A group of transgender flags, with bars of blue, pink and white. (Getty Images)
Attorneys representing transgender youth challenging Alabama’s ban on medication used in gender-affirming care want a full federal appeals circuit to consider the case.
GLBTQ Lawyers and Defenders (GLAD), part of the legal team representing the plaintiffs, said in a statement Monday that the request for an en banc hearing, coming a week after a three-judge panel of the 11th U.S. Circuit Court of Appeals lifted an injunction against the ban, reflected their clients’ need for access “to necessary, evidenced-based medical care for their transgender children.”
“We intend to ask the full Eleventh Circuit to rehear the case because of the severe and damaging impact the law has on Alabama children and families and because the panel decision conflicts with prior decisions by the Eleventh Circuit and the Supreme Court,” the statement said.
Jeff Walker, the father of a transgender teenage girl in Auburn, said the move meant “our kids can still get health care in Alabama and continue to get their prescriptions.”
“You know, I am worried obviously about the doctors and medical providers,” he said.
A message was left with the Alabama Attorney General’s office Tuesday morning.
Federal circuit courts usually assign three judges to hear appeals from federal district courts. In an en banc hearing, all the circuit court judges would consider the panel’s ruling. The injunction must remain in effect until the court denies the request or the rehearing happens.
Alabama’s 2022 law makes it a felony, punishable by up to 10 years in prison, for physicians to prescribe puberty blockers and hormones for the treatment of gender dysphoria in individuals under the age of 19. The law also bans genital surgeries on minors, which physicians in Alabama do not perform.
Walker said that Harleigh, his daughter, has had the same doctor throughout her journey. They know her well, and he trusts them.
“Having to start all that over again, especially given this specialization of this care, I don’t want to say scary, it just sucks,” he said.
Walker said that if the ban goes through, the state will lose a lot of “compassionate and incredible” doctors.
“Alabama is losing out if they wind up leaving, right, it is bad for the state of Alabama for those doctors to leave,” he said.
U.S. District Judge Liles C. Burke put a preliminary injunction on the medicine criminalization last year, ruling that the law interfered with parental decisions and that the state failed to prove the medications were harmful. Last week, a three-judge panel 11th Circuit overturned Burke’s ruling, citing the U.S. Supreme Court’s 2022 opinion in Dobbs v. Jackson Women’s Health Organization, which said the 14th Amendment does not protect rights “not deeply rooted in the nation’s history and traditions.”
U.S. Circuit Judge Barbara Lagoa, in the majority opinion, wrote that the plaintiffs had not proven a “constitutional right” to the medication.
Walker said that he felt that Lagoa’s decision did not engage with the most important part of Burke’s ruling to him, which was that parents should have the right to decide medical care for their children with medical professionals.
“Not the government telling parents what they can and can’t do,” he said.
According to the Legal Information Institute from Cornell Law School, en banc hearings are uncommon but can take place if the decision conflicts with a previous decision from the court or it involves a question of “exceptional importance.”
The U.S. 11th Circuit Court of Appeals includes Alabama, Florida and Georgia. Lagoa’s ruling ran counter not only to Burke’s decision but also against a Georgia judge who temporarily blocked that state’s ban on hormone therapy for transgender youth earlier this month.
Scott McCoy, interim deputy legal director for LGBTQ rights and special litigation at the Southern Poverty Law Center, which is representing the plaintiffs, said that the decision conflicted with precedent from the 11th Circuit and pointed to two cases in particular.
In Glenn vs. Brumby, a 2011 case from Georgia, a three-judge panel ruled for a transgender woman who said she was fired for sex discrimination. In Adams v. School Board of St. Johns County, a 2020 case out of Florida, another three-judge panel said that excluding a transgender boy from the boys’ bathroom was a form of sex discrimination.
McCoy also cited the 2019 U.S. Supreme Court case Bostock vs. Clayton County, which said that people could not be fired for being gay or transgender.
“We think those cases combined together really require that a law like this, in this case, in Alabama, be reviewed with that heightened scrutiny, and, so, those are some of the cases that we think are difficult to reconcile with the panel decision,” McCoy said.
In cases where two or more federal appellate courts have interpreted a law differently, the Supreme Court is also more likely to hear an appealed case, according to the United States Courts website. The Sixth U.S. Circuit Court of Appeals in July allowed a Tennessee ban on medication for transgender individuals to go into effect. Earlier this month, the circuit refused to overturn a lower court ruling allowing a similar ban to take effect in Kentucky.
McCoy said that the legal process is “step by step,” so they have not begun discussing further appeals at this time.
“We’ll go from there once we get through this step,” he said.
States have had mixed results with enforcement of gender affirming care bans, according to the Associated Press. 22 states have enacted restrictions or bans on care with most being legally challenged, while medical organizations such as the American Academy for Pediatrics have supported gender affirming care. Last Friday, a Texas ban was blocked the same day as Missouri ruled that it can go into effect.
GLAD said in their release that Alabama’s law does not bar care from out of state, getting prescriptions filled or administration of medication to children from parents.
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