Lawyers for families in Alabama’s transgender case request full 11th Circuit hearing

Lawyers representing transgender minors Monday filed a request for the entire U.S. 11th Circuit Court of Appeals to reconsider a three-judge panel’s decision last month to allow Alabama’s ban on gender-affirming medication to go into effect.

The attorneys argued the opinion from U.S. Circuit Judge Barbara Lagoa “departs from centuries of precedent regarding parental authority and decades of precedent requiring the application of heightened scrutiny to sex-based laws.”

“Because parents have a duty to provide their children with housing, sustenance, education and medical care, parents have a corresponding right to be free from unjustified governmental interference in obtaining these necessities for their children, even if adults have no right to them,” the brief said.

The en banc appeal means an earlier ruling from a lower court blocking the law remains in effect.

Gov. Kay Ivey in 2022 signed a law that made it a felony, punishable by up to 10 years in prison, for a doctor to prescribe puberty blockers or hormones to a person under the age of 19. Parents of transgender youth sued the state, saying the measure put their children at risk.

Following a two-day hearing in 2022, U.S. District Court Judge Liles Burke, a Trump appointee, blocked the ban on medication from going into effect, ruling that Alabama’s law infringed on parental rights

The state appealed to the 11th Circuit. Lagoa, writing for a three-judge panel, ruled that the plaintiffs had “not presented any authority that supports the existence of a constitutional right to ‘treat [one’s] children with transitioning medications subject to medically accepted standards’” and overturned Burke’s ruling.

In the appeal, the plaintiffs’ attorneys referenced a series of previous legal decisions, including the case Parham vs. J.R., a 1978 Supreme Court case, which upheld Georgia’s procedures for institutionalization of minors in mental health hospitals without a minor’s consent at the direction of the parent.

“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children,” then-Chief Justice Warren Berger wrote in the majority opinion.

Lagoa wrote that Parham “does not at all suggest that parents have a fundamental right to direct a particular medical treatment for their children that is prohibited by state law.”

The lawyers for the plaintiffs disagreed, citing interpretations of Parham over the years.

“In the four decades since Parham was decided, both the Supreme Court and this Court have recognized its importance as a substantive parental rights case,” the lawyers wrote.

The lawyers also said that the overturning conflicted with the 11th Circuit’s own precedent, citing the 1994 case of Bendiburg vs. Dempsey, which related to the state taking over medical care for a child over the child’s father’s wishes.

Lagoa wrote that the case had found that the father could proceed on procedural, but not substantive, due process claims.

The plaintiffs argued that the case did not make that distinction.

“Bendiburg, however, makes no such distinction and affirmed the district court’s reliance on Parham, which involved the right to obtain care for a child, not to refuse it,” the lawyers wrote.

The plaintiffs’ lawyers also wrote that the 11th Circuit had erred by not applying a “heightened scrutiny” to the case based on sex. The lawyers also referenced the 2020 Bostock vs. Clayton County, where the Supreme Court had overturned an 11th Circuit decision and found that discrimination based on sex includes discrimination based on sexuality and gender identity.

“That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” wrote Supreme Court Justice Neil Gorsuch in the majority opinion.

The lawyers also said that the case has questions of “exceptional importance.” They said that the panel’s holdings of scrutiny and classification based on sex would impact countless other discriminatory laws and polices.

“This panel’s holding that parents have no constitutionally protected interest in making medical decisions for their children runs counter to ordinary citizens’ most deep-seated expectations and leaves millions of parents vulnerable to laws, policies, and bureaucratic decisions that dictate what medical care their children may receive,” they wrote.

The petition remains before the circuit.

Alabama Reflector is part of States Newsroom, an independent nonprofit website covering politics and policy in state capitals around the nation.

This article originally appeared on Montgomery Advertiser: Alabama families ask court to reconsider transgender medication ban