In Eknes-Tucker v. Governor of Alabama, (11th Cir., Aug. 21, 2023), the U.S. 11th Circuit Court of Appeals vacated a district court's preliminary injunction against Alabama's ban on hormone blockers and cross-sex hormones to treat minors with gender dysphoria. The court said in part:
On review, we hold that the district court abused its discretion in issuing this preliminary injunction because it applied the wrong standard of scrutiny. The plaintiffs have 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.” Nor have they shown that section 4(a)(1)–(3) classifies on the basis of sex or any other protected characteristic. Accordingly, section 4(a)(1)–(3) is subject only to rational basis review. Because the district court erred by reviewing the statute under a heightened standard of scrutiny, its determination that the plaintiffs have established a substantial likelihood of success on the merits cannot stand.
Judge Brasher filed a concurring opinion, saying in part:
[E]ven if the statute did discriminate based on sex, I think it is likely to satisfy intermediate scrutiny. If Alabama’s statute involves a sex-based classification that triggers heightened scrutiny, it does so because it is otherwise impossible to regulate these drugs differently when they are prescribed as a treatment for gender dysphoria than when they are prescribed for other purposes. As long as the state has a substantial justification for regulating differently the use of puberty blockers and hormones for different purposes, then I think this law satisfies intermediate scrutiny.
AL.com reports on the decision.
