In August 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, holding that the statute is only subject to rational basis review. (See prior posting.) Now, in Eknes-Tucker v. Governor of the State of Alabama, (11th Cir., Aug. 28, 2024), a majority of the 11th Circuit voted not to grant an en banc rehearing in the case. However, that decision generated a series of concurring and dissenting opinions spanning 173 pages.
Chief Judge William Pryor concurred in the denial but filed an opinion to respond to the dissenting opinion of Judge Jordan. The Chief Judge said in part:
The doctrine of substantive due process does violence to the text of the Constitution, enjoys no historical pedigree, and offers judges little more than shifting and unilluminating standards with which to protect unenumerated rights.... [U]nelected judges with life tenure enjoin enforcement of laws enacted by elected representatives following regular procedures, all in the name of fundamental rights that the Constitution never names but allegedly secures....
Judge Lagoa filed a concurring opinion, saying in part:
The propriety of the medications at issue is a quintessential legislative question, not a constitutional one. Judges Jordan and Rosenbaum would have this Court end the debate by judicially fencing off these questions from state legislatures. But our experience with the intersection of the Constitution and these types of issues suggests that this is a misguided effort. See Roe v. Wade....
Judge Rosenbaum’s and Judge Wilson’s dissents also disagree with our equal-protection holding, arguing that the Act discriminates based on sex and transgender status.... But the Act applies equally to everyone regardless of their sex or transgender status. And transgender status is not a classification protected by the Equal Protection Clause.
Judge Wilson, joined by Judge Jordan, filed a dissenting opinion, saying in part:
This case presents numerous questions “of exceptional importance” worthy of en banc review.... Seeing that this case implicates the contours of substantive due process, fundamental rights, and equal protection, it is difficult to envision issues of greater importance.
Judge Jordan, joined by Judges Rosenbaum and Jill Pryor, filed a dissenting opinion, saying in part:
In this case, the panel characterized the liberty interest in part by asking whether there is a history of recorded uses of transitioning medications for transgender individuals (e.g., puberty blockers and cross-sex hormone treatments) as of 1868, when the Fourteenth Amendment was ratified....
The panel’s decision necessarily means that the fundamental right of parents to obtain medical treatment for their children extends only to procedures and medications that existed in 1868, and not to modern advances like the polio vaccine...,, cardiac surgery..., organ transplants..., and treatments for cancer like radiation ... and chemotherapy...
Judge Rosenbaum, joined by Judge Jill Pryor and in part by Judge Jordan, filed a dissenting opinion, saying in part:
... [P]arents’ liberty interest in directing that their child receive well-established, evidence-based, non-experimental medical treatment, subject to medically accepted standards and a physician’s independent examination and medical judgment, is a fundamental right, “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed”....
We ... receive no medical training in law school. We don’t go through residencies or fellowships. We don’t engage in medical research. And we don’t practice medicine at all. In fact, many of us went into the law because, among other reasons, we weren’t good at math or science. Given our lack of medical expertise, we have no business overriding either the medical consensus that transitioning medications are safe and efficacious or clinicians’ ability to develop individualized treatment plans that follow the governing standards of care....
... [T]he Act discriminates based on two quasi-suspect classifications: sex and transgender status. So either classification requires us to apply intermediate scrutiny. When we do that, the Act cannot survive.
