Paul Eknes-Tucker v. Governor of the State of Alabama
22-11707 (11th Cir. Aug. 21, 2023) (2023)
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Rule of Law:
A state law prohibiting gender-affirming medical treatments for minors is subject to rational basis review under the Due Process and Equal Protection Clauses because there is no deeply rooted fundamental right to such treatments, and the law does not establish a sex-based classification, but rather regulates specific medical procedures for minors based on age and legitimate state interests in protecting children.
Facts:
- The Alabama Legislature passed the Vulnerable Child Compassion and Protection Act, which subsequently became effective on May 8, 2022.
- Section 4(a)(1)-(3) of the Act prohibits any person from prescribing or administering puberty blocking medication or cross-sex hormone treatment to a minor for the purpose of altering or affirming the minor's gender or sex perception if it is inconsistent with the minor's biological sex.
- The Act defines 'minor' as a person under 19 years of age and defines 'sex' as the biological state of male or female based on sex organs, chromosomes, and endogenous hormone profiles.
- The Act allows exemptions for procedures undertaken to treat a minor born with a medically verifiable disorder of sex development.
- Various medical professionals and individuals testified; some supported gender-affirming care for minors as safe and effective, while others raised concerns about the experimental nature, unknown long-term risks, and irreversible effects of puberty blockers and cross-sex hormones, including fertility issues.
- Some minors, such as Megan Poe's child, identify as a gender inconsistent with their biological sex from a young age and have received puberty blockers and hormone therapy, reporting positive outcomes; conversely, Sydney Wright, who received similar treatments as a minor, later regretted them.
Procedural Posture:
- On April 19, 2022, a group of plaintiffs, including transgender minors, their parents, healthcare providers, and a pastor, initiated a challenge to Alabama's Vulnerable Child Compassion and Protection Act in the United States District Court for the Middle District of Alabama, seeking declaratory and injunctive relief.
- Plaintiffs' original complaint alleged, among other claims, violations of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
- Two days later, Plaintiffs filed a motion for a preliminary injunction to prevent enforcement of the Act before its effective date.
- The United States subsequently intervened in the lawsuit and filed its own motion for preliminary injunction.
- The district court held a three-day hearing on the preliminary injunction motion, during which plaintiffs narrowed their challenge to sections 4(a)(1)–(3) of the Act, which ban puberty blockers and cross-sex hormone treatment.
- On May 13, 2022, the district court granted in part the motions for preliminary injunction, enjoining Alabama from enforcing section 4(a)(1)–(3), based on its determination that plaintiffs had shown a substantial likelihood of success on their substantive due process and equal protection claims, having found a fundamental parental right and a sex-based classification triggering heightened scrutiny.
- Alabama filed a timely notice of appeal to the United States Court of Appeals for the Eleventh Circuit.
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Issue:
Does the Due Process Clause of the Fourteenth Amendment protect a fundamental parental right to obtain puberty blocking medication and cross-sex hormone treatment for their minor children to affirm a gender identity inconsistent with biological sex, and does Alabama's Vulnerable Child Compassion and Protection Act, which bans such treatments, violate the Equal Protection Clause by discriminating on the basis of sex or transgender status, thereby triggering heightened scrutiny?
Opinions:
Majority - lagoa, Circuit Judge
No, the Due Process Clause of the Fourteenth Amendment does not protect a fundamental parental right to obtain puberty blocking medication and cross-sex hormone treatment for their minor children to affirm a gender identity inconsistent with biological sex, and Alabama's Act does not violate the Equal Protection Clause by discriminating on the basis of sex or transgender status, thus not triggering heightened scrutiny. The court found that the district court abused its discretion in issuing the preliminary injunction by applying the wrong standard of scrutiny. Regarding the substantive due process claim, the Eleventh Circuit held that the 'right to treat [one’s] children with transitioning medications subject to medically accepted standards' is not a fundamental right 'deeply rooted in our history and tradition' or 'essential to our Nation’s ‘scheme of ordered liberty’' as required by Dobbs v. Jackson Women’s Health Org. The court emphasized that prior cases recognizing a general parental right to make decisions concerning children's care, custody, and control (e.g., Troxel v. Granville) do not extend to a derivative fundamental right to obtain a particular medical treatment prohibited by state law, especially without specific historical analysis tied to the medications at issue, which are modern phenomena. Therefore, the statute is subject to rational basis review, under which it is 'highly doubtful' it would fail, given the state's legitimate interest in 'safeguarding the physical and psychological well-being of minors' and protecting children from drugs with uncertain benefits and irreversible effects. Regarding the equal protection claim, the court rejected the argument that the Act directly or indirectly classifies on the basis of sex or gender nonconformity, or that transgender persons constitute a quasi-suspect class. The court reasoned that the statute applies equally to both sexes by restricting specific medical procedures for all minors, and its references to sex are due to the sex-based nature of the medical procedures themselves, not invidious discrimination. Citing Dobbs, the court stated that regulating a medical procedure only one sex can undergo does not trigger heightened scrutiny unless it's a pretext for invidious discrimination, which the district court did not find. Since age is not a suspect classification, the Act is also subject only to rational basis review, which it likely satisfies given the state's legitimate interest in protecting minors who 'may not be finished forming their identities and may not fully appreciate the associated risks.'
Concurring - brasher, Circuit Judge
Yes, the district court's preliminary injunction should be vacated. Justice Brasher concurred, focusing specifically on the Equal Protection claim. He agreed that Alabama's statute does not classify based on sex in a way that warrants intermediate scrutiny, as it does not treat one sex differently, use sex as a proxy, or rely on sex stereotypes. Instead, he viewed the law as classifying between minors who want puberty blockers and hormones for gender identity discordance and those who want them for other conditions. He expressed caution about extending heightened scrutiny to novel facts and noted that the justifications for applying heightened scrutiny to sex classifications (preventing outdated notions about capabilities) do not apply here. Brasher further posited that even if intermediate scrutiny were to apply, the statute would likely survive because the state has an 'exceedingly persuasive justification' for regulating these drugs differently when used to treat gender identity discordance due to uncertain risks, lack of FDA approval for this purpose, and practices in other countries. He emphasized that intermediate scrutiny requires a good reason for the classification, not necessarily the least restrictive alternative.
Analysis:
This case significantly limits the scope of judicially recognized fundamental parental rights under the Due Process Clause, specifically refusing to extend it to the right to obtain gender-affirming medical treatments for minors. It also clarifies that state laws regulating such treatments will likely be subjected to rational basis review under the Equal Protection Clause, rejecting arguments for heightened scrutiny based on sex, gender nonconformity, or transgender status. The Eleventh Circuit's reasoning underscores judicial deference to state legislatures on matters not 'deeply rooted' in history and tradition and where classifications are tied to biological differences or age-based distinctions aimed at child protection, rather than invidious discrimination or stereotypes. This decision creates a circuit split (with the Sixth Circuit also applying rational basis) and will likely be influential in similar challenges to state bans on gender-affirming care for minors, making it harder for plaintiffs to succeed on preliminary injunctions and on the merits.
