that Alabama’s law did not violate the Fourteenth Amendment’s equal protection clause. Lagoa also cited reports that had been issued since she first wrote her opinion.
“While we must evaluate the district court’s work on the record that it had in front of it at the time, recent revelations confirm the danger that comes from hastening to afford constitutional protection in this area,” the judge wrote.
Lagoa’s reasoning and her citing of additional data after the original decision drew criticism from U.S. Circuit Court Judge Robin S. Rosenbaum, appointed by former President Barack Obama. In a dissent joined by U.S. Circuit Court Judge Jill A. Pryor and partially joined by U.S. Circuit Court Judge Adalberto Jordan, also Obama appointees, Rosenbaum wrote that Lagoa’s initial opinion applied an “unprecedented methodology” that would require judges to look at how treatment was considered in 1868, when the Fourteenth Amendment was ratified.
“So in the states of Alabama, Florida, and Georgia, blistering, blood-letting, and leeches are in, but antibiotics, antivirals, and organ transplants are out,” she wrote.
U.S. Circuit Court Judge Charles R. Wilson dissented in a separate opinion, joined by Jordan. Jordan also wrote a dissenting opinion, joined by Rosenbaum and Pryor.
Gov. Ron DeSantis cited Lagoa’s three-judge panel ruling in the Alabama case this week in praising a separate three-judge Eleventh Circuit panel decision lifting an injunction against enforcing a similar law in Florida. He’d placed Lagoa on the Florida Supreme Court before her elevation by Donald Trump to the federal appeals court.
10 years in prison
Alabama’s 2022 ban makes it a felony, punishable by up to 10 years in prison, for physicians to prescribe puberty blockers or hormones to a transgender person under the age of 19. The law also bans genital surgeries, which doctors have stressed are not performed on minors in the state.
Alabama Attorney General Steve Marshall wrote in a social media post Thursday that the law continues to be enforced.
“This is a big win to protect children from these untested and life-altering chemical and surgical procedures,” he wrote.
A message was left with the Attorney General’s Office Thursday.
Transgender youth and their families sued to block the law, arguing that it unconstitutionally deprived them of treatments necessary for their physical and psychological well-being. During a hearing on the ban in May 2022, those who worked with transgender youth said the treatments were safe and effective and highlighted the multiple rounds of counseling and parental consultation that take place before a youth is prescribed the treatments.
The Southern Poverty Law Center; the National Center for Lesbian Rights, GLBTQ Legal Advocates & Defenders, and the Human Rights Campaign, which represented the plaintiffs in the case, wrote in a Wednesday statement that they were disappointed by the ruling but encouraged by the dissents.
“Families, not the government, should make medical decisions for children,” they wrote. “The evidence presented in the case overwhelmingly showed that the banned treatments provide enormous benefits to the adolescents who need them, and that parents are making responsible decisions for their own children. We will continue to challenge this harmful measure and to advocate for these young people and their parents. Laws like this have no place in a free country.”
A message was left with King and Spalding LLC and with attorneys from Lightfoot, Franklin & White LLC, co-counsel for the private plaintiffs.
Approval by medical authorities
U.S. District Court Judge Liles C. Burke blocked the medication ban in 2022 after a hearing. Burke wrote that at least 22 major medical associations in the country endorsed transitioning medicines as safe and well-established for minors with gender dysphoria and that Alabama had failed to present evidence otherwise.
In the three-judge panel opinion overturning Burke last year, Lagoa wrote that previous due process cases do not establish a fundamental right to gender-affirming care. In her Wednesday opinion, Lagoa wrote that the panel was correct to conclude a lack of fundamental right, but she had wanted to write further about her doubts about the plaintiffs’ arguments.
In her dissent, Rosenbaum wrote that “the Lagoa Statement now tries to engage in a do-over.” She wrote that the panel did not find the district court’s findings to be “clearly erroneous.”
This story first appeared in the Alabama Reflector, a member with the Phoenix in the nonprofit States Newsroom. Michael Moline in Tallahassee contributed.