USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 1 of 173
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11707
____________________
PAUL A. EKNES-TUCKER,
Rev.,
BRIANNA BOE,
individually and on behalf of her minor son, Michael Boe,
JAMES ZOE,
individually and on behalf of his minor son, Zachary Zoe,
MEGAN POE,
individually and on behalf of her minor daughter, Allison Poe,
KATHY NOE, et al.,
individually and on behalf of her minor son, Christopher Noe,
Plaintiffs-Appellees,
versus
GOVERNOR, OF THE STATE OF ALABAMA,
ATTORNEY GENERAL, STATE OF ALABAMA,
DISTRICT ATTORNEY, FOR MONTGOMERY COUNTY,
DISTRICT ATTORNEY, FOR CULLMAN COUNTY, USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 2 of 173
DISTRICT ATTORNEY, FOR LEE COUNTY, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:22-cv-00184-LCB-SRW
____________________
Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN,
ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,
and BRASHER, Circuit Judges. ∗
BY THE COURT:
A petition for rehearing having been filed and a mem-
ber of this Court in active service having requested a poll on
whether this case should be reheard by the Court sitting en
banc, and a majority of the judges in active service on this
Court having voted against granting rehearing en banc, it is
ORDERED that this case will not be reheard en banc.
∗ Judge Nancy Abudu recused herself and did not participate in the en banc
poll. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 3 of 173
WILLIAM PRYOR, Chief Judge, respecting the denial of rehearing en
banc:
I agree with the decision not to rehear this appeal en banc
and write only to respond to a dissenting opinion. Our respected
colleague argues that the “complex[]” doctrine of substantive due
process is “hard,” Jordan Dissent at 1, but the difficulty is inevitable.
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. Unmoored from text and history,
the drift of the doctrine—“neither linear nor consistent,” id. at 20—
is predictable. So too is its patchy legacy: unelected judges with life
tenure enjoin enforcement of laws enacted by elected representa-
tives following regular procedures, all in the name of fundamental
rights that the Constitution never names but allegedly secures. In
the absence of clear guidance from the Supreme Court, we should
hesitate to expand the reach of this f lawed doctrine. And our Court
wisely declines to do so here.
As John Hart Ely famously put it, the phrase “substantive
due process” is a “contradiction in terms,” like “‘green pastel red-
ness.’” JOHN HART ELY, DEMOCRACY AND DISTRUST 18 (1980). The
Fifth and Fourteenth Amendments prohibit the federal and state
governments from depriving any person of life, liberty, or property
“without due process of law.” That constitutional guarantee is
about legal procedures, not the substance of laws. For that reason,
the Supreme Court has declared—unanimously—that the USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 4 of 173
“language” of the Due Process Clauses does not “suggest[],” let
alone support, the “substantive content” that courts often have
poured into them. Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214,
225–26 (1985) (citation and internal quotation marks omitted). So,
the Due Process Clauses are a “most curious place” to ground all-
but-indefeasible protections for fundamental rights. McDonald v.
City of Chicago, 561 U.S. 742, 809 (2010) (Thomas, J., concurring in
part and in the judgment). Yet the doctrine of substantive due pro-
cess shields individuals from even “general and prospective legisla-
tion enforced with all proper procedure.” Nathan S. Chapman &
Michael W. McConnell, Due Process as Separation of Powers, 121
YALE L.J. 1672, 1792 (2012).
In addition to incorporating against the States most of the
protections that the Bill of Rights guarantees against the federal
government, the doctrine bars state infringement of “fundamental
rights that are not mentioned anywhere in the Constitution.” Dobbs
v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2246 (2022). That bar
is not absolute, at least in theory; a challenged law may deprive an
individual of a fundamental right if it satisfies strict scrutiny. See
Waldman v. Conway, 871 F.3d 1283, 1292 (11th Cir. 2017). But strict
scrutiny does not pertain to either the form of adjudication that
must accompany the deprivation or the procedures that the adju-
dication must observe—that is, to process. See Ryan C. Williams, The
One and Only Substantive Due Process Clause, 120 YALE L.J. 408, 419
(2010). The condition rests instead on the importance of the goal
of the law and the narrowness of its means—that is, on nonproce-
dural grounds. See Waldman, 871 F.3d at 1292. And even when no USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 5 of 173
fundamental interest is at stake, the doctrine bars any “arbitrary
and oppressive exercise of government power” and all government
conduct that “shocks the conscience.” Id. (citation and internal
quotation marks omitted).
The doctrine of substantive due process has “long been con-
troversial,” Dobbs, 142 S. Ct. at 2246, because its potent strictures
on democratic self-governance have “no footing in constitutional
text” or history. Sosa v. Martin County, 57 F.4th 1297, 1305–06 (11th
Cir. 2023) (en banc) (Newsom, J., concurring). Under the “tradi-
tional view,” the Founders would have understood the Due Process
Clause of the Fifth Amendment either not to “constrain the legis-
lature at all” or to “limit the legislature’s discretion in prescribing
certain modes of judicial procedure.” Williams, supra, at 454. That
traditional view remains dominant. See, e.g., MICHAEL STOKES
PAULSEN & LUKE PAULSEN, THE CONSTITUTION 216 (2015) (due pro-
cess required “executive branch and judicial officials [to] act in ac-
cordance with the legal rules—laws—that ha[d] been made in ad-
vance of the events at hand”); Chapman & McConnell, supra, at
1679; Timothy M. Tymkovich, Joshua Dos Santos & Joshua J.
Craddock, A Workable Substantive Due Process, 95 NOTRE DAME L.
REV. 1961, 1966–67 (2020). Disagreement on the edges of the scope
of the right should not obscure the bottom line: substantive due
process is an ahistorical “legal fiction.” McDonald, 561 U.S. at 811
(Thomas, J., concurring in part and in the judgment). And nothing
relevant had changed by 1868. Even then, there was almost no his-
torical support for the policy-second-guessing function that the
doctrine performs today. See Chapman & McConnell, supra, at USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 6 of 173
1679–80, 1801, 1807; Williams, supra, at 499; Tymkovich et al., su-
pra, at 1972–73.
Some scholars argue that the phrase “due process of law”
was a “legal term of art with substantive content” when the Four-
teenth Amendment was ratified in 1868. See, e.g., Williams, supra,
at 496 (presenting the argument). But that argument is “hardly air-
tight,” id., and “[n]o evidence” establishes that the word “process”
“meant something different” in 1868, set aside 1791, from what it
does now, see ELY, supra, at 18. To trained observers no less than the
ordinary man, the choice of the phrase “due process of law” to af-
ford constitutional protection to substantive rights would have
seemed “very odd.” Chapman & McConnell, supra, at 1725.
A constitutional doctrine that lacks foundation in text or his-
tory must draw its content from another source, and substantive
due process has offered judges little more than “scarce and open-
ended” platitudes. Collins v. City of Harker Heights, 503 U.S. 115, 125
(1992). The doctrine has been said to protect rights that comprise
the “essence of a scheme of ordered liberty,” McDonald, 561 U.S. at
760 (plurality opinion) (citation and internal quotation marks omit-
ted), or to bar state action that “shocks the conscience,” Waldman,
871 F.3d at 1292 (citation and internal quotation marks omitted).
These “vague shibboleths” clarify little. Sierra v. City of Hallandale
Beach, 996 F.3d 1110, 1128 (11th Cir. 2021) (Newsom, J., concur-
ring). That feature of substantive due process sits dangerously
alongside the power that the doctrine gives life-tenured judges: to USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 7 of 173
declare unconstitutional, and enjoin enforcement of, duly enacted
laws of elected representatives of the People.
Unconstrained power tempts usurpation. The history of
substantive due process bears out that plain truth. In many deci-
sions, the Supreme Court has stated that the approach to constitu-
tional decision-making typified by Lochner v. New York, 198 U.S. 45
(1905), was “illegitimate,” an “intrusion by the courts into a realm
properly reserved to the political branches of government.” Cass
R. Sunstein, Lochner’s Legacy, 87 COLUM. L. REV. 873, 874 (1987).
The “freewheeling judicial policymaking” that marked “discred-
ited” decisions like Lochner and Roe v. Wade, 410 U.S. 113 (1973), see
Dobbs, 142 S. Ct. at 2248, is a feature, not a bug, of substantive due
process. And it discredits the judiciary itself. See, e.g., Dred Scott v.
Sandford, 60 U.S. (19 How.) 393 (1857).
Because the doctrine can empower judges to “usurp” au-
thority that the Constitution leaves to elected representatives, see
Dobbs, 142 S. Ct. at 2247, the Supreme Court has sought to disci-
pline its application. The Court has stated, for example, that a right
or liberty must be “deeply rooted” in our “history and tradition” to
be immune from legislative encroachment. Washington v. Glucks-
berg, 521 U.S. 702, 720–21 (1997) (citation and internal quotation
marks omitted). In this analysis, “liberty” must be defined “in a
most circumscribed manner,” in reference to “specific historical
practices.” Obergefell v. Hodges, 576 U.S. 644, 671 (2015). That is, the
asserted right must be “careful[ly] descri[bed].” Reno v. Flores, 507
U.S. 292, 302 (1993). USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 8 of 173
Sometimes courts have defined the asserted unenumerated
right at a specific level. In Reno, for example, the Supreme Court
rejected the proposed general description of the right at issue—
“freedom from physical restraint”—and defined the right instead
more specifically as the “right of a child who has no available par-
ent, close relative, or legal guardian, and for whom the government
is responsible, to be placed in the custody of a willing-and-able pri-
vate custodian rather than of a government-operated or govern-
ment-selected child-care institution.” Id. (quotation marks omit-
ted). And in Doe v. Moore, we rejected a “broad framing” of the
rights at issue—including the rights “to family association” and to
“be free of threats to their persons and members of their immedi-
ate families”—for a more “careful” description: the “right of a per-
son, convicted of ‘sexual offenses,’ to refuse subsequent registra-
tion of his or her personal information with Florida law enforce-
ment and [to] prevent publication of this information on Florida’s
Sexual Offender/Predator website.” 410 F.3d 1337, 1343–44 (11th
Cir. 2005).
To be sure, the Glucksberg test has proved occasional. In Law-
rence v. Texas, the Supreme Court endorsed the uncircumscribed
view that the Due Process Clause protected a “liberty of the person
both in its spatial and in its more transcendent dimensions.” 539
U.S. 558, 562 (2003). And in Obergefell, the Court set aside the Glucks-
berg test and defined the right to marry in a more “comprehensive
sense.” 576 U.S. at 671. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 9 of 173
Yet what judicial creativity gives, a measure of judicial re-
straint can take away. For example, Dobbs did not mention the al-
ternative Obergefell method. So I agree with our dissenting col-
league that binding precedents like these are “not . . . reconcilable”
on the key question of how narrowly to define the liberty interest.
Jordan Dissent at 20.
This inconsistency is unsurprising. It is inevitable. The “con-
troversial nature” of the doctrine of substantive due process—its
lack of footing in text or history and the absence of consistent and
meaningful legal standards to guide judicial analysis—make the
caselaw “contradictory” and “imprecise.” Tymkovich et al., supra,
at 1963.
With good reason, the Supreme Court has long counseled
“reluctan[ce] to expand the concept of substantive due process.”
Collins, 503 U.S. at 125. Judicial restraint, with its respect for the sep-
aration of powers and for federalism, demands “utmost care” be-
fore courts interfere. See id. We must “guard against the natural hu-
man tendency” to conf late what due process requires with “our
own ardent views about the liberty that Americans should enjoy.”
Dobbs, 142 S. Ct. at 2247. And we must remember that the amor-
phous doctrine of substantive due process does not shield every
“important, intimate, and personal decision[]” from legislative im-
pairment. Glucksberg, 521 U.S. at 727. So, when we consult “juris-
prudence as a whole” to glean guidance, Jordan Dissent at 20, we
should be skeptical about any argument to extend this misguided
doctrine, with its checkered past, to define an unenumerated right USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 10 of 173
at a high level of generality and enjoin enforcement of a law en-
acted by representatives of the People. Difficult questions of mo-
rality, parental rights, and medicine are properly left to democracy,
and we should not pretend that the Due Process Clauses give une-
lected judges the authority to second-guess public policy. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 11 of 173
LAGOA, Circuit Judge, Concurring in the denial of rehearing en
banc:
Sydney Wright took large doses of cross-sex hormones for a
year. In Wright’s words, her grandfather “saved [her] life” when
he persuaded her to stop. As a teenager, Wright’s father kicked her
out of the house after he learned that she was attracted to women,
and Wright began questioning if she “was really a man” because
she “was attracted to girls.” Wright saw a counselor who recom-
mended that she begin taking testosterone and undergo a double
mastectomy. The counselor never explored the negative effects of
Wright’s relationship with her parents or the years of sexual mo-
lestation that she endured as a child. Wright started testosterone
injections after a ten-minute appointment with a physician who
told her to learn “on YouTube” how to “give [herself] the shots.”
Testosterone caused Wright’s voice to deepen, perma-
nently. She also gained fifty pounds and became pre-diabetic. After
a year, her blood thickened, her red-blood-cell count increased, and
she developed a blood disorder that could lead to heart attack and
stroke. She also began experiencing excruciating abdominal pain,
which she continues to suffer from. One day, her grandfather—
who Wright describes as “the most important man in [her] life”—
had a “down-to-earth” talk with her. With “tears in his eyes,” he
expressed concern about her treatment and asked her to take a
three-year break to reevaluate her decision. According to Wright,
her grandfather was “worried about [her] health,” and he “never
cared how [she] looked.” Wright agreed to take a break, and on USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 12 of 173
further reflection, realized that she needed counseling, not hor-
mone medications. Wright still suffers negative side effects from
cross-sex hormones, including digestive problems, tachycardia,
and an increased red-blood-cell count. Her gynecologist also told
her that she may never be able to have children.
The record contains many stories of others who were irre-
versibly harmed by similar medications. 1 The Alabama Legislature
decided to respond through Alabama’s Vulnerable Child Compas-
sion and Protection (“Act”). In relevant part, section 4(a)(1)–(3) of
the Act provides that “no person shall” prescribe or administer pu-
berty blocking medication or cross-sex hormones to a minor “for
the purpose of attempting to alter the appearance of or affirm the
minor’s perception of his or her gender or sex, if that appearance
or perception is inconsistent with the minor’s sex.” A federal dis-
trict court preliminarily enjoined enforcement of part of the Act
under the Due Process Clause and the Equal Protection Clause of
the Fourteenth Amendment. But we reversed. Now, a majority
of the active judges on this Court have correctly determined not to USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 13 of 173
rehear this case en banc. The Act, “like other health and welfare
laws, is entitled to a ‘strong presumption of validity.’” Dobbs v. Jack-
son Women’s Health Org., 597 U.S. 215, 301 (2022) (quoting Heller v.
Doe ex rel. Doe, 509 U.S. 312, 319 (1993)).
Judge Rosenbaum’s dissent characterizes the panel opinion
as holding that parents do not have a constitutional right to access
“life-saving medical care” for their children. Rosenbaum Dis. Op.
at 4; see also Jordan Dis. Op. at 22 (describing the asserted right as
“the right of parents to obtain medically-approved treatment for
their children”). But frankly, whether puberty blockers and cross-
sex hormones qualify as “life-saving” treatment—or even “medical
care”—is a policy question informed by scientific, philosophical,
and moral considerations. Neither an unelected district judge nor
unelected circuit judges should resolve that debate for the State of
Alabama. See Kadel v. Folwell, 100 F.4th 122, 196 (4th Cir. 2024) (en
banc) (Wilkinson, J., dissenting) (“Self-governance is notably ab-
sent when the many voices seeking to provide answers are silenced
by federal judges shrouded in an authority of their own design.”).
Indeed, “when a legislature ‘undertakes to act in areas
fraught with medical and scientific uncertainties, legislative options
must be especially broad and courts should be cautious not to re-
write legislation.’” Kansas v. Hendricks, 521 U.S. 346, 360 n.3 (1997)
(quoting Jones v. United States, 463 U.S. 354, 370 (1983)). And this
case only serves to underscore why. While we must evaluate the
district court’s work on the record it had in front of it at the time, USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 14 of 173
recent revelations confirm the danger that comes from hastening
to afford constitutional protection in this area.
For example, in April 2024, Dr. Hillary Cass—the chair of a
policy group commissioned by England’s National Health Service
(“NHS”)—published the results of her four-year review of the use
of puberty blockers and cross-sex hormones on minors. 2 Cass
found no evidence that puberty blockers improve gender dyspho-
ria and no evidence that cross-sex hormones reduce suicide risk for
children suffering from gender dysphoria. See The Cass Review,
supra n.2, at 179, 186, 195. Cass also documented the extensive
risks associated with puberty blockers. See, e.g., id. at 177–78. In
conjunction with the Cass Review, NHS announced “that there is
not enough evidence to support the safety or clinical effectiveness
of [puberty suppressing hormones] to make the treatment rou-
tinely available at this time.” 3 And, on May 29, 2024, the United
Kingdom’s Secretary of State for Health and Social Care and North-
ern Ireland’s Minister for Health issued a temporary emergency or-
der that “prohibits”—with limited exceptions—puberty blockers
USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 15 of 173
for people under the age of 18. See TransActual CIC v. Sec’y of State
for Health and Social Care [2024] EWHC 1936 (Admin), ¶¶ 2, 142–48.
On July 29, 2024, the UK’s High Court dismissed a legal challenge
to the emergency order, citing the Cass Review as “powerful scien-
tific evidence in support of restrictions on the supply of puberty
blockers on the grounds that they were potentially harmful.” See
id. ¶¶ 210, 257.
Also, in March 2024, a whistleblower leaked documents and
recordings impugning the credibility of the World Professional As-
sociation for Transgender Health (WPATH), 4 which promulgates
the “Standards of Care” that the district court relied on in its order.
Eknes-Tucker v. Marshall (“Eknes-Tucker I”), 603 F. Supp. 3d 1131,
1138–39 (M.D. Ala. 2022). The leaked documents suggest that
WPATH officials are aware of the risks of cross-sex hormones and
other procedures yet are mischaracterizing and ignoring infor-
mation about those risks. See, e.g., infra at 47–49. Again, I highlight
these developments only to demonstrate the ill-suitedness of this
area for judicial intervention.
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
USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 16 of 173
experience with the intersection of the Constitution and these
types of issues suggests that this is a misguided effort. See Roe v.
Wade, 410 U.S. 113 (1973), overruled by Dobbs, 597 U.S. at 302 (“re-
turn[ing]” “authority to the people and their elected representa-
tives” to regulate abortion). Compare Buck v. Bell, 274 U.S. 200
(1927), with Box v. Planned Parenthood Ind. & Ky., Inc., 587 U.S. 490,
499–500 (2019) (Thomas, J., concurring) (noting that Buck v. Bell
“gave the eugenics movement added legitimacy and considerable
momentum”). Our panel opinion correctly declined to remove
these issues from the political process by rejecting a novel reading
of the Fourteenth Amendment that is unmoored from text, history,
and tradition.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
The panel opinion provides a thorough summary of the fac-
tual background and procedural history. See Eknes-Tucker v. Gover-
nor of Alabama (“Eknes-Tucker II”), 80 F.4th 1205, 1211–19 (11th Cir.
2023). Here, I provide a summary of the relevant provisions of the
Act and a brief overview of the procedural history.
A. The Act
The Alabama Legislature passed the Act on April 7, 2022,
and Governor Ivey signed it the next day. Section 3(1) incorporates
the definition of “minor” found in another part of the code, which
is a “person who is under 19 years of age.” Ala. Code § 43-8-1(18).
And section 3(3) defines “sex” to mean “[t]he biological state of be-
ing male or female, based on the individual’s sex organs, USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 17 of 173
chromosomes, and endogenous hormone profiles.” Section 4(a)
then states, in part, that “no person shall engage in or cause” the
prescription or administration of (1) “puberty blocking medication
to stop or delay normal puberty,” (2) “supraphysiologic 5 doses of
testosterone or other androgens to females,” or (3) “supraphysio-
logic doses of estrogen to males,” “for the purpose of attempting
to alter the appearance of or affirm the minor’s perception of his or
her gender or sex, if that appearance or perception is inconsistent
with the minor’s sex.” 6 Section 4(b), however, provides an excep-
tion if “a procedure [is] undertaken to treat a minor born with a
medically verifiable disorder of sex development,” and includes
some examples of such disorders. 7 USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 18 of 173
B. Procedural History
Shortly after the Governor signed the Act, the Plaintiffs—
including transgender minors (the “Minor Plaintiffs”) and their par-
ents (the “Parent Plaintiffs”)—sued several Alabama state officials
(collectively, “Alabama”). Relevant to this appeal, the Plaintiffs al-
leged that the Act violated the Due Process Clause of the Four-
teenth Amendment by depriving the Parent Plaintiffs of their right
to direct the upbringing of their children, and alleged that the Act
violated the Equal Protection Clause by discriminating against the
Minor Plaintiffs on account of their sex and transgender status.
The Plaintiffs then moved for a preliminary injunction. 8 Af-
ter a three-day hearing—at which the district court heard evidence
from both sides about the efficacy of the treatments proscribed by
the Act, see Eknes-Tucker II, 80 F.4th at 1215–18—the district court
granted the Plaintiffs’ motion with respect to Section 4(a)(1)–(3),
see Eknes-Tucker I, 603 F. Supp. 3d at 1138, 1151. The district court
concluded that the Plaintiffs had a substantial likelihood of success
on the merits as to their due-process and equal-protection claims.
With respect to the due-process claim, the district court concluded
biochemical testing that the person does not have normal sex chromosome
structure, sex steroid hormone production, or sex steroid hormone action for
a male or female.” Act § 4(b).
8 The United States moved to intervene on behalf of the Plaintiffs under Fed-
eral Rule of Civil Procedure 24 and filed its own motion to enjoin enforcement
of the Act on equal-protection grounds. The district court granted interven-
tion and the United States’s motion for injunctive relief to the same extent it
granted the Plaintiffs’ motion. Eknes-Tucker I, 603 F. Supp. 3d at 1151. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 19 of 173
that the Parent Plaintiffs were substantially likely to show that they
have a “fundamental right to treat their children with transitioning
medications subject to medically accepted standards,” and that sec-
tion 4(a)(1)–(3) violates this right, triggering strict scrutiny. Id. at
1144–45. And, in the eyes of the district court, section 4(a)(1)–(3)
likely failed to satisfy strict scrutiny. Id. at 1146. With respect to
the equal-protection claim, the district court concluded that the Act
“amounts to a sex-based classification,” meaning it needed to sat-
isfy intermediate scrutiny. Id. at 1147. Again, the district court
found that the Act likely failed to meet this burden. Id. at 1148.
Alabama subsequently appealed.
II. ANALYSIS
On appeal, the panel unanimously concluded that the dis-
trict court abused its discretion by preliminarily enjoining Alabama
officials from enforcing section 4(a)(1)–(3) of the Act. Eknes-Tucker
II, 80 F.4th at 1210. We held that the Due Process Clause does not
secure “a constitutional right to ‘treat [one’s] children with transi-
tioning medications subject to medically accepted standards,’” and
that the Act does not discriminate “on the basis of sex or any other
protected characteristic.” Id. at 1210–11, 1219–31 (alteration in the
original). Thus, we concluded that section 4(a)(1)–(3) was subject
only to rational-basis review, and, as a consequence, the district
court’s “determination that the plaintiffs have established a sub-
stantial likelihood of success on the merits [could not] stand.” Id.
at 1210–11; see id. at 1231. We therefore vacated the preliminary
injunction. Id. at 1211, 1231. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 20 of 173
Some of my dissenting colleagues interpret the Fourteenth
Amendment differently. I respectfully disagree. Below, I first ex-
plain why the panel’s understanding of the Fourteenth Amend-
ment is consistent with text, history, tradition, and existing prece-
dent. I then explain why Alabama’s decision is a rational exercise
of its police power.
A. Substantive Due Process
The Due Process Clause of the Fourteenth Amendment pro-
vides that no State shall “deprive any person of life, liberty, or prop-
erty, without due process of law.” U.S. Const. amend. XIV, § 1.
Because this Clause makes no express mention of a parent’s right
to access cross-sex hormones and puberty blockers on behalf of a
child, the Parent Plaintiffs “must show that the right is somehow
implicit in the constitutional text.” Dobbs, 597 U.S. at 235.
“The most familiar office of [the Due Process] Clause is to
provide a guarantee of fair procedure in connection with any dep-
rivation of life, liberty, or property by a State.” Collins v. City of
Harker Heights, 503 U.S. 115, 125 (1992). But the Supreme Court
has said that the Due Process Clause protects “two categories of
substantive rights”—a great majority of those enumerated in the
first eight Amendments as well as “a select list of fundamental
rights that are not mentioned anywhere in the Constitution.”
Dobbs, 597 U.S. at 237. The Supreme Court has long been “reluc-
tant” to add a new right to this list, Collins, 503 U.S. at 125, because
“[i]dentifying unenumerated rights carries a serious risk of judicial
overreach,” Dep’t of State v. Muñoz, 144 S. Ct. 1812, 1821–22 (2024); USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 21 of 173
cf. United States v. Johnson, 921 F.3d 991, 1021 (11th Cir. 2019) (en
banc) (Rosenbaum, J., dissenting) (recognizing that “the ‘doctrine
of judicial self-restraint requires us to exercise the utmost care
whenever we . . . break new ground’” (alteration in the original)
(quoting Collins, 503 U.S. at 125)). Otherwise, “the liberty pro-
tected by the Due Process Clause” would simply reflect the “policy
preferences” of the federal judiciary. Washington v. Glucksberg, 521
U.S. 702, 720 (1997).
Out of this cautious approach grew the requirement that a
substantive-due-process analysis “must begin with a careful de-
scription of the asserted right.” Reno v. Flores, 507 U.S. 292, 302
(1993). Heeding this directive, the panel opinion’s description of
the right claimed here came directly from the district court, which
concluded that the Parent Plaintiffs likely have a “fundamental
right to treat their children with transitioning medications subject
to medically accepted standards.” Eknes-Tucker I, 603 F. Supp. 3d at
1144.
The dissents take issue with this framing. Judge Jordan de-
scribes our analysis as “too simple” and says that we “ignore[] many
Supreme Court cases that define fundamental rights at a much
more general level without requiring established and precise his-
torical pedigrees.” Jordan Dis. Op. at 2. He “cite[s] with confidence
to the dissent of Justice Stevens in McDonald,” id. at 7, where Justice
Stevens suggested that courts need not “define the asserted right at
the most specific level, thereby sapping it of a universal valence and
moral force it might otherwise have,” McDonald v. City of Chicago, USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 22 of 173
561 U.S. 742, 882 (2010) (Stevens, J., dissenting). Judge Jordan
would instead define the right as a parent’s right “to obtain medi-
cally-approved treatment for their children.” Jordan Dis. Op. at 22.
Judge Rosenbaum defines the right at stake as “parents’ fun-
damental right to direct that their child receive well-established,
evidence-based, non-experimental medical treatment, subject to
medically accepted standards and a physician’s independent exam-
ination and medical judgment.” Rosenbaum Dis. Op. at 1. Her
opinion also faults our panel for “hyper-narrowly describ[ing] the
asserted right.” Id. at 31.
And Judge Wilson argues that en banc review is justified be-
cause of Judges Jordan and Rosenbaum’s disagreement with our
framing of the supposed right at stake, as well as the fact that the
district court also framed the right at a higher level of generality.
Wilson Dis. Op. at 1–2.
Respectfully, the panel’s framing of the right is squarely
within the approach taken by our Circuit, as Judge Jordan acknowl-
edges. See Jordan Dis. Op. at 1 (recognizing that “[t]here is admit-
tedly some support in our cases for the panel’s approach”). For
example, in Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005), the plain-
tiffs challenged, among other things, Florida’s sex offender registra-
tion/notification scheme. Id. at 1339. The plaintiffs argued that
this scheme—under which sex offenders registered and then the
state published their information on the internet—violated sub-
stantive due process. Id. at 1342. Specifically, the plaintiffs alleged
that it infringed their “rights to family association, to be free of USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 23 of 173
threats to their persons and members of their immediate families,
to be free of interference with their religious practices, to find
and/or keep any housing, and . . . to find and/or keep any employ-
ment.” Id. at 1343.
But instead of accepting this broad framing of the supposed
rights at stake, this Court “endeavor[ed] to create a more careful
description of the asserted right in order to analyze its importance.”
Id. A “careful description of the fundamental interest at issue here,”
we explained, “allows us to narrowly frame the specific facts before
us so that we do not stray into broader ‘constitutional vistas than
are called for by the facts of the case at hand.’” Id. at 1344 (quoting
Williams v. Att’y Gen. of Ala., 378 F.3d 1232, 1240 (11th Cir. 2004)).
This did not mean, we said, that “cases involving other privacy in-
terests or burdens on those interests” were irrelevant, only that
“we must quantify the claimed right in narrow terms before ana-
lyzing its historical importance in the second prong where discus-
sion of prior case law is more appropriate.” Id. at 1344 n.4. So,
after reviewing the law and the parties’ arguments, we determined
that that supposed right at issue there was “the right of a person,
convicted of ‘sexual offenses,’ to refuse subsequent registration of
his or her personal information with Florida law enforcement and
prevent publication of this information on Florida’s Sexual Of-
fender/Predator website.” Id. at 1344.
Similarly, in Morrissey v. United States, 871 F.3d 1260 (11th
Cir. 2017), the plaintiff alleged that the IRS’s disallowance of a
claimed deduction for IVF-related costs infringed “his fundamental USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 24 of 173
right to reproduce.” Id. at 1268. We recognized that the Supreme
Court had “referred to procreation as ‘fundamental to the very ex-
istence and survival of the [human] race’ and as a ‘basic civil right[]
of man.’” Id. (alterations in the original) (quoting Skinner v. Okla-
homa, 316 U.S. 535, 541 (1942)). But the question in Morrissey, we
said, was “not whether the Constitution protects a right to ‘procre-
ation’ generally.” Id. at 1269. Rather than rest at this level of gen-
erality, this Court went further, providing that the pertinent ques-
tion in the case was “whether a man has a fundamental right to
procreate via an IVF process that necessarily entails the participa-
tion of an unrelated third-party egg donor and a gestational surro-
gate.” Id.
The approach taken by these cases explains our framing of
the alleged “right” at issue here. 9 And while it is true that a plurality
of the Supreme Court has recognized, at a high level of generality,
“the fundamental right of parents to make decisions concerning the
care, custody, and control of their children,” Troxel v. Granville, 530
U.S. 57, 66 (2000) (plurality opinion), there is no accompanying sug-
gestion from the Court that plaintiffs asserting a supposed right un-
der this umbrella are exempt from the “careful description” re-
quirement found elsewhere in the case law. To the contrary, as a
recent decision makes clear, the Court has continued to define
USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 25 of 173
alleged unenumerated rights narrowly so as to maintain fidelity to
the facts before it in each case. See Muñoz, 144 S. Ct. at 1822. 10
There is also the fact that most of the cases concerning pa-
rental rights “pertain to issues of education, religion, or custody.”
Eknes-Tucker II, 80 F.4th at 1222. In Meyer v. Nebraska, 262 U.S. 390
(1923), the Supreme Court set aside a schoolteacher’s conviction,
which was predicated on the violation of a state law forbidding the
teaching of most foreign languages before the eighth grade. Id. at
396–97, 401–403. Among other things, the Court reasoned that the
“liberty” guaranteed by the Due Process Clause included the right
to “establish a home and bring up children.” Id. at 399. Two years
later, in Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary,
268 U.S. 510 (1925), the Supreme Court concluded that an Oregon
law—which required children from ages eight to sixteen to attend
public school—“unreasonably interfere[d] with the liberty of par-
ents and guardians to direct the upbringing and education of chil-
dren under their control.” Id. at 530, 534–35; see alsoid. at 535
(“The
child is not the mere creature of the state; those who nurture him
and direct his destiny have the right, coupled with the high duty,
to recognize and prepare him for additional obligations.”).
Child labor laws were at issue in Prince v. Massachusetts, 321
U.S. 158 (1944). The petitioner, a Jehovah’s Witness, was the aunt
USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 26 of 173
and custodian of a nine-year-old girl. Id. at 159, 161. After allowing
the girl to assist with sidewalk preaching efforts, the petitioner was
charged with furnishing the girl with magazines to sell and permit-
ting her to work in violation of the law. Id. at 160, 162. Pointing
to Meyer and Pierce, the Court said that it “is cardinal with us that
the custody, care and nurture of the child reside first in the parents,
whose primary function and freedom include preparation for obli-
gations the state can neither supply nor hinder.” Id. at 166. At the
same time, the Court recognized “that the state has a wide range
of power for limiting parental freedom and authority in things af-
fecting the child’s welfare” and that the “state’s authority over chil-
dren’s activities is broader than over like actions of adults.” Id. at
167–68.
In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Supreme Court
held that Wisconsin’s compulsory-school attendance law for stu-
dents up to the age of sixteen violated the First and Fourteenth
Amendments. Id. at 234. The Court described the interest at stake
as “the fundamental interest of parents . . . to guide the religious
future and education of their children.” Id. at 232; seeid. at 233
(“[T]he Court’s holding in Pierce stands as a charter of the rights of
parents to direct the religious upbringing of their children.”). But
even in Yoder, the Court made clear that “the power of the parent,
even when linked to a free exercise claim, may be subject to limi-
tation under Prince if it appears that parental decisions will jeopard-
ize the health or safety of the child, or have a potential for signifi-
cant social burdens.” Id. at 233–34. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 27 of 173
The Supreme Court’s other parental-rights cases mostly in-
volve custody issues. Stanley v. Illinois, 405 U.S. 645 (1972), for ex-
ample, concerned an unwed father’s challenge to Illinois’s proce-
dure for custody determinations upon the death of the mother. Id.
at 646–47. The Court held that the procedure—which presumed
unwed fathers are unfit to raise their children—was at odds with
the Fourteenth Amendment. Id. at 657–58. Along the way, the
Court recognized that the father’s interest in “retaining custody of
his children is cognizable and substantial” and that a parent’s inter-
est “in the companionship, care, custody, and management of his
or her children ‘come[s] to this Court with a momentum for re-
spect lacking when appeal is made to liberties which derive merely
from shifting economic arrangements.’” Id. at 651–52 (alteration
in the original) (quoting Kovacs v. Cooper, 336 U.S. 77, 95 (1949)
(Frankfurter, J., concurring)). At issue in Quilloin v. Walcott, 434
U.S. 246 (1978), was the constitutionality of the application of
Georgia’s adoption law “to deny an unwed father authority to pre-
vent adoption of his illegitimate child.” Id. at 247. While the Court
recognized that “the relationship between parent and child is con-
stitutionally protected” and said that “it is now firmly established
that ‘freedom of personal choice in matters of . . . family life is one
of the liberties protected by the Due Process Clause of the Four-
teenth Amendment,’” it concluded that Georgia’s law was not un-
constitutional as applied. Id. at 255 (alteration in the original)
(quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–640
(1974)). USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 28 of 173
In Santosky v. Kramer, 455 U.S. 745 (1982), the Supreme
Court considered the constitutionality of New York’s statutory
scheme governing the termination of parental rights in cases of per-
manent neglect. Id. at 748–52. The Court held that the parents in
that case were deprived of due process, as the statute at issue re-
quired only a “fair preponderance of the evidence” to support a
finding of permanent neglect. Id. at 747, 768. Along the way to
that conclusion, the Court referenced the “fundamental liberty in-
terest of natural parents in the care, custody, and management of
their child.” Id. at 753.
And Troxel concerned the constitutionality of Washington’s
statute that afforded “[a]ny person” the ability to petition a court
for visitation rights. 530 U.S. at 61 (plurality opinion). A plurality
of the Court said that this statute—which allowed a state court to
grant such rights if in the best interest of the child, even if the child’s
parent opposed—unconstitutionally infringed on “the fundamen-
tal right of parents to make decisions concerning the care, custody,
and control of their children,” as applied to facts of the case at issue.
Id. at 66–67.
We are not free to divorce the facts of these cases from the
rules they set forth. See, e.g., Edwards v. Prime, Inc., 602 F.3d 1276,
1298 (11th Cir. 2010) (“[R]egardless of what a court says in its opin-
ion, the decision can hold nothing beyond the facts of that case.”);
Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir.
2003) (“Whatever their opinions say, judicial decisions cannot
make law beyond the facts of the cases in which those decisions are USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 29 of 173
announced.”); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 333
(1827) (Marshall, C.J., dissenting) (“[T]he positive authority of a de-
cision is co-extensive only with the facts on which it is made.”). As
the Supreme Court recently reminded, judicial “opinions dispose
of discrete cases and controversies and they must be read with a
careful eye to context.” Nat’l Pork Producers Council v. Ross, 598 U.S.
356, 373–74 (2023); accord Illinois v. Lidster,540 U.S. 419, 424
(2004)
(explaining that courts should “read general language in judicial
opinions . . . as referring in context to circumstances similar to the
circumstances then before the Court and not referring to quite dif-
ferent circumstances that the Court was not then considering”).
Therefore, without an accompanying historical showing justifying
such a move, we cannot extend the holdings of these cases to the
facts here.
Both Judge Jordan and Judge Rosenbaum rely most heavily
on another case, Parham v. J. R., 442 U.S. 584 (1979). But no matter
how many times they turn to Parham, it does not “control[] the
analysis.” Rosenbaum Dis. Op. at 29. As we explained in the panel
opinion, Parham does not provide that the Fourteenth Amendment
guarantees parents the ability to disregard state regulations on
available medical care. Eknes-Tucker II, 80 F.4th at 1222–23. And a
sister circuit agrees. See L.W. ex rel. Williams v. Skrmetti, 83 F.4th
460, 477 (6th Cir. 2023) (“Nothing in Parham supports an affirma-
tive right to receive medical care, whether for a child or an adult,
that a state reasonably bans.”). USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 30 of 173
In Parham, a group of minors brought a procedural-due-pro-
cess challenge to Georgia’s statutory scheme governing the admis-
sion of children to mental hospitals. 442 U.S. at 587–88. Im-
portantly, this scheme allowed parents to apply for their child’s
hospitalization. Id. at 590–91. Judges Jordan and Rosenbaum are
correct that the Court considered the interests of the parents in
reaching a conclusion as to the procedural protections owed to the
plaintiffs under the Due Process Clause. Id. at 601–04. Drawing
from its precedents, the Court said that a parent’s “high duty . . . to
recognize and prepare [their children] for additional obligations”
includes a duty to “recognize symptoms of illness and to seek and
follow medical advice.” Id. at 602 (second alteration in the original)
(quoting Pierce, 268 U.S. at 535). Because of this, the Court said that
the presence of disagreement between parent and child as to the
proper course of treatment “does not diminish the parents’ author-
ity to decide what is best for the child,” and does not provide cause
for governmental intervention. Id. at 603–04. With respect to vol-
untary commitment, the Court concluded that its precedents “per-
mit the parents to retain a substantial, if not the dominant, role in
the decision, absent a finding of neglect or abuse, and that the tra-
ditional presumption that the parents act in the best interests of
their child should apply.” Id. at 604. But, in light of “the child’s
rights and the nature of the commitment decision,” the Court also
cautioned that “parents cannot always have absolute and unre-
viewable discretion to decide whether to have a child institutional-
ized.” Id. Instead, the Court said, any decision is “subject to a phy-
sician’s independent examination and medical judgment.” Id.
USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 31 of 173
The Court ultimately concluded that “some kind of inquiry
should be made by a ‘neutral factfinder’ to determine whether the
statutory requirements for admission are satisfied,” but it rejected
a “formalized, factfinding hearing” because that could lead to a
“significant intrusion into the parent-child relationship.” Id. at 606,
610. “Pitting the parents and child as adversaries,” said the Court,
“often will be at odds with the presumption that parents act in the
best interests of their child.” Id. at 610.
In determining Parham’s relevance to this case, context is
again key. See Nat’l Pork Producers, 598 U.S. at 373–74. In other
words, we must not “rely[] on general statements from [Parham]
dealing with governmental actions not even remotely similar to
those involved here.” Parham, 442 U.S. at 608 n.16. While this case
is about a conflict between the Parent Plaintiffs and Alabama over
substantive-due-process requirements, Parham was concerned with
procedural-due-process requirements in a context that could pit
parents and children “as adversaries.” Id. at 610. And in Parham,
the question before the Court involved a Georgia law permitting
institutionalization as a state-approved form of medical treatment.
As we pointed out in the panel opinion, the question in Parham was
not whether, under the Fourteenth Amendment, a Georgia law
barring institutionalization had to give way in light of a parent’s de-
sire to institutionalize their child. See Eknes-Tucker II, 80 F.4th at
1223. Parham did not say, for example, that Georgia was constitu-
tionally forbidden from ending its voluntary commitment scheme
if parents disagreed with that decision. In fact, the Court indicated
that the opposite was true. See Parham, 442 U.S. at 604 (“Parents in USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 32 of 173
Georgia in no sense have an absolute right to commit their children
to state mental hospitals; the statute requires the superintendent of
each regional hospital to exercise independent judgment as to the
child’s need for confinement.”). The Parham Court also recognized
that “a state is not without constitutional control over parental dis-
cretion in dealing with children when their physical or mental
health is jeopardized.” Id. at 603. 11 Importantly, the Supreme Court later rejected an attempt to turn Parham into the decision some of the dissenters want it to be. In Cruzan ex rel. Cruzan v. Director, Missouri, Department of Health,497 U.S. 261
(1990), the Court refused to read Parham, “a decision
which allowed a State to rely on family decisionmaking,” as setting
forth “a constitutional requirement that the State recognize such
USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 33 of 173
decisionmaking.” Id. at 286. “[C]onstitutional law,” according to
the Court, “does not work that way.” Id.
Attempts to distinguish away Cruzan come up empty. Judge
Rosenbaum reads Parham to recognize a fundamental right and
then says that Cruzan, with its different facts, did not limit that
right. See Rosenbaum Dis. Op. at 19–23. But Cruzan did not distin-
guish Parham on any of the grounds offered by Judge Rosenbaum.
Instead, the Court in Cruzan disagreed with the petitioner’s view of
“constitutional law,” as evidenced by the petitioner’s reading of
Parham, which is like the reading offered by Judges Jordan and Ros-
enbaum. See Cruzan, 497 U.S. at 286. The panel’s refusal to adopt
a view of constitutional law rejected by the Supreme Court is
hardly “sidestep[ping]” Supreme Court precedent. Rosenbaum
Dis. Op. at 23.
In short, while some of the dissenters chant Parham “like a
mantra,” they “cannot give [Parham] substance that it lacks.” Sec.
& Exch. Comm’n v. Jarkesy, 144 S. Ct. 2117, 2138 (2024). Parham
does not lead to the conclusion that the Parent Plaintiffs have a
constitutional right to override Alabama’s decision regarding the
availability of the medications prohibited for use by minors under
the Act.
Thus, though purporting to simply apply Supreme Court
precedent, both Judge Jordan and Judge Rosenbaum would have
us mark out new terrain. 12 While the Supreme Court’s substantive- USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 34 of 173
due-process precedents do not rule out such a move, they do de-
mand a showing that a right is “deeply rooted in [our] history and
tradition” and “essential to our Nation’s ‘scheme of ordered lib-
erty.’” Dobbs, 597 U.S. at 237 (alteration in the original) (quoting
Timbs v. Indiana, 586 U.S. 146, 150 (2019)). To conduct this inquiry,
we must engage “in a careful analysis of the history of the right at
issue.” Id. at 238. This analysis is “essential whenever we are asked
to recognize a new component of the ‘liberty’ protected by the Due
Process Clause because the term ‘liberty’ alone provides little guid-
ance.” Id. at 239. It also guards against “usurp[ing] authority that
the Constitution entrusts to the people’s elected representatives”
and engaging in “freewheeling judicial policymaking.” Id. at 239–
40.
The approach taken by the district court—and by extension
those defending its decision—does not pay “careful ‘respect [to] the
teachings of history.’” Moore v. City of East Cleveland, 431 U.S. 494,
503(1977) (plurality opinion) (quoting Griswold v. Connecticut,381 U.S. 479, 501
(1965) (Harlan, J., concurring in the judgment)). The
Supreme Court’s opinion in Timbs traced the right at issue in that
case “back to [the] Magna Carta, Blackstone’s Commentaries, and
35 of the 37 state constitutions in effect at the ratification of the
court, and the Appellees. Eknes-Tucker II, 80 F.4th at 1223–24, 1223 n.15. Judge
Jordan criticizes the panel’s characterization of Bendiburg v. Dempsey, 909 F.2d
463 (11th Cir. 1990), Jordan Dis. Op. at 3–5, but I do not see how his criticism
ultimately supports his argument. In other words, even if we assume Bendi-
burg is “largely irrelevant,” id. at 5, this does not change the fact that this
Court’s cases do not support Judge Jordan’s reading of the Due Process Clause. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 35 of 173
Fourteenth Amendment.” Dobbs, 597 U.S. at 238 (citing Timbs, 586
U.S. at 151–54). And the Supreme Court’s opinion in Glucksberg
“surveyed more than 700 years of ‘Anglo-American common law
tradition.’” Id. at 239 (quoting Glucksberg, 521 U.S. at 711). But the
district court failed to point to any ratification-era support for its
decision—“no state constitutional provision, no statute, no judicial
decision, [and] no learned treatise.” Id. at 251; see Eknes-Tucker II,
80 F.4th at 1221 (“[T]he district court’s order does not feature any
discussion of the history of the use of puberty blockers or cross-sex
hormone treatment or otherwise explain how that history informs
the meaning of the Fourteenth Amendment at the time it was rat-
ified—July 9, 1868.”). 13
Judges Jordan and Rosenbaum similarly fail to supply the
needed historical support. This holds true even if we assume that
they correctly framed the alleged right at stake. Finding the proper
level of specificity does not exempt one from “engag[ing] in a care-
ful analysis of the history of the right at issue.” Dobbs, 597 U.S. at
238. And neither Judge Jordan nor Judge Rosenbaum has demon-
strated that the ability to obtain medically-approved or non-exper-
imental treatment, despite state regulation to the contrary, is
USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 36 of 173
“deeply rooted in [our] history and tradition.” Id. at 237 (alteration
in the original) (quoting Timbs, 586 U.S. at 150). If their understand-
ing of the Due Process Clause was correct, we would expect to see
some evidence of such a right’s existence before and after the Four-
teenth Amendment’s ratification. But, at least on the arguments
presented in this case, no one comes close to demonstrating the
existence of a right “deeply rooted in this Nation’s history and tra-
dition” and “implicit in the concept of ordered liberty.” Id. at 231
(quoting Glucksberg, 521 U.S. at 721).
This lack of history should not be surprising given that
“States traditionally have had great latitude under their police pow-
ers to legislate as to the protection of the lives, limbs, health, com-
fort, and quiet of all persons.” Medtronic, Inc. v. Lohr, 518 U.S. 470,
475(1996) (quoting Metro. Life Ins. Co. v. Massachusetts,471 U.S. 724, 756
(1985)); cf. Muñoz, 144 S. Ct. at 1823 (refusing to recognize a
right under Glucksberg when “the through line of history” is recog-
nition of the government’s power to regulate). Included within
these police powers is the authority to legislate to “preserv[e] and
promot[e] the welfare of the child,” Santosky, 455 U.S. at 766, and
to “safeguard[] the physical and psychological well-being of a mi-
nor,” Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty., 457 U.S.
596, 607 (1982), even if, in some cases, this limits parental discre-
tion, see Prince, 321 U.S. at 167. Indeed, the Supreme Court has
“sustained legislation aimed at protecting the physical and emo-
tional well-being of youth even when the laws have operated in the
sensitive area of constitutionally protected rights.” New York v. Fer-
ber, 458 U.S. 747, 757 (1982). USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 37 of 173
Importantly, a state’s exercise of this authority is not contin-
gent on the approval of the expert class. The Constitution’s con-
tours are not shaped by expert opinion. See Dobbs, 597 U.S. at 272–
73 (suggesting that the position of groups like the American Medi-
cal Association does not “shed light on the meaning of the Consti-
tution”); Otto v. City of Boca Raton, 981 F.3d 854, 869 (11th Cir. 2020)
(explaining that “institutional positions cannot define the bounda-
ries of constitutional rights”). “[F]rom time immemorial,” the
states have regulated those who practice medicine. Dent v. West
Virginia, 129 U.S. 114, 122(1889); see Watson v. Maryland,218 U.S. 173, 176
(1910) (“It is too well settled to require discussion at this
day that the police power of the states extends to the regulation of
certain trades and callings, particularly those which closely concern
the public health.”). And the Due Process Clause does not mandate
the opposite arrangement.
Additionally, neither Judge Jordan nor Judge Rosenbaum
has assembled a historical record demonstrating that adults them-
selves possess the constitutional right to access the medications at
issue, or any specific medication, for that matter. And the weight
of the authority indicates that the opposite is true. Many of our
sister circuits “have rejected arguments that the Constitution pro-
vides an affirmative right of access to particular medical treatments
reasonably prohibited by the Government.” Abigail All. for Better
Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 710
(D.C. Cir. 2007) (en banc); see id. at 710 n.18 (collecting cases);
Mitchell v. Clayton, 995 F.2d 772, 775 (7th Cir. 1993) (“[M]ost federal
courts have held that a patient does not have a constitutional right USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 38 of 173
to obtain a particular type of treatment or to obtain treatment from
a particular provider if the government has reasonably prohibited
that type of treatment or provider.”). Instead, “our Nation’s his-
tory evidences increasing regulation of drugs as both the ability of
government to address these risks has increased and the risks asso-
ciated with drugs have become apparent.” Abigail All., 495 F.3d at
711. Because we have recognized that a parent’s right to “make
decisions for his [son or daughter] can be no greater than his rights
to make medical decisions for himself,” Doe ex rel. Doe v. Pub. Health
Tr. of Dade Cnty., 696 F.2d 901, 903 (11th Cir. 1983), these cases
strongly support the result reached by the panel opinion. This is
especially true because the “state’s authority over children’s activi-
ties is broader than over like actions of adults.” Prince, 321 U.S. at
168.
For all these reasons, the panel was correct to conclude that
the Parent Plaintiffs have failed to establish the existence of a fun-
damental right. I write further, though, to highlight additional
doubts that I have about the Parent Plaintiffs’ arguments.
First, even if the historical record lent credence to the idea
that there was a parental right to obtain medically approved or
non-experimental medications in the face of governmental prohi-
bition, I am skeptical that this right would be implicated here. “[I]n
areas where there is medical and scientific uncertainty,” state legis-
latures are afforded “wide discretion to pass legislation.” Gonzales
v. Carhart, 550 U.S. 124, 163 (2007). And with this wide discretion
comes an exceedingly narrow role for federal courts. If it were USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 39 of 173
otherwise, we would often find ourselves answering questions that
should be answered by the political branches. Instead of merely
“say[ing] what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch)
137, 177 (1803), we would be “decid[ing] the proper balance be-
tween the uncertain risks and benefits of medical technology,” Ab-
igail All., 495 F.3d at 713, and imposing a “constitutional straight-
jacket” in the process, Skrmetti, 83 F.4th at 473. That is not our role.
Below, the district court extended the Constitution’s protec-
tions despite considerable uncertainty, based in part on its conclu-
sion that Alabama failed to produce “evidence showing that transi-
tioning medications jeopardize the health and safety of minors suf-
fering from gender dysphoria.” Eknes-Tucker I, 603 F. Supp. 3d at
1145. But that statement is not quite right. 14 As I explain in my
discussion of rational-basis review, Alabama did in fact produce ev-
idence to that effect. 15 See infra at 43–47. And recent revelations
only serve to confirm the impropriety of the district court’s inter-
vention. I make note of them not because they change our review
of the district court’s order, but because they highlight the issues
USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 40 of 173
that often arise when courts extend the Constitution’s protections
to areas subject to all sorts of uncertainty.
For example, when the district court entered the order un-
der review, it concluded that “no country or state in the world cat-
egorically bans the[] use” of puberty blockers and cross-sex hor-
mones “as Alabama has.” Eknes-Tucker I, 603 F. Supp. 3d at 1145.
But other countries have started to adopt Alabama’s position. In
March 2024, England’s NHS announced that puberty blockers are
no longer available as a routine treatment for English minors suf-
fering from gender dysphoria. NHS “concluded that there is not
enough evidence to support the safety or clinical effectiveness” of
such drugs “to make the treatment routinely available at this
time.” 16 NHS Clinical Policy, supra n.3, at 3. And as noted earlier,
the UK has also temporarily banned puberty blockers (with limited
exceptions) through an emergency order, which the UK’s High
Court recently sustained. See TransActual CIC [2024] EWHC 1936
(Admin), ¶¶ 142–48, 257.
The district court also relied heavily on the Standards of
Care promulgated by WPATH, Eknes-Tucker I, F. Supp. 3d at 1138–
39, 1145, which one dissenter considers the “leading authority” in USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 41 of 173
this area. Rosenbaum Dis. Op. at 29. But recent revelations indi-
cate that WPATH’s lodestar is ideology, not science. For example,
in one communication, a contributor to WPATH’s most recent
Standards of Care frankly stated, “[o]ur concerns, echoed by the
social justice lawyers we spoke with, is that evidence-based review
reveals little or no evidence and puts us in an untenable position in
terms of affecting policy or winning lawsuits.” This only reinforces
the district court’s improper reliance on the scientific claims of an
advocacy organization to craft constitutional law. Indeed, as oth-
ers have recognized, WPATH’s Standards of Care “reflect not con-
sensus, but merely one side in a sharply contested medical debate
over sex reassignment surgery.” Gibson v. Collier, 920 F.3d 212, 221
(5th Cir. 2019); see also Edmo v. Corizon, Inc., 949 F.3d 489, 497 (9th
Cir. 2020) (O’Scannlain, J., opinion respecting the denial of rehear-
ing en banc) (“The WPATH Standards are merely criteria promul-
gated by a controversial private organization with a declared point
of view.”). 17
These revelations only further underscore the reality that a
judge is not fit, in a preliminary posture and on a limited record, to
remove matters like this one from an ongoing public debate. Even
assuming parents possessed a right to compel access to certain USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 42 of 173
medical treatments for their children, this right certainly does not
include the ability to access substances that gravely threaten a
child’s development. Cf. Prince, 321 U.S. at 165 (“It is the interest
of youth itself, and of the whole community, that children be both
safeguarded from abuses and given opportunities for growth into
free and independent well-developed men and citizens.”). And if it
turns out that the substances at issue here have such effects, a judi-
cial ruling to the contrary would facilitate, rather than prevent, ir-
reparable harm.
Some substantive-due-process cases may be hard. Jordan
Dis. Op. at 1. This one is not. Judge Jordan reminds us “that it is a
constitution we are expounding.” Jordan Dis. Op. at 2 (alteration
adopted) (quoting Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398,
443(1934)). 18 But “[p]recisely because ‘it is a constitution we are expounding,’ we ought not to take liberties with it.” Nat’l Mut. Ins. Co. of Dist. Of Col. v. Tidewater Transfer Co.,337 U.S. 582, 647
(1949)
(Frankfurter, J., dissenting) (quoting McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 407 (1819)). Our legal tradition rightly entrusts par-
ents with broad authority in the lives of their children. But that USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 43 of 173
tradition also provides no basis for concluding that this authority
extends to the circumstances presented by this case. The district
court thus erred by applying heightened scrutiny. The Act need
only satisfy the rational-basis test, and the Parent Plaintiffs do not
have a substantial likelihood of success in arguing that it does not.
See infra at 42–52.
B. Equal Protection
Judge Rosenbaum’s and Judge Wilson’s dissents also disa-
gree with our equal-protection holding, arguing that the Act dis-
criminates based on sex and transgender status. Rosenbaum Dis.
Op. at 46–63; Wilson Dis. Op. at 3–5. 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 Pro-
tection Clause. These points are discussed in turn below.
1. The Act does not discriminate based on sex.
Supposedly, the Act unconstitutionally discriminates based
on sex because “but for the Minors’ birth-assigned sex,” they could
access puberty blockers and cross-sex hormones. Rosenbaum Dis.
Op. at 49. For example, Judge Rosenbaum notes that the Act pro-
hibits a “birth-assigned boy” from “tak[ing] estrogen” for the pro-
scribed purpose while a “birth-assigned girl” can take estrogen to
cure “an estrogen deficiency.” Id. In other words, Judge Rosen-
baum argues that the Equal Protection Clause requires Alabama to
make cross-sex hormones and puberty blockers available for the USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 44 of 173
proscribed purpose so long as Alabama allows the use of puberty
blockers and cross-sex hormones for other purposes.
Therein lies the problem with her reasoning: The Act dis-
criminates based on purpose, not sex. The Act prohibits everyone
under the age of nineteen—regardless of their sex—from using
cross-sex hormones or puberty blockers “for the purpose of attempt-
ing to alter the appearance of or affirm [their] perception of [their]
gender or sex, if that appearance or perception is inconsistent with
[their] sex.” Act § 3–4(a) (emphasis added); Ala. Code § 43-8-1(18).
Likewise, the Act allows everyone under the age of nineteen—re-
gardless of their sex—to use cross-sex hormones and puberty block-
ers for other purposes, such as treating central precocious puberty.
Act § 4(b)(2).
True, the Act uses sex-specific terminology. See Wilson Dis.
Op. at 4–5. The Act prohibits prescribing or administering “su-
praphysiologic doses of testosterone . . . to females” and prescrib-
ing or administering “supraphysiologic doses of estrogen to males.”
Act § 4(a)(2)–(3). But this sex-specific language actually preserves
evenhandedness. Because of biological realities, the cross-sex hor-
mone regimen that one undergoes is necessarily dependent on
one’s sex. Males cannot use testosterone for the prohibited pur-
pose, and females cannot use estrogen for the prohibited purpose.
To the extent that the Act includes provisions that reference only
one sex, see id., it simply reflects these realities to equally proscribe
cross-sex hormones for both males and females. If the Act re-
stricted only the use of testosterone—but not estrogen—for the USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 45 of 173
proscribed purpose, it would discriminate against females. And if
the Act restricted only the use of estrogen—but not testosterone—
for the proscribed purpose, it would discriminate against males. In
other words, the Act uses sex-specific language because it regulates
sex-specific medications. And, as noted in our panel opinion, “[t]he
regulation of a medical procedure that only one sex can undergo
does not trigger heightened constitutional scrutiny unless the reg-
ulation is a ‘mere pretex[t] designed to effect an invidious discrim-
ination against members of one sex or the other.’” Eknes-Tucker II,
80 F.4th at 1229 (alterations in the original) (quoting Dobbs, 597 U.S.
at 236).
Judge Rosenbaum and Judge Wilson both invoke Bostock v.
Clayton County, 590 U.S. 644 (2020). Rosenbaum Dis. Op. at 50, 54–
56; Wilson Dis. Op. at 3–4. But the meaning of the Equal Protec-
tion Clause was not at issue in Bostock, and the Supreme Court ex-
pressly declined to “prejudge” whether its reasoning applied to
other laws “that prohibit sex discrimination.” Bostock, 590 U.S. at
681. Notwithstanding Bostock’s limited holding, Judge Rosenbaum
reads Bostock to announce a new principle that applies to every anti-
discrimination provision in federal law, including a constitutional
provision that was ratified in 1868. Supposedly, after Bostock, all
classifications “based on transgender status” are classifications
“based on sex.” Rosenbaum Dis. Op. at 54. That reading ignores
the reasoning in Bostock.
Bostock relied heavily on the unique text of Title VII—
particularly, the words “because of,” “otherwise . . . discriminate USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 46 of 173
against,” and “individual.” Eknes-Tucker II, 80 F.4th at 1228–29 (al-
teration in the original) (quoting Bostock, 590 U.S. at 656–58); see 42
U.S.C. § 2000e-2(a)(1). The Equal Protection Clause does not in-
clude any of this language. See U.S. Const. amend. XIV, § 1 (“No
State shall . . . deny to any person within its jurisdiction the equal
protection of the laws.”). As Justice Gorsuch—the author of Bos-
tock—observed when comparing the text of Title VI and the text of
the Equal Protection Clause, it “is implausible on its face” that
“such differently worded provisions should mean the same thing.”
Students for Fair Admissions, Inc. v. President & Fellows of Harvard
Coll., 600 U.S. 181, 308 (2023) (Gorsuch, J., concurring). Justice
Gorsuch’s point is no less relevant to Title VII and the Equal Pro-
tection Clause. See Skrmetti, 83 F.4th at 484 (finding that the rea-
soning of Bostock “applies only to Title VII”); Brandt ex rel. Brandt v.
Rutledge, No. 21-2875, 2022 WL 16957734, at *1 n.1 (8th Cir. Nov.
16, 2022) (Stras, J., dissenting from denial of rehearing en banc) (ex-
pressing skepticism that Bostock’s reasoning applies to the Equal
Protection Clause because the Fourteenth Amendment “predates
Title VII by nearly a century” and contains language that is “not
similar in any way” to Title VII’s); cf. Fowler v. Stitt, 104 F.4th 770,
801–02 (10th Cir. 2024) (Hartz, J., dissenting in part) (disagreeing
with the majority’s reflexive application of Bostock to the Equal Pro-
tection Clause). Because the language of the Equal Protection
Clause does not resemble the language of Title VII, Bostock’s rea-
soning does not apply here.
Next, two dissents cite Glenn v. Brumby, 663 F.3d 1312 (11th
Cir. 2011), and both claim that we distinguished Brumby by USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 47 of 173
confining it to employment discrimination. Rosenbaum Dis. Op.
at 57; Wilson Dis. Op. at 3–4. Respectfully, the majority opinion
and Judge Brasher’s concurrence explained that Brumby is distin-
guishable because Brumby dealt with sex-based stereotypes about
how men should dress, not biological realities. Eknes-Tucker II, 80
F.4th at 1229 (“Insofar as section 4(a)(1)–(3) involves sex, it simply
reflects biological differences between males and females, not ste-
reotypes associated with either sex.”); id. at 1234 (Brasher, J., con-
curring) (“Unlike the employer’s decision in [Brumby], Alabama’s
statute does not fit the mold of a sex-based stereotype. The statute
isn’t based on a socially constructed generalization about the way
men or women should behave.”).
Judge Rosenbaum responds that it is a form of stereotyping
to prohibit minors from taking transitioning medications. See Ros-
enbaum Dis. Op. at 52–53. But there is a difference between pro-
hibiting biological men from wearing dresses, see Brumby, 663 F.3d
at 1314, 1318–19, and prohibiting minor boys from taking estrogen
“for the purpose of attempting to alter the appearance of or affirm
the minor’s perception of his . . . gender or sex, if that appearance
or perception is inconsistent with [his] sex,” Act § 4(a). The former
restriction is a stereotype about how men should dress, the latter
restriction is based on physical differences between males and fe-
males. And, as the Supreme Court has recognized, “[p]hysical dif-
ferences between men and women . . . are enduring.” United States
v. Virginia, 518 U.S. 515, 533 (1996). The recognition of those phys-
ical differences, which are inherent in the biology of every man and
woman, “is not a stereotype.” Nguyen v. I.N.S., 533 U.S. 53, 68 USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 48 of 173
(2001); see also Eknes-Tucker II, 80 F.4th at 1234 (Brasher J., concur-
ring).
Overall, the Act applies equally to minor males and minor
females. Both sexes can use puberty blockers and cross-sex hor-
mones to treat a medical disorder, Act § 4(b)(2), but neither sex
may use puberty blockers and cross-sex hormones “for the purpose
of attempting to alter the appearance of or affirm [their] perception
of [their] gender or sex, if that appearance or perception is incon-
sistent with [their] sex.” Id. § 4(a). Thus, our panel correctly held
that the Act is subject to rational-basis scrutiny, not intermediate
scrutiny. Eknes-Tucker II, 80 F.4th at 1230.
2. The text of the Act is neutral as to transgender status, and
transgender status is not a quasi-suspect classification.
Judge Rosenbaum also claims that the Act triggers interme-
diate scrutiny because transgender status is a quasi-suspect classifi-
cation. Rosenbaum Dis. Op. at 58–63. But as our panel opinion
explained, even if transgender status is a quasi-suspect classifica-
tion, the Act would not trigger heightened scrutiny because it dis-
criminates solely based on “purpose.” Act § 4(a); Eknes-Tucker II,
80 F.4th at 1228. Under the plain terms of the Act, any minor can
access puberty blockers and cross-sex hormones for an acceptable
purpose, such as treating central precocious puberty. Act
§ 4(b)(2). 19 To be sure, a facially evenhanded regulation can be USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 49 of 173
subject to heightened scrutiny if it is a mere pretext for invidious
discrimination against a protected class. See Shaw v. Reno, 509 U.S.
630, 643–44 (1993). But the district court made no findings of such
a pretext here. Judge Rosenbaum’s argument fails on this point
alone.
More generally, transgender status is not a quasi-suspect
classification in the first place. While sitting en banc, we already
declined to recognize transgender status as a quasi-suspect classifi-
cation. See Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th
791, 803 n.5 (11th Cir. 2022) (en banc) (expressing “grave ‘doubt’
that transgender persons constitute a quasi-suspect class”). Fur-
ther, the Supreme Court “has not recognized any new constitu-
tionally protected classes in over [five] decades, and instead has re-
peatedly declined to do so.” Ondo v. City of Cleveland, 795 F.3d 597,
609 (6th Cir. 2015). Since 1973, the Supreme Court has declined to
recognize poverty, age, and mental disability as suspect or quasi-
suspect classifications. See San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1, 28–29 (1973) (poverty); Massachusetts Bd. of Ret. v. Mur-
gia, 427 U.S. 307, 313–14 (1976) (age); City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 442 (1985) (mental disability); see also Lyng
if that’s true, then not everyone who seeks medications “for the purpose of
attempting to alter the appearance of” their “sex,” is, in fact, transgender. Act
§ 4(a). Thus, if Judge Rosenbaum is correct, then the Act does not discriminate
based on transgender status—not everyone who seeks the relevant medication
for the relevant purpose would, in fact, be transgender. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 50 of 173
v. Castillo, 477 U.S. 635, 638 (1986) (“Close relatives are not a ‘sus-
pect’ or ‘quasi-suspect’ class.”).
Judge Rosenbaum would chart new territory by treating
transgender status as a quasi-suspect classification. The district
court never held that, see Eknes-Tucker I, 603 F. Supp. 3d at 1146–
48, and neither Judge Rosenbaum’s dissent nor Judge Wilson’s dis-
sent cite any record evidence suggesting that transgender persons
are a “discrete group” defined by “obvious, immutable, or distin-
guishing characteristics” and that they are “politically powerless.”
Lyng, 477 U.S. at 638. Unlike race, sex, or national origin,
transgender status is not “an immutable characteristic determined
solely by the accident of birth.” Frontiero v. Richardson, 411 U.S.
677, 686 (1973). Studies show that 61% to 88% of children with
gender dysphoria become comfortable with their sex “over the
course of puberty.” A trait is not “immutable” if it is “subject
to . . . change.” Adams, 57 F.4th at 807 (quoting Immutable, Oxford
English Dictionary (2d ed. 1989)).
Furthermore, transgender persons are not a “discrete
group” that exhibits “obvious” or “distinguishing” characteristics.
Lyng, 477 U.S. at 638. WPATH itself defines “transgender” as an
“[a]djective” used to describe anyone “who cross[es] or trans-
cend[s] culturally defined categories of gender.” Possible gender
identities described by WPATH and the American Psychological
Association include “boygirl,” “girlboy,” “genderqueer,” “bi-
gender,” “pangender,” “androgyne,” “genderless,” “gender neu-
tral,” “neutrois,” “agender,” and “genderfluid,” just to name a few. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 51 of 173
According to the American Psychological Association, possible
gender identities exist on a “wide spectrum” that defies the binary
nature of sex. That theory has no practical limits. Also, one of the
dissents argues that people are not truly “transgender” if they “ex-
perience some form of gender incongruence” but “ultimately em-
brace their birth-assigned gender or detransition.” Rosenbaum
Dis. Op. at 59. But if that’s true, then someone who currently iden-
tifies as a “boygirl,” for example, might not actually be transgender
based on their future self-perceptions or actions. A classification is
neither “obvious” nor “distinguishing” if it turns on a future that is
presently unknown. Like Rodriguez, this case “comes to us with no
definitive description of the classifying facts or delineation of the
disfavored class.” 411 U.S. at 19.
Finally, transgender people are not “politically powerless.”
Lyng, 477 U.S. at 638. “A national anti-discrimination law, Title VII,
protects transgender individuals in the employment setting,” and
“[f]ourteen States have passed laws specifically allowing some of
the treatments sought here.” Skrmetti, 83 F.4th at 487. The White
House recognizes an annual “Transgender Day of Visibility.” See
Proclamation No. 10724, 89 Fed. Reg. 22901 (March 29, 2024). The
Department of Justice is devoting considerable time and resources
as an intervenor plaintiff in this litigation. Twenty states and the
District of Columbia filed an amicus brief in support of the Plain-
tiffs. And every major law firm that has participated in this litiga-
tion has supported the Plaintiffs. All of these facts contradict a no-
tion of political powerlessness. True, Judge Rosenbaum cites sta-
tistics about the lamentable harassment that transgender people USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 52 of 173
experience, Rosenbaum Dis. Op. at 60–61, but Cleburne is clear that
“some degree of prejudice from at least part of the public at large”
is not sufficient. 473 U.S. at 445. Significantly, in Cleburne, the Su-
preme Court rejected the argument that mental disability is a sus-
pect classification, id. at 442–46, despite a history of compulsory
sterilization, exclusion from public schools, and a system of “state-
mandated segregation and degradation” “that in its virulence and
bigotry rivaled, and indeed paralleled, the worst excesses of Jim
Crow,” id. at 462–63 (Marshall, J., concurring in the judgment and
dissenting in part). And since Cleburne, the Supreme Court has
never recognized a new suspect or quasi-suspect classification.
Neither the Plaintiffs, nor the district court, nor the dissenters have
provided a basis for us to do so here.
Because the Act does not discriminate based on a suspect or
a quasi-suspect classification, the Act is subject to rational-basis re-
view. Id. at 440, 446. To satisfy rational-basis review, Alabama
needs only one “conceivable basis” to proscribe cross-sex hor-
mones and puberty blockers for minors. See Jones v. Governor of Flor-
ida, 975 F.3d 1016, 1034 (11th Cir. 2020) (en banc) (quoting FCC v.
Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993)). As explained in the
next section, there are many conceivable bases for the Act, and
thus, the Plaintiffs lack a substantial likelihood of success on their
due process and equal protection claims.
C. Rational-Basis Review
Under rational-basis review, the question “is simply whether
the challenged legislation is rationally related to a legitimate state USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 53 of 173
interest.” Lofton v. Sec’y of Dep’t of Child. & Fam. Servs., 358 F.3d
804, 818 (11th Cir. 2004). Alabama satisfied this remarkably lenient
standard for at least five reasons.
First, Alabama provided significant evidence that the medi-
cations covered by the Act are dangerous and ineffective. Alt-
hough the district court disagreed with that evidence, it acknowl-
edged that Alabama “offer[ed] some evidence that transitioning
medications pose certain risks.” Eknes-Tucker I, 603 F. Supp. 3d at
1145. That is sufficient to satisfy the rational-basis test. The Ala-
bama legislature is entitled to look at the competing evidence and
draw its own conclusions. Heller, 509 U.S. at 319 (“[R]ational-basis
review in equal protection analysis ‘is not a license for courts to
judge the wisdom, fairness, or logic of legislative choices.’” (quot-
ing Beach Commc’ns, 508 U.S. at 313)). To be sure, Alabama did not
need to cite any “evidence or empirical data” supporting the Act.
Beach Commc’ns, 508 U.S. at 315. “[R]ational speculation” would
have been sufficient. Id. Even so, Alabama’s evidence of the dan-
gers of cross-sex hormones and puberty blockers was legion.
Alabama provided declarations from six medical experts—
three endocrinologists (including two pediatric endocrinologists),
a clinical psychologist, a psychotherapist, and a pediatrician—who
testified to the acute dangers posed to children by these medica-
tions. Alabama also submitted six journal articles and public-health
reports that documented concerning data and evidence about the
proscribed treatments. And Alabama provided written testimony
from detransitioners, including Sydney Wright (discussed above), USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 54 of 173
KathyGrace Duncan (Appendix A), Carol Frietas (Appendix B), and
Corinna Cohn (Appendix C). Although the district court’s order
discussed the testimony of Dr. James Cantor and Sydney Wright,
the district court never mentioned any of the other evidence de-
scribed in this paragraph. See Eknes-Tucker I, 603 F. Supp. 3d at
1142–43, 1145–46.
Alabama also presented evidence that healthcare authorities
and medical organizations in several countries—including Eng-
land, Finland, and Sweden—urge (and, in some cases, mandate)
that doctors rarely prescribe puberty blockers and cross-sex hor-
mones. In Sweden, for example, doctors can provide minors with
puberty blockers and cross-sex hormones in “exceptional cases”
only. Sweden’s National Board of Health and Welfare determined
that “the risks of puberty suppressing treatment with GnRH-ana-
logues and gender-affirming hormonal treatment currently out-
weigh the possible benefits.”
The information that has emerged since the panel’s opinion
only confirms what the panel already concluded: Alabama has a
rational basis for the Act. As discussed earlier, in March 2024, for
example, England’s NHS announced “that there is not enough ev-
idence to support the safety or clinical effectiveness of [puberty
suppressing hormones] to make the treatment routinely available”
in England. NHS Clinical Policy, supra n.3, at 3. And, in April 2024,
Dr. Hillary Cass published the results of a four-year review of pu-
berty blockers and cross-sex hormones in minors. See The Cass Re-
view, supra n.2. While formulating her report, Cass chaired a USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 55 of 173
policy working group that the NHS commissioned in January 2020.
Id. at 75. The policy working group systematically examined “the
published evidence on the use of puberty blockers and [cross-sex]
hormones in children and young people” with the goal of “in-
form[ing] [NHS’s] policy position on their future use.” Id. Cass
found “no evidence that puberty blockers improve body image or
dysphoria, and very limited evidence for positive mental health
outcomes.” Id. at 179. Cass also concluded that puberty blockers
may negatively impact “neurocognitive development” and will
likely compromise a patient’s “bone density.” Id. at 178. Regarding
cross-sex hormones, Cass’s “systematic review” found inadequate
evidence supporting the “widespread” view—expressed in Judge
Rosenbaum’s dissent—that cross-sex hormones “reduce[] suicide
risk” for children suffering from gender dysphoria. Id. at 186, 195.
Cass also provided multiple reasons to question the reliability of
WPATH and concluded that the most recent iteration of the Stand-
ards of Care “overstates the strength of the evidence” supporting
its recommendations. Id. at 132; see also id. at 129–30 (concluding
that WPATH’s Standards suffer from a low “[r]igour of develop-
ment” and the lack of “[e]ditorial independence,” among other
things).
Second, Alabama had a rational basis to prohibit cross-sex
hormones and the other proscribed medications for minors be-
cause minors cannot appreciate the life-altering nature of the med-
ical treatments. The law frequently limits the ability of minors to
consent to certain activities. And evidence in the record suggests
that minors are incapable of knowingly consenting to the use of the USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 56 of 173
proscribed medications. Alabama presented evidence from many
detransitioners who uniformly testified that they were not aware
of the long-term impacts of the treatments they underwent. Next,
Alabama provided declarations from several parents who testified
to the negative effects of cross-sex hormones and puberty blockers
on their children, even if their children suffered from gender dys-
phoria and desired medical transition. Furthermore, Alabama pre-
sented written testimony from nine parents who said that doctors,
therapists, and other practitioners pressured them to start their
children on cross-sex hormones and puberty blockers or otherwise
circumvented their wishes. For example, when one mother’s
twelve-year-old daughter said that she was a boy, the mother asked
her daughter’s gender clinic for a counseling referral before hor-
mone therapy. But an endocrinologist rebuffed the mother’s re-
quest, stating in front of the twelve-year-old daughter that the
mother needed “to get on board” with providing puberty blockers
and hormones if she did not “want [her] daughter to commit sui-
cide.”
This record evidence is consistent with information that has
come to light after the district court issued its order. As Dr. Cass
found in her April 2024 study, we know very little about the long-
term risks of these medications, which makes the idea of “informed
consent” nearly impossible for anyone, but especially for children
and adolescents. See The Cass Review, supra n.2, at 193–97.
Third, as discussed above, studies show that most children
with gender dysphoria grow out of it. As one of Alabama’s experts USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 57 of 173
testified, “every study without exception has come to the identical
conclusion: Among prepubescent children who feel gender dys-
phoric, the majority cease to want to be the other gender over the
course of puberty—ranging from 61–88% desistance across the
large, prospective studies.” Alabama also presented evidence that
children are starting to identify as transgender because of social
contagion, not gender dysphoria. Teenage girls, in particular, are
starting to suddenly identify as transgender even if they have no
history of gender dysphoria as children. And, according to one of
Alabama’s experts, “[t]he majority of cases appear to occur within
clusters of peers and in association with increased social media use
and especially among people with autism or other neurodevelop-
mental or mental health issues.” Even the Plaintiffs’ expert, Dr.
Linda Hawkins, testified that gender clinics are “seeing an increase
in youth . . . who are exploring gender . . . . [T]hat is something
that is gaining popularity right now.” Alabama has a legitimate in-
terest in preventing harm to children who often do not suffer from
gender dysphoria, and even if they do, likely will grow out of it. It
is thus rational to require children to wait to undergo this type of
medical treatment until they are adults.
Fourth, notwithstanding assurances from organizations like
WPATH, there are significant unknowns about these treatments,
which recent developments only serve to highlight. The district
court’s order relied on WPATH’s Standards of Care, Eknes-Tucker
I, 603 F. Supp. 3d at 1138–39, which claim to provide “the highest
standards” for “safe,” “effective,” and “evidence-based” treatment
for people suffering from gender dysphoria. Judge Rosenbaum also USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 58 of 173
suggests that courts should look to WPATH’s Standards of Care
for narrow tailoring purposes. Rosenbaum Dis. Op. at 44. But a
March 2024 leak of documents and audio recordings suggests that
WPATH is not genuine in its claim that these treatments are safe,
effective, and well understood, particularly for minors. See The
WPATH Files, supra n.4, at 72–241.
For instance, in a leaked recording of a WPATH Panel, Dr.
Daniel Metzger—an endocrinologist—frankly discussed the diffi-
culties of helping children and adolescents understand the effects
of cross-sex hormones and puberty blockers. Id. at 184–85. He
acknowledged, “the thing you have to remember about kids is that
we’re often explaining these sorts of things to people who haven’t
even had biology in high school yet.” Id. at 184. Later at the same
panel, he said, “it’s always a good theory that you talk about fertil-
ity preservation with a 14 year old, but I know I’m talking to a blank
wall.” Id. at 192. Another provider at the same panel discussed the
difficulty in helping nine-, ten-, and eleven-year-olds understand
the long-term effects of puberty blockers on their fertility. Id. at
193. “I’m definitely a little stumped,” she admitted. Id.
In one of the leaked documents, Dr. Marci Bowers—a gyne-
cological surgeon and WPATH’s President—states: “[A]cknowl-
edgement that de-transition exists to even a minor extent is consid-
ered off limits for many in our community.” Id. at 111. Bowers
agreed with this practice, continuing, “I do see talk of the [detran-
sition] phenomenon as distracting from the many challenges we
face.” Id. These recent revelations only further confirm the USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 59 of 173
unsettled nature of this field, the risks involved for Alabama’s
youth, and the need for judicial caution.
Finally, it is rational for Alabama to conclude that there are
alternatives to childhood use of cross-sex hormones and puberty
blockers. Although the suicide rate is high in the transgender com-
munity, Dr. Cass’s April 2024 study concluded that “there is no ev-
idence that gender-affirmative treatments reduce [suicidality.]” See
The Cass Review, supra n.2, at 195. The report continued that the
available evidence “suggests that these deaths are related to a range
of other complex psychosocial factors and to mental illness.” Id.
Alabama could rationally conclude that suicidality—which is a
mental-health problem—should be treated with counseling, medi-
cation, and other forms of psychotherapy.
Comparatively, none of the studies that Judge Rosenbaum’s
dissent relies on provide a solid basis for her claim that “studies
have repeatedly shown that gender-affirming hormone therapy
markedly decreases suicidality and depression among transgender
minors who want such care.” Rosenbaum Dis. Op. at 41 n.22. Start
with the Tordoff study. Judge Rosenbaum claims that puberty
blockers and “gender-affirming” hormones led to a “60% decrease
in depression” and a “73% decrease in suicidality.” Id; see Diana M.
Tordoff, et al., Mental Health Outcomes in Transgender and Nonbinary
Youths Receiving Gender-Affirming Care, 5 J. Am. Med. Ass’n Network
Open 1, (2022). But this is misleading, as almost all the participants
who did not take puberty blockers or cross-sex hormones dropped
out of the study before its conclusion, weakening any potential USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 60 of 173
conclusions. Tordoff, et al., Mental Health Outcomes, 5 J. Am. Med.
Ass’n Network Open at at 1; Tordoff, et al., Mental Health Outcomes,
Supplemental Online Content, eTable 2, eTable 3.
Next is the Green study. Judge Rosenbaum claims that this
study demonstrates a “40% decrease in depression and suicidality.”
Rosenbaum Dis. Op. at 41 n.22. It is true that the study represented
that receipt of hormone therapy was associated with lowered odds
of recent depression and the serious consideration of suicide in the
past year. Amy E. Green et al., Association of Gender-Affirming Hor-
mone Therapy With Depression, Thoughts of Suicide, and Attempted Su-
icide Among Transgender and Nonbinary Youth, 70 J. of Adolescent
Health 643, 647 (2022). But significantly, the authors also noted
that, because of the study’s cross-sectional design, “causation
[could not] be inferred.” Id. at 648.
Judge Rosenbaum next relies on the Turban study, which
she claims demonstrates a “statistically significant decrease in sui-
cidal ideation.” Rosenbaum Dis. Op. at 41 n.22; see Jack L. Turban
et al., Pubertal Suppression for Transgender Youth and Risk of Suicidal
Ideation, 145 Pediatrics 1, 5–6 (2020). This study pulled data from
the 2015 US Transgender Survey, but out of the 3,494 participants
in the study, only 89 reported that they received puberty blockers.
Id. at 3–4. The authors reported that “[t]reatment with pubertal
suppression among those who wanted it was associated with lower
odds of lifetime suicidal ideation when compared with those who
wanted pubertal suppression but did not receive it.” Id. at 5. But
near the end of their paper, the authors admit that the design of USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 61 of 173
their study “does not allow for determination of causation.” Id. at
7. Further, as detailed in a review of the study, there are good rea-
sons to question the data set used by the authors, for it “included
older respondents who, in fact, had no opportunity to obtain these
drugs and so cannot be used for comparison.” Michael Biggs, Pu-
berty Blockers and Suicidality in Adolescents Suffering from Gender Dys-
phoria, 49 Archives of Sexual Behav. 2227, 2228 (2020). The Turban
study also fails to control for preexisting psychological problems.
In order to provide true insight, the study would need to measure
“the respondent’s psychological problems before [the puberty
blockers were] prescribed or withheld.” Id. (emphasis omitted).
Without this information, “a negative association found many
years after treatment is compatible with three scenarios: puberty
blockers reduced suicidal ideation; puberty blockers had no effect
on suicidal ideation; [or] puberty blockers increased suicidal idea-
tion, albeit not enough to counteract the initial negative effect of
psychological problems on eligibility.” Id. And finally, England’s
National Institute for Health and Care Excellence excluded the
Turban study from its evidence report because the data for puberty
blockers was “not reported separately from other interventions.”
Therefore, the Turban study, as with the others already discussed,
provides no probative causal connection between suicidality and
the use of puberty blockers.
Finally, Judge Rosenbaum turns to the Allen study, which
she claims documents a “75% decrease in suicidality.” Rosenbaum
Dissenting Op at 41 n.22; see Luke Allen et al., Well-being and Sui-
cidality Among Transgender Youth after Gender-affirming Hormones, 7 USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 62 of 173
Clinical Practice in Pediatric Psychology 302, 306 (2019). But like
the other studies, the Allen study’s authors could not conclude that
the hormone treatments were “causally responsible for the benefi-
cial outcomes observed,” because, in this case, the study lacked a
control group. Id. at 309. The authors also did not screen for
whether the patient was actively receiving psychotherapy, which
further weakens any inference of causation. See id. at 308.
In all, none of these studies provides real support for Judge
Rosenbaum’s discussion of the supposed benefits of cross-sex hor-
mones and puberty blockers. Nor do they undermine Cass’s four-
year independent review of the available evidence, which con-
cluded that “there is no evidence that gender-affirmative treatments
reduce [suicidality.]” See The Cass Review, supra n.2, at 195 (em-
phasis added). All of this underscores that this is an issue for the
political branches, not the judicial branch.
Ultimately, the Alabama legislature is entitled to review all
the available evidence and decide whether to circumscribe cross-
sex hormone and puberty blocking medications for the purposes
set forth in the Act. On rational-basis review, our role is not “to
judge the wisdom, fairness, or logic of [that] legislative choice[].”
Beach Commc’ns, 508 U.S. at 313. Our role is to simply ask whether
there is a “conceivable basis” for Alabama’s law. Id. at 315. Under
this lenient standard, the existing evidence overwhelmingly sug-
gests that Alabama has a rational basis for the Act. Our panel opin-
ion correctly determined that the Act likely satisfies rational-basis
scrutiny. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 63 of 173
III. CONCLUSION
Alabama enacted an entirely rational law. The Fourteenth
Amendment, as informed by text, history, tradition, and our prec-
edents, does not prevent Alabama from doing so. Instead of acting
as a “super-legislature,” Day-Brite Lighting Inc. v. Missouri, 342 U.S.
421, 423 (1952), our Court has correctly allowed Alabama to “safe-
guard[] the physical and psychological well-being” of its minors,
Globe Newspaper Co., 457 U.S. at 607. I therefore concur in the de-
cision to deny rehearing en banc. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 64 of 173
Appendix A: KathyGrace Duncan 20
1. I am over the age of 18 years and am not a party to this ac-
tion. I have actual knowledge of the following facts and if called
upon to testify to them could and would do so competently. I am
submitting this Declaration in support of Defendants’ opposition
to Plaintiffs’ Motion for a Temporary Restraining Order and Pre-
liminary Injunction.
2. Alabama’s Vulnerable Child Compassion and Protection
Act (“VCCAP”) is a necessary, potentially life-saving law that will
protect vulnerable children and their parents from the heartbreak-
ing regret, irreversible physical changes, sexual dysfunction and
emotional pain that I have experienced after undertaking medical
and surgical interventions aimed at “transitioning” me from a fe-
male to a “male.”
3. From a very young age, I was what is called today “gender
non-conforming.” I preferred male clothing, I thought I was a
“boy” and I wanted to live as one.
4. I grew up in a dysfunctional family in which my mother was
often the victim of my father’s emotional and verbal abuse. As a
result I internalized the message that “my dad would love me if I
were a boy.”
USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 65 of 173
5. Sexual abuse by a family member between the ages of 10
and 12 further convinced me that being a girl meant being unsafe
and unlovable.
6. In sixth grade, I learned about female to male transsexuals.
I believed that my distress was caused by not having the “right”
body and the only way to live a normal life was to medically tran-
sition and become a heterosexual male.
7. At age 19, I began living as a man named Keith and went to
a therapist who formally diagnosed me with gender dysphoria. I
began testosterone and a year later had a mastectomy. At the time,
I believed it was necessary so that what I saw in the mirror matched
what I felt on the inside.
8. I never viewed my condition as touching on mental health
issues, and neither did the therapist who diagnosed me. The ques-
tion of whether my self-perception and desire to transition was re-
lated to [my] mental health issues was never explored.
9. After 11 years passing as a man and living what I thought
was a relatively “happy” and stable life (which included having a
number of girlfriends), I realized that I was living a lie built upon
years of repressed pain and abuse. Hormones and surgery had not
helped me resolve underlying issues of rejection, abuse, and sexual
assault. I came to understand that my desire to live as a man was a
symptom of deeper unmet needs.
10. With the help of life coaches and a supportive community, I
returned to my female identity and began addressing the underly-
ing issues that had been hidden in my attempt to live as a man. I USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 66 of 173
experienced depression that I had repressed for years and grieved
over the irreversible changes to my body.
11. If someone had walked with me through my feelings in-
stead of affirming my desire to transition, then I would have been
able to address my issues more effectively and not spend so many
years making and recovering from a grave mistake.
12. Alabama’s VCCAP Act is necessary and essential because it
will give children and adolescents a chance to walk through their
feelings and address their underlying issues effectively without be-
ing pulled onto the affirmation conveyor belt. Hormones and sur-
gery are irreversible decisions that children and adolescents are in-
capable of making. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 67 of 173
Appendix B: Carol Frietas
1. I am over the age of 18 years and am not a party to this ac-
tion. I have actual knowledge of the following facts and if called
upon to testify to them could and would do so competently. I am
submitting this Declaration in support of Defendants’ opposition
to Plaintiffs’ Motion for a Temporary Restraining Order and Pre-
liminary Injunction.
2. Alabama’s Vulnerable Child Compassion and Protection
Act (“VCCAP”) is a necessary, potentially life-saving law that will
protect vulnerable children and their parents from the heartbreak-
ing regret, irreversible physical changes, and emotional pain that I
have experienced after undertaking medical and surgical interven-
tions aimed at “transitioning” me from a female to a “male.”
3. As a youth, I was what today is called “gender non-conform-
ing,” but I lived in a household where gender expression was
strictly aligned with cultural stereotypes. I was not allowed to wear
boys’ clothes or play boys’ sports.
4. At puberty I realized I was same-sex attracted with crushes
on girls. I became depressed and anxiety-ridden as I feared what
“being gay” might mean to how I lived my life and my family rela-
tionships. I dropped out of school.
5. At age 20, I began to meet other LGBT youth and my life
stabilized. However, I also learned that many masculine females,
like me, felt that they were “born in the wrong body” and were
transitioning, so I adopted that persona. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 68 of 173
6. I went to a gender therapist who diagnosed me with gender
dysphoria and told me that transition was the only treatment that
would alleviate my discomfort and anxiety.
7. However, at that time there were gatekeeping standards for
gender transition, which required that I first live as man for six
months, including using a male name, showing a male appearance,
and using male spaces. I had very large breasts and could not pass
for a male in male spaces, so I did not pursue testosterone at that
time. I viewed myself as a male trapped in the “wrong body,” but
my mental health otherwise was stable.
8. In 2014, I revisited the idea of transitioning, believing it
would make me feel better because I was undergoing trauma in
various forms. My grandmother who had practically raised me
died. I had suffered severe abuse and neglect in childhood, and in
retrospect believe I was experiencing symptoms of PTSD from
that. I had just become a new mother a couple of months before
my brother-in-law committed suicide.
9. I spiraled downward and wanted out. I couldn’t commit su-
icide because I was a mother, so I returned to the idea of transition,
believing it would help me feel better. By that time the require-
ments for testosterone had lessened. I went to Planned
Parenthood for testosterone and was given it right away, with no
information. I was not given any information on uterine atrophy,
vaginal atrophy, or other effects of testosterone and the staff did
not talk about any of my emotional or mental health issues. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 69 of 173
10. Four months after starting testosterone, I went to a plastic
surgeon for a mastectomy. I needed a letter from a therapist and
received one from the therapist who had affirmed me and origi-
nally recommended transition. As was true with testosterone, I
was not given any information about the procedure. Instead I had
a consultation with the surgeon, who said “this is what we are go-
ing to do,” drew on my chest, took pictures and asked me what I
wanted out of the surgery. He said “we’ll create a masculine look-
ing chest, you’ll look great.”
11. During the first four months on testosterone menstruation
stopped, my sex drive went way up, my voice deepened, and facial
and body hair came in. As I continued on testosterone, my person-
ality changed drastically and my verbal abilities declined. Testos-
terone lowered and muted my emotions and empathy, but also
gave me a lot of energy and a sense of a high. My depression and
anxiety worsened to the point that I was having such severe panic
attacks that I could not leave home. I told my doctors that I
thought the testosterone was making the anxiety worse, but they
said no.
12. I went to a psychiatrist . . . specifically to deal with the de-
pression and I was provided with an anti-depressant that really
worked. I felt mentally stable and able to address the trauma that
led me to transition.
13. Within a month of starting the anti-depressant, I realized
that I had not needed to transition. It was the biggest mistake I had
ever made. I did not detransition for a year because I couldn’t USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 70 of 173
believe that it was so easy, i.e., that anti-depressants alleviated my
depression and enabled me to think clearly and reason better. This
allowed me [to] address my internalized homophobia and child-
hood abuse through therapeutic means.
14. Meanwhile, my health began going downhill. Before going
on testosterone, I had no health problems. After being on it for
four years, I was pre-diabetic, had high cholesterol, and had a high
red blood cell count to the point that doctors were recommending
that I donate blood to reduce the volume.
15. I stopped taking testosterone and four months later my
blood work was back down to normal. I thought to myself “How
do they [doctors] not know about this?” Going off testosterone al-
lowed me to finally sleep. I felt like I never slept all the time that I
was taking testosterone. Going off testosterone also helped with
empathy and other emotions. My personal relationships, including
my relationship with my wife, were better.
16. I believe that healthcare providers did not ask me about
mental health issues because they believed that those issues were
caused by gender dysphoria and that transitioning would fix the
problem. In fact, the opposite was true.
17. I would have been spared physical, psychological, and emo-
tional losses if I had received a proper diagnosis and treatment for
PTSD and depression before undergoing years of medical and sur-
gical interventions. Alabama’s VCCAP Act is necessary and essen-
tial because it will give children and adolescents the chance to work
through and address their underlying issues such as depression or USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 71 of 173
PTSD effectively without being pulled onto the affirmation con-
veyor belt. Hormones and surgery are irreversible decisions that
children and adolescents are incapable of making. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 72 of 173
Appendix C: Corinna Cohn
My name is Corinna Cohn. I am over the age of 19, I am
qualified to give this declaration, and I have personal knowledge of
the matters set forth herein.
In or about 2nd grade, I saw a psychologist for problems re-
lated to being bullied and emotional regulation. After less than a
year, my parents chose to discontinue therapy. I continued to be
bullied and had problems forming friendships. Other boys ex-
cluded me from social activities. Later in elementary school I be-
gan to pray to be made into a girl, which I thought would allow me
to fit in better. This became a fixation for me.
In high school, I confessed to my parents that I wanted to
become a woman. They brought me to see the same psychologist
I’d had as a child, and she diagnosed me with having gender iden-
tity disorder. Upon receiving my diagnosis, my parents again chose
to discontinue my therapy. I continued to have problems socializ-
ing at school and experienced depression and anxiety on a daily ba-
sis.
At the age of 17, I gained access to the Internet. This was
prior to the popularization of the World Wide Web, but I was able
to use message boards . . . in order to find other members of what
today would be called the “trans community.” Adult transgender
women befriended me, supplied me with validation and support,
and provided information on how I could transition to become a
transgender woman. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 73 of 173
At the age of 18, I resumed my sessions with my psycholo-
gist with the goal of receiving a prescription for cross-sex hormones
and eventual sex reassignment surgery. Due to my prior relation-
ship with my psychologist, I was able to gain a letter of recommen-
dation to an endocrinologist and was prescribed estrogen. The en-
docrinologist was referred to me by transgender friends on the In-
ternet. I began living as a woman and had my legal identification
updated to reflect my chosen name.
I had sex reassignment surgery in Neenah, Wisconsin in
1994. I was only 19 years old. Securing the appointment required
letters from two therapists along with a letter from my endocrinol-
ogist. My surgeon told me I was the second-youngest patient he
had operated on. The surgery involved the removal of my testicles,
penectomy, and vaginoplasty. It was successful and without com-
plication.
After healing from my sex change surgery I thought that my
transition journey was over. I discontinued therapy, and I began
focusing on my career. I found it was easier to socialize and make
new friends with my new confidence and feelings of being my au-
thentic self. As I reached my late twenties, my friends began pair-
ing off and starting families. I discovered that it was very difficult
to find a partner who wanted to do the same with me.
Although I was in denial for several years, I eventually real-
ized that my depression and anxiety related to my gender identity
had not resolved. It was not unusual for me to spend entire week-
ends in my room crying and entertaining thoughts of suicide. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 74 of 173
In my mid-thirties I became interested in radical feminism.
I am not a feminist, nor have I ever been, but I wanted to reconcile
how feminist concepts applied to people like myself: males who try
to turn ourselves into women. One of the concepts I found pivotal
was the feminist criticism of biological essentialism, which chal-
lenges the idea that men and women are destined to fulfill rigid sex
roles. Once I understood this criticism I realized that my more ste-
reotypically feminine attitudes and behaviors did not therefore
make me a woman, but rather a feminine man. In retrospect, my
self-perception of being a woman also required that I overlook or
discount traits that are more stereotypically masculine. Although
it took time for this realization to fully sink in, a side effect was that
I stopped having bouts of depression and anxiety related to my gen-
der identity. I have not had any depressive episodes related to gen-
der identity in ten years. As a teenager I was unprepared to under-
stand the consequences of my decision to medicalize my transition
despite the rigorous controls that were in place to ensure that pa-
tients would not be harmed from gender affirming care.
...
I wish I could persuade other boys who wish to become
women that the changes they seek are only superficial. Hormones
and surgery are unable to reveal an authentic self, and anyone who
promises otherwise is, in my opinion, deliberately misleading
young people to follow a one-way track to a lifetime of medicaliza-
tion. Although some people may choose to transition, and may
even enjoy a higher quality of life, there is no reason why this USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 75 of 173
irreversible decision needs to be made in adolescence. Adults who
advocate for adolescent transition do so without understanding
what tradeoffs early transition entails, which includes the loss of
fertility, the likelihood of sexual dysfunction, and the likelihood of
surgical complication inflicted at an early age from elective proce-
dures. Unfortunately, I do understand some of these tradeoffs USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 76 of 173
WILSON, Circuit Judge, dissenting from the denial of rehearing en
banc, joined by JORDAN, Circuit Judge:
This case presents numerous questions “of exceptional im-
portance” worthy of en banc review. Fed. R. App. P. 35(a)(2). See-
ing that this case implicates the contours of substantive due pro-
cess, fundamental rights, and equal protection, it is difficult to en-
vision issues of greater importance.
I. Substantive Due Process
The divergent descriptions of the fundamental right at issue
and disagreement over whether substantive due process protects
that right demonstrate a need for rehearing en banc.
The district court relied on the Supreme Court’s decision in
Troxel v. Granville, among others, which recognized the fundamen-
tal right of parents to “make decisions concerning the care, cus-
tody, and control of their children.” 530 U.S. 57, 66 (2000) (plurality
opinion); see also Pierce v. Soc’y of the Sisters of the Holy Names of Jesus
and Mary, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska,262 U.S. 390, 399
(1923). The district court then determined that this recog-
nized fundamental right includes the “right to treat [one’s] children
with transitioning medications subject to medically accepted stand-
ards.” Eknes-Tucker v. Marshall, 603 F. Supp. 3d 1131, 1144 (N.D. Ala.
2022). Judge Rosenbaum takes a parallel approach in her dissent
from denial of rehearing. She identifies the fundamental right at
issue as one that sits within Parham v. J.R.’s more general fundamen-
tal right. See 442 U.S. 584, 602 (1979). However, her articulation is
more specific; she describes the fundamental right at issue as the USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 77 of 173
“right to direct that [one’s] child receive well-established, evidence-
based, non-experimental medical treatment, subject to medically
accepted standards and a physician’s independent examination and
medical judgment.” Rosenbaum Dissent at 1. Meanwhile, Judge
Jordan broadly describes the fundamental right as “the right of par-
ents to obtain medically-approved treatment for their children.”
Jordan Dissent at 22. In contrast, the panel describes the funda-
mental right at issue as only “the right to treat [one’s] children with
transitioning medications subject to medically accepted standards,”
which it views as separate and distinct from the fundamental right
to “make decisions concerning the ‘upbringing’ and ‘care, custody,
and control’ of one’s children.” Eknes-Tucker v. Governor of Alabama,
80 F.4th 1205, 1224 (11th Cir. 2023). All four opinions articulate the
fundamental right at issue with varying degrees of specificity. Re-
hearing en banc would have provided us with an opportunity to
clarify the fundamental right at issue and the protections guaran-
teed by the Due Process Clause. 1
1 Incidentally, I note several inconsistencies in Judge Lagoa’s Statement. For
one, the Statement discusses the facts and introduces new factual material.
See Judge Lagoa’s Statement at 4–6, 29–31, 44, 48–49. We must respect the
district court as the finder of fact. See Gonzalez v. Governor of Georgia, 978 F.3d
1266, 1270 (11th Cir. 2020). Neither the panel nor Judge Lagoa can reevaluate
factual determinations or consider materials not before us, as the Statement
does. See also Rosenbaum Dissent at 8 n.7. Further, I struggle with Judge La-
goa’s discussion of medical findings, given her pronouncement that “[n]either
an unelected district judge nor unelected circuit judge should resolve” policy
questions informed by scientific, philosophical, and moral considerations. If
this case presents policy questions that courts are ill-suited to resolve, a USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 78 of 173
II. Equal Protection
Like Judge Rosenbaum, I am also concerned with the panel’s
equal protection analysis—particularly its quick and improper dis-
missal of Bostock and Brumby. The panel concludes that because
Bostock and Brumby involved gender stereotyping in the context of
employment discrimination, their holdings are irrelevant here. I
am not so sure.
In Brumby, we explained that “[a] person is defined as
transgender precisely because of the perception that his or her be-
havior transgresses gender stereotypes,” and accordingly held that
“discrimination against a transgender individual because of her
gender-noncomformity is sex discrimination.” Glenn v. Brumby, 663
F.3d 1312, 1316–17 (11th Cir. 2011). Our analysis drew from “foun-
dational cases” in which the Supreme Court “concluded that dis-
criminatory state action could not stand on the basis of gender ste-
reotypes.” Id. at 1319. But these cases were not limited to the em-
ployment context and included examples of gender stereotyping in
the provision of social security benefits, military benefits, educa-
tion, and child support payments. Id. at 1319–20. The same is true
of Bostock, which held that “discrimination based on . . .
transgender status necessarily entails discrimination based on sex.”
Bostock v. Clayton Cnty., 590 U.S. 644, 669 (2020). In reaching this
holding, the Supreme Court also relied on precedent describing in-
stances of discrimination more broadly. See id. at 677–78. The
statement for denial of rehearing en banc is not the place for credibility deter-
minations regarding evidence. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 79 of 173
panel looks only to Bostock and Brumby’s employment outcome, ra-
ther than drawing from the underlying reasoning in each case to
determine when gender and sex stereotyping rises to the level of a
constitutional violation. 2 See Fowler v. Stitt, 104 F.4th 770, 790 (10th
Cir. 2024) (“Although that was the only question the Supreme
Court decided, the Court did not indicate that its logic concerning
the intertwined nature of transgender status and sex was confined
to Title VII.”).
Judge Brasher’s concurrence, in which he states that the Act
does not contain a sex classification, is also indicative of the need
for en banc review. Eknes-Tucker, 80 F.4th at 1233 (Brasher, J., con-
curring). The Act is aimed at addressing the treatment of minors
who experience “a discordance between the individual’s sex and
sense of identity.” Ala. Code § 26-26-2(16). The word “sex” is not
only, as Judge Brasher concedes, riddled throughout the Act, it is
used to separate minors who experience a “discordance” between
their birth-assigned sex and gender identity from those who do not
2 See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (explaining that
gender stereotyping can play a role in gender-based discrimination); City of
L.A., Dep’t of Water and Power v. Manhart, 435 U.S. 702, 709–10 (1978) (stating
that employment practices which classify people based on sex often “preserve
traditional assumptions about groups rather than thoughtful scrutiny of indi-
viduals”); Stanton v. Stanton, 421 U.S. 7, 14–15 (1975) (finding that “‘old no-
tions’” of the traditional roles of men and women did not support Utah’s sex-
based classification of child support payments). USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 80 of 173
experience such a “discordance.” This seems like a sex-based clas-
sification. 3
The Act as it stands now shapes the way parents of
transgender children may care for their children, while parents of
cisgender children remain unaffected. Should a parent of a child be
prevented from seeking medical care because of the sex of their
child? See Stanton, 421 U.S. at 14–15 (“A child, male or female, is
still a child.”). Reading the Act as though it does not distinguish
and classify minors will only lead to future confusion and contra-
dictory results in the interpretation of similar state statutes across
the circuit.
* * *
For these reasons, it is difficult to envision issues of greater
importance than those presented here. We should have reheard
this case en banc. Accordingly, I respectfully dissent from our re-
fusal to do so.
3 See Kadel v. Folwell, 100 F.4th 122, 146 (4th Cir. 2024) (en banc) (“[G]ender
dysphoria is so intimately related to transgender status as to be virtually indis-
tinguishable from it. The excluded treatments aim at addressing incongruity
between sex assigned at birth and gender identity, the very heart of
transgender status.”). USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 81 of 173
JORDAN, Circuit Judge, joined by ROSENBAUM and JILL PRYOR, Cir-
cuit Judges, dissenting from the denial of rehearing en banc.
Substantive due process is hard. Acknowledging the com-
plexity of the doctrine, I write to discuss what I perceive to be some
analytical flaws in the panel’s opinion.
I
In this case, the panel characterized the liberty interest in
part by asking whether there is a history of recorded uses of tran-
sitioning medications for transgender individuals (e.g., puberty
blockers and cross-sex hormone treatments) as of 1868, when the
Fourteenth Amendment was ratified. Finding no such history, the
panel concluded that there is no fundamental right for parents to
treat their children with such medications. See Eknes-Tucker v. Gov-
ernor of Alabama, 80 F.4th 1205, 1220–21, 1224 (11th Cir. 2023).
The panel’s decision necessarily means that the fundamental
right of parents to obtain medical treatment for their children ex-
tends only to procedures and medications that existed in 1868, and
not to modern advances like the polio vaccine (developed in the
1950s), cardiac surgery (first performed in 1893), organ transplants
(first successfully completed in 1954), and treatments for cancer
like radiation (first used in 1899) and chemotherapy (which started
in the 1940s). See Judge Rosenbaum Dissent at Part II.A.2. There
is admittedly some support in our cases for the panel’s approach,
see Morrissey v. United States, 871 F.3d 1260, 1269–70 (11th Cir. 2017)
(holding that a man does not have a substantive due process right
to procreate through in-vitro fertilization because that technology USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 82 of 173
was only successfully developed in the 1970s), but that analysis is
too simple and ignores many Supreme Court cases that define fun-
damental rights at a much more general level without requiring es-
tablished and precise historical pedigrees. Cf. Obergefell v. Hodges,
576 U.S. 644, 664 (2015) (“The generations that wrote and ratified
the Bill of Rights and the Fourteenth Amendment did not presume
to know the extent of freedom in all of its dimensions, and so they
entrusted to future generations a charter protecting the right of all
persons to enjoy liberty as we learn its meaning.”); Home Bldg. &
Loan Ass’n v. Blaisdell, 290 U.S. 398, 442–43 (1934) (“It is no answer
to say that this public need was not apprehended a century ago, or
to insist that what the provision of the Constitution meant to the
vision of that day it must mean to the vision of our time. If by the
statement that what the Constitution meant at the time of its adop-
tion it means today, it is intended to say that the great clauses of
the Constitution must be confined to the interpretation of the
framers, with the conditions and outlook of their time, would have
placed upon them, the statement carries its own refutation. It was
to guard against such a narrow conception that Chief Justice Mar-
shall uttered the memorable warning: ‘We must never forget, that
it is a constitution we are expounding[.]’”) (internal citations and
quotations omitted).
Some have said that in constitutional law the “[l]evel of gen-
erality is everything[.]” L.W. v. Skrmetti, 83 F.4th 460, 475 (6th Cir.
2023), cert. granted, --- S.Ct. ----, 2024 WL 3089532 (2024). Even if it
is not everything, the level of generality is very important and often
determinative. In my view, the panel asked the wrong question by USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 83 of 173
defining the asserted right in too granular a way, and as a result
reached the wrong answer. Cf. Ala. Legis. Black Caucus v. Alabama,
575 U.S. 254, 279 (2015) (“Asking the wrong question may well have
led to the wrong answer.”). In the pages that follow, I try to explain
why.
II
When it comes to challenges to legislation, the substantive
component of the Due Process Clause “protects those fundamen-
tal rights and liberties which are, objectively, 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[.]” Washington v. Glucksberg, 521 U.S. 702, 720–
21 (1997) (citations and internal quotation marks omitted). But
substantive due process also sometimes protects against abusive ex-
ecutive action. In that context the question is whether the conduct
at issue constitutes an “abuse of power . . . which shocks the con-
science.” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).
The panel here in part relied on the substantive due process
aspect of our decision in Bendiburg v. Dempsey, 909 F.2d 463, 468
(11th Cir. 1990), calling it the “most relevant” Eleventh Circuit
precedent dealing with “parents’ liberty interest to control the up-
bringing of their children.” Eknes-Tucker, 80 F.4th at 1223. I think
the panel incorrectly characterized Bendiburg and mistakenly
viewed it as the “most relevant” of our cases.
In Bendiburg, a father asserted a substantive due process
claim based on the involuntary insertion of a certain catheter on USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 84 of 173
his son by private parties allegedly acting in concert with state offi-
cials. The district court in Bendiburg characterized the substantive
due process claim as one alleging abusive executive action, and re-
jected it: “The most widely accepted view is that substantive due
process is violated by government conduct that ‘shocks the con-
science’ or when the government engages in action ‘which offends
those canons of decency and fairness which express the notions of
justice of English speaking peoples.’ The question before the court
is thus whether the evidence of record suggests state conduct that
was so shocking or egregious as to give rise to a claim for damages
under the concept of substantive due process. The court finds that
it does not.” Bendiburg v. Dempsey, 707 F. Supp. 1318, 1324 (N.D.
Ga. 1989) (citations omitted).
On appeal, the Bendiburg panel affirmed the district court’s
decision and rejected the father’s substantive due process claim.
But it too viewed the claim as based on allegedly abusive executive
action, and not as a challenge to enacted legislation. So it too ap-
plied the “shocks the conscience” standard in rejecting the father’s
claim, agreeing with the district court that the “circumvention of
parental authority for a five day period [to install the catheter] did
not rise to a level sufficiently egregious or shocking to sustain a
substantive due process claim with respect to severance of the par-
ent-child relationship.” 909 F.2d at 468. 1
1 That the district court and the panel in Bendiburg analyzed the case under the
“shocks the conscience standard” is not surprising, as the full Eleventh Circuit
had held just five years earlier that in the realm of abusive police (i.e., USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 85 of 173
The panel here should not have viewed Bendiburg as the
“most relevant” of our cases. First, the “shocks the conscience”
standard governs substantive due process claims based on abusive
executive action, and not challenges to legislation like we have in
this case. Second, we have explained that the “shocks the con-
science” standard can apply even when there is no fundamental
right at stake: “Where a fundamental liberty interest does not exist,
substantive due process nonetheless protects against the arbitrary
and oppressive exercise of government power. Executive action is
arbitrary in a constitutional sense when it ‘shocks the conscience.’”
Waldman v. Conway, 871 F.3d 1283, 1292 (11th Cir. 2017) (citing
Lewis, 523 U.S. at 845–46). Third, Bendiburg simply did not address
whether a parent has a protected liberty interest to determine the
medical care for his child, rendering it largely irrelevant for the pur-
poses of the fundamental right analysis.
III
In cases involving substantive due process challenges to leg-
islation, the Supreme Court has required a “careful description of
the asserted fundamental liberty interest.” Glucksberg, 521 U.S. at
721 (citation and internal quotation marks omitted). But “[t]his
does not mean that [courts] must define the asserted right at the
most specific level, thereby sapping it of a universal valence and
moral force it might otherwise have. It means, simply, that we must
executive) conduct the relevant inquiry is whether the conduct “shocked the
conscience.” See Gilmere v. City of Atlanta, 774 F.2d 1495, 1500 (11th Cir. 1985)
(en banc). USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 86 of 173
pay close attention to the precise liberty interest the litigants have
asked us to vindicate.” McDonald v. City of Chicago, 561 U.S. 742,
882 (2010) (Stevens, J., dissenting) (footnote omitted). If we “nar-
row[ ] the asserted right [to the most specific level available],” we
“‘load[ ] the dice’ against its recognition.” Id. at 882 n.25. See also
Geoffrey R. Stone, et al., Constitutional Law 919 (8th ed. 2018) (“If
the tradition is defined very narrowly, the legislation at issue will
almost always simply illustrate the tradition, thereby depriving the
appeal to tradition of any power to check legislative action. But if
the tradition is defined very broadly, judges will be able to appeal
to it to invalidate whatever legislation they choose to characterize
as inconsistent with tradition.”).
In Michael H. v. Gerald D., 491 U.S. 110, 128 n.6 (1989), Justice
Scalia, joined only by Chief Justice Rehnquist, advocated for an ap-
proach that focused on the “most specific level at which a relevant
tradition protecting, or denying protection to, the asserted right
can be identified.” The other Justices in Michael H., whether con-
curring in or dissenting from the judgment, either refused to join
that aspect of Justice Scalia’s plurality opinion or rejected it out-
right. See id. at 132 (O’Connor, J., joined by Kennedy, J., concurring
in part); id. at 133(Stevens, J., concurring in the judgment);id.
at
138–40 (Brennan, J., joined by Marshall & Blackmun, JJ., dissent-
ing). Justice Scalia’s “most specific level” formulation is therefore
not binding. And, as I will discuss, is not an accurate reflection of
the Supreme Court’s actual framing of fundamental rights. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 87 of 173
The Supreme Court has described the rights of parents vis-
à-vis their children generally. It has, for example, referred to those
rights as “the fundamental right of parents to make decisions con-
cerning the care, custody, and control of their children.” Troxel v.
Granville, 530 U.S. 57, 66 (2000) (plurality opinion of four Justices)
(collecting cases of “extensive precedent” to highlight that “the
fundamental right of parents to make decisions concerning the
care, custody, and control of their children” is beyond doubt); id. at
77 (Souter, J., concurring in the judgment) (“[T]he right of parents
to ‘bring up children,’ and ‘to control the education of their own,’
is protected by the Constitution.”) (citations omitted). See also
Glucksberg, 521 U.S. at 720 (referring to the right “to direct the edu-
cation and upbringing of one’s children”). This general framing is
consistent with the Supreme Court’s long-standing approach to de-
fining the liberty interest at issue in other substantive due process
cases. What’s more, this approach holds even where the Supreme
Court has found that the relevant liberty interest was not, in fact,
fundamental.
Accordingly, I cite with confidence to the dissent of Justice
Stevens in McDonald, 561 U.S. at 882, because what he said is de-
monstrably correct. Over the last 100 years, the Supreme Court
has—in more substantive due process cases than not—described
the liberty interest in general terms without limiting it to the very
specific factual circumstances presented. If the interests in those
cases had been defined at a very narrow and specific level—the ap-
proach the panel in this case followed—“many a decision would
have reached a different result.” Michael H., 491 U.S. at 139–40 USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 88 of 173
(Brennan, J., dissenting) (citing a number of illustrative cases). See
also id. at 132 (O’Connor, J., concurring in part) (“On occasion the
Court has characterized relevant traditions protecting asserted
rights at levels of generality that might not be ‘the most specific
level available.’”).
A
Let’s now review some of the relevant substantive due pro-
cess cases, starting with Meyer v. Nebraska, 262 U.S. 390 (1923), in
which the Supreme Court vacated the conviction of an elementary
school teacher at a parochial school in Nebraska for teaching the
subject of reading in German to a 10-year-old student. The teacher
had been convicted of violating a Nebraska law which (a) prohib-
ited the teaching of any subjects in languages other than English,
and (b) allowed foreign languages to be taught as languages only to
schoolchildren who had graduated from eighth grade. See id. at
396–97.
The Supreme Court held that the law—which the Nebraska
Supreme Court had interpreted to apply only to so-called modern
languages such as Spanish, French, German, and Italian—violated
a fundamental liberty interest protected by the Due Process Clause
of the Fourteenth Amendment. The Court concluded that the
teacher’s “right . . . to teach [German] and the right of parents to en-
gage him so to instruct their children . . . are within the liberty of the
[Fourteenth] [A]mendment.” Id. at 400 (emphasis added). It came
to this conclusion without examining the historical record to see if USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 89 of 173
there was an enshrined practice and tradition in the United States
in 1868 of teaching German to elementary school students.
Having identified a fundamental right, the Court in Meyer
then turned to Nebraska’s justification for the law. The Court
thought it insufficient that “the purpose of the legislation was to
promote civic development by inhibiting training and education of
the immature in foreign tongues and ideals before they could learn
English and acquire American ideals.” Id. at 401. Though “the
state may do much, go very far, indeed, in order to improve the
quality of its citizens, physically, mentally and morally, . . . the indi-
vidual has certain fundamental rights which must be respected.
The protection of the Constitution extends to all, to those who
speak other languages as well as to those born with English on the
tongue. Perhaps it would be highly advantageous if all had ready
understanding of our ordinary speech, but this cannot be coerced
by methods which conflict with the Constitution—a desirable end
cannot be promoted by prohibited means.” Id. The law was invalid
because there was not a sufficient justification for its restrictions:
“No emergency has arisen which renders knowledge by a child of
some language other than English so clearly harmful as to justify
its inhibition with the consequent infringement of rights long
freely enjoyed. We are constrained to conclude that the statute as
applied is arbitrary and without reasonable relation to any end
within the competency of the state.” Id. at 403.
Next is Pierce v. Society of Sisters, 268 U.S. 510 (1925). In that
case the Supreme Court addressed the constitutionality of USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 90 of 173
Oregon’s compulsory education act, which required the attendance
in public schools of all children aged 8–16 (save for some limited
exceptions). The Society of Sisters, a Catholic corporation which
in part operated religious elementary and high schools, and Hill
Military Academy, which ran a private military academy, sued to
enjoin the enforcement of the act as violative of the Due Process
Clause of the Fourteenth Amendment. See id. at 530–33.
Applying Meyer, the Court held that the act violated a fun-
damental liberty interest of the Society of Sisters, of the Hill Mili-
tary Academy, and of parents:
Appellees are engaged in a kind of undertaking not
inherently harmful, but long regarded as useful and
meritorious. Certainly there is nothing in the present
records to indicate that they have failed to discharge
their obligations to patrons, students, or the state.
And there are no peculiar circumstances or present
emergencies which demand extraordinary measures
relative to primary education. . . . [W]e think it en-
tirely plain that the Act of 1922 unreasonably inter-
feres with the liberty of parents and guardians to direct
the upbringing and education of children under their con-
trol. As often heretofore pointed out, rights guaran-
teed by the Constitution may not be abridged by leg-
islation which has no reasonable relation to some pur-
pose within the competency of the state. The funda-
mental theory of liberty upon which all governments
in this Union repose excludes any general power of
the state to standardize its children by forcing them to
accept instruction from public teachers only. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 91 of 173
Id. at 534–35 (emphasis added).
As in Meyer, the Court in Pierce did not perform a laser-fo-
cused historical analysis to see if Catholic or private military
schools were ingrained in the fabric of the Republic as of 1868. In-
deed, had the Court engaged in such an analysis, it would have dis-
covered that there was no accepted or ingrained practice of Cath-
olic schools at the time the Fourteenth Amendment was ratified.
To the contrary, although American Catholics in the 19th Century
had “long maintained their own schools,” they had to contend with
anti-Catholic sentiment and discrimination and had to fight to pro-
tect their ability to maintain independent and sectarian religious
schools. See Matthew Steilen, Parental Rights and the State Regulation
of Religious Schools, 2009 B.Y.U. Educ. & L.J. 269, 318–30 (2009);
Brandi Richardson, Eradicating Blaine’s Legacy of Hate: Removing the
Barrier to State Funding of Religious Education, 52 Cath. U. L. Rev.
1041, 1050–54 (2003); Joseph P. Viteritti, Blaine’s Wake: School Choice,
the First Amendment, and State Constitutional Law, 21 Harv. J.L. &
Pub. Pol’y 657, 669 (1998). The Blaine Amendments to the United
States Constitution (which failed) and to many state constitutions
(which generally passed) both before and after the ratification of
the Fourteenth Amendment were generally meant to prevent gov-
ernment financial aid to Catholic schools. See Toby Heytens, School
Choice and State Constitutions, 86 Va. L. Rev. 117, 137–38 (2000)
(“The Blaine Amendments arose out of this historical context, and
the conclusion that they were driven by the Protestant/Catholic
divide is unmistakable, despite the fact that none of the amend-
ments refer specifically to Roman Catholics or Catholic schools. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 92 of 173
This appears to be the scholarly consensus.”). Had the Court in
Pierce defined the right as that of a Catholic organization to run its
own religious schools in place of otherwise compulsory public ed-
ucation, or to the right of parents to send their children to a Cath-
olic school, it would not and could not have found a fundamental
liberty interest, much less a substantive due process violation.
B
Lest anyone think that Meyer and Price—and their non-spe-
cific characterizations of the liberty interests at issue—are relics of
a bygone era, there are modern substantive due process cases
which engage in the same type of analysis and describe the right at
issue in more general terms. I discuss four such cases as examples.
In Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court
struck down, on equal protection and substantive due process
grounds, a Virginia criminal law prohibiting inter-racial marriages.
The Court’s substantive due process analysis was short and to the
point. Rather than asking whether inter-racial marriages were
deeply rooted or ingrained in the fabric of the United States as of
1868, the Court focused more generally on whether marriage—re-
gardless of the races of the spouses—is a fundamental right:
These statutes also deprive the Lovings of liberty
without due process of law in violation of the Due
Process Clause of the Fourteenth Amendment. The
freedom to marry has long been recognized as one of
the vital personal rights essential to the orderly pur-
suit of happiness by free men. Marriage is one of the
‘basic civil rights of man,’ fundamental to our very USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 93 of 173
existence and survival. To deny this fundamental
freedom on so unsupportable a basis as the racial clas-
sifications embodied in these statutes, classifications
so directly subversive of the principle of equality at
the heart of the Fourteenth Amendment, is surely to
deprive all the State’s citizens of liberty without due
process of law. The Fourteenth Amendment requires
that the freedom of choice to marry not be restricted
by invidious racial discriminations. Under our Consti-
tution, the freedom to marry or not marry, a person
of another race resides with the individual and cannot
be infringed by the State.
Id. at 12 (citations omitted). Needless to say, Loving would have
been decided differently if the right at issue had been framed spe-
cifically as of 1868, for “interracial marriage was illegal in most
[s]tates in the 19th century[.]” Planned Parenthood of S.E. Pa. v. Casey,
505 U.S. 833, 847–48 (1992) (plurality opinion). 2
The Supreme Court conducted the same type of analysis in
O’Connor v. Donaldson, 422 U.S. 563 (1975), a substantive due pro-
cess case involving the continued involuntary commitment of a
person with mental illness who posed no harm to himself or others.
The Court identified the fundamental right generally as the liberty
interest of a person to not be confined against his will, and not spe-
cifically as the liberty interest of a harmless mentally ill person
2 I recognize that Casey has been overruled by Dobbs v. Jackson Women’s Health
Org., 597 U.S. 215 (2022), insofar as abortion is concerned, but the quoted state-
ment from Casey is historically unassailable. I discuss Dobbs later. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 94 of 173
whom authorities had refused to release to be free of involuntary
confinement. See id. at 575. After identifying the fundamental right
at stake in general terms, the Court addressed and rejected the
state’s justifications for the continued confinement. See id. at 575–
76. It concluded that “a [s]tate cannot constitutionally confine
without more a nondangerous individual who is capable of surviv-
ing safely in freedom by himself or with the help of willing and
responsible family members or friends.” Id. at 576.
Another relevant case is Lawrence v. Texas, 539 U.S. 558
(2003), in which the Supreme Court set aside, on substantive due
process grounds, the Texas criminal convictions of two adult gay
men who had engaged in consensual sodomy in the privacy of the
home. In so doing the Court overruled Bowers v. Hardwick, 478 U.S.
186 (1986), and said that Bowers had “misapprehended” the perti-
nent liberty interest as the “‘fundamental right [of ] homosexuals
to engage in sodomy.’” Lawrence, 539 U.S. at 566–67 (quoting Bow-
ers, 478 U.S. at 190). Instead, the proper framing of the issue was
whether the “majority may use the power of the [s]tate to enforce
[its] views [condemning homosexual conduct as immoral] on the
whole society through operation of its criminal law.” Id. at 571.
The Texas statute was violative of substantive due process because
it sought “to control a personal relationship that, whether or not
entitled to formal recognition in the law, is within the liberty of
persons to choose without being punished as criminals.” Id. Here
is how the Lawerence Court—which notably relied on 20th-century
developments and decisions by courts in other countries—summa-
rized its holding: USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 95 of 173
The case . . . involve[s] two adults who, with full and
mutual consent from each other, engaged in sexual
practices common to a homosexual lifestyle. The pe-
titioners are entitled to respect for their private lives.
The State cannot demean their existence or control
their destiny by making their private sexual conduct a
crime. Their right to liberty under the Due Process
Clause gives them the full right to engage in their con-
duct without intervention of the government.
Id. at 578. Had the pertinent liberty interest in Lawrence been de-
fined at a “very specific level” (as in Bowers), there is no way the case
would have been decided the way it was. See William J. Rich, Mod-
ern Constitutional Law: Liberty and Equality § 11.7 (3d ed. 2011)
(“In the sexual orientation context . . . a majority of the Justices
resolved the doctrinal tension by defining the liberty interest in
broad terms that included a right to private choices about sexual
intimacy regardless of sexual orientation.”). 3
Then there is Obergefell, where the Supreme Court held that
same-sex couples have a fundamental right, protected by substan-
tive due process, to marry. The Court recognized that “[h]istory
and tradition guide and discipline [the fundamental rights] in-
quiry,” but cautioned that they “do not set its outer boundaries.
3 One of the decisions Lawrence relied on was Griswold v. Connecticut, 381 U.S.
479 (1965). See Lawrence, 539 U.S. at 564–65. Commentators have noted that
before Griswold “no specific, court-defined right to engage in private acts had
existed[.]” 4 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional
Law § 18:27 (5th ed. 2013 & 2023 supp.). USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 96 of 173
That method respects our history and learns from it without allow-
ing the past alone to rule the present.” Obergefell, 576 U.S. at 664.
The Court explained that the limitation of marriage to opposite-
sex couples “may long have seemed natural and just, but its incon-
sistency with the central meaning of the right to marry is now
manifest.” Id. at 670–71. It also specifically addressed and rejected
the argument that the liberty interest at issue had to be framed at
a very different and specific level:
Objecting that this does not reflect an appropriate
framing of the issue, the respondents refer to . . .
Glucksberg, 521 U.S. [at] 721, . . . which called for a
“‘careful description’” of fundamental rights. They
assert the petitioners do not seek to exercise the right
to marry but rather a new and nonexistent “right
to same-sex marriage.” Glucksberg did insist that lib-
erty under the Due Process Clause must be defined in
a most circumscribed manner, with central reference
to specific historical practices. Yet while that approach
may have been appropriate for the asserted right
there involved (physician-assisted suicide), it is incon-
sistent with the approach this Court has used in dis-
cussing other fundamental rights, including marriage
and intimacy. Loving did not ask about a “right to in-
terracial marriage”; Turner did not ask about a “right
of inmates to marry”; and Zablocki did not ask about
a “right of fathers with unpaid child support duties to
marry.” Rather, each case inquired about the right to
marry in its comprehensive sense, asking if there was
a sufficient justification for excluding the relevant
class from the right. That principle applies here. If USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 97 of 173
rights were defined by who exercised them in the
past, then received practices could serve as their own
continued justification and new groups could not in-
voke rights once denied. This Court has rejected that
approach, both with respect to the right to marry and
the rights of gays and lesbians.
Id. at 671 (citations omitted and paragraph structure altered).
Thus, the Court in Obergefell “focused on the individual right to
marry” and not on the right of gay persons to marry. See Stone, et
al., Constitutional Law, at 917.
C
In each of the cases discussed above, the Supreme Court did
in fact find that there was a fundamental right. So, for the sake of
completeness, I’ll discuss two Supreme Court decisions in which
the Court did not find a fundamental right and yet still defined the
rights at issue generally rather than granularly, as done by the panel
here.
I’ll start with Glucksberg. In Glucksberg, the Supreme Court
was called upon to determine whether a state may constitutionally
ban and criminalize physician-assisted suicide. See Glucksberg, 521
U.S. at 707–08. Five physicians, three terminally ill patients, and a
nonprofit organization sued the state of Washington, seeking a
declaration that a state statute criminalizing the promotion of sui-
cide—where a defendant “knowingly causes or aids another person
to attempt suicide”—was facially unconstitutional. See id. at 707
(citing Wash. Rev. Code § 9A.36.060(1) (1994)). Before the Supreme
Court, the physicians and the Ninth Circuit propounded various USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 98 of 173
definitions of the liberty interest at stake, including a “liberty to
choose how to die,” “a right to die,” and a “right to choose a hu-
mane, dignified death.” Id. at 722 (internal quotations omitted).
The Court in Glucksberg rejected those purported definitions as
overly broad and instead held that the question was “whether the
‘liberty’ specially protected by the Due Process Clause includes a
right to commit suicide which itself includes a right to assistance in
doing so.” Id. at 723. It did not, however, define the right as “a right
to commit suicide with another’s assistance” via a legal dosage of
morphine or other opioids, barbiturates, or benzodiazepines, (such
as pentobarbital or secobarbital), or other cardiotoxic agents.
Thus, even the more precise formulation in Glucksberg of the right
at issue—a formulation later Supreme Court cases deemed “cir-
cumscribed,” see Obergefell, 576 U.S. at 671—maintained a level of
generality absent from the panel’s opinion here.
The Court in Glucksberg then went on to address whether the
right to suicide and its inherent right to assistance in doing so was
deeply rooted in this nation’s history, and held that it was not. See
521 U.S. at 723–28. The Court’s analysis emphasized that what was
ingrained into this nation’s history was a traditional abhorrence of
suicide—assisted or not—thus undercutting the idea that such a lib-
erty interest could be deemed fundamental under the Due Process
Clause. See id. But the Court did not look to 1868 to see what
methods of suicide were then prevalent.
Let me next turn to Dobbs, the Supreme Court’s most recent
substantive due process decision. In Dobbs, the Court revisited the USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 99 of 173
abortion question once more. In overruling two of its decisions—
Roe v. Wade, 410 U.S. 113 (1973), and Casey—the Court reconsidered
its previous decisions that the right to an abortion was a constitu-
tionally protected fundamental right. See Dobbs, 597 U.S. at 231–33.
It concluded that it was not. See id. As in Glucksberg, the Court
analyzed the historical treatment of abortion and found that
throughout the course of our Nation’s history, abortion—like sui-
cide—had been condemned and criminalized. See id. at 240–50.
But even in Dobbs—which overruled previous cases finding a
fundamental right to abortion—the Court nonetheless framed the
liberty interest at issue generally. Simply put, the right was charac-
terized as the right to obtain an abortion, and the not the right to
obtain an abortion through methods common in 1868. See id. at
234. In fact, Dobbs inherently rejected the notion that the right
should be tied to the medical specificity utilized by the panel here.
For example, Dobbs rejected the Roe timeline of viability and made
no delineations about whether there is a fundamental right to an
abortion via mifepristone and misoprostol (medical abortion), as-
piration, or dilation and evacuation. See id. at 229–30, 277–80.
The Supreme Court also engaged in an additional step: it
“consider[ed] whether a right to obtain an abortion is part of a
broader entrenched right that is supported by other precedents.”
Id. at 234. Though it found that the right to obtain an abortion was
not in fact entrenched in the broader rights of autonomy and pri-
vacy espoused in cases like Meyer, Pierce, Loving, and Obergefell, it
did so on specific grounds. See id. at 256–57. The Court “sharply” USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 100 of 173
distinguished the abortion right from the rights recognized in
those cases by noting that abortion “destroys . . . potential life.” Id.
at 257 (internal quotations omitted). Therefore, though the non-
abortion cases did not support the right to obtain an abortion, the
Court’s “conclusion that the Constitution does not confer such a
right d[id] not undermine [the non-abortion cases] in any way.” Id.
That the Court engaged in such an inquiry—considering whether
abortion was part of a broader entrenched right—gives credence
to the notion that proposed rights should not be formulated at their
most granular level of specificity.
D
I have selectively chosen the cases summarized above, but
have done so for a reason—to make the point that the Supreme
Court’s substantive due process cases are not always reconcilable
and that trying to make sense of them requires consideration of
the jurisprudence as a whole. The lower federal courts generally
do not have the luxury of picking and choosing their preferred Su-
preme Court decisions. Our job, difficult as it may sometimes be,
is to try to make sense of a jurisprudential landscape which often
is neither linear nor consistent. And to do that, we must consider
all of the relevant Supreme Court precedent in a given area of law,
not just those cases that support a given proposition. Sometimes
that may require choosing one set of Supreme Court decisions over
another. But if that is the case, we have a dual obligation—an ob-
ligation to admit that we are indeed choosing, and an obligation to
explain why we have exercised that choice in a certain way. Consti-
tutional adjudication is necessarily an exercise in judgment. Cf. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 101 of 173
Erwin Chemerinsky, Foreword—The Vanishing Constitution, 103
Harv. L. Rev. 43, 99 (1989) (“The Court must explain why the value
choice made by the constitutional claimant is unworthy of judicial
protection and why the particular decision is better left to the
elected branches of government.”).
If the panel here was going to demand that the right at issue
be defined at a “very specific level” to include the use of specific
transitioning medications for transgender individuals—medica-
tions which did not exist in 1868—it had to account for how the
fundamental right was framed generally in Meyer and Pierce. And
it had to explain why it chose not to follow cases like Loving, O’Con-
nor, Lawrence, and Obergefell, and their more general approach to
defining liberty interests protected by substantive due process. 4
IV
As I see this case, the ultimate resolution of the plaintiffs’
substantive due process claims depends on two questions. The first
is whether parents have a fundamental right, protected by substan-
tive due process, to obtain medically-approved treatment for their
children. If the answer to that question is yes, the second inquiry
is whether Alabama has shown that its laws are narrowly tailored
4 Judge Lagoa, in her statement regarding the denial of rehearing en banc, adds
a new and lengthy discussion of substantive due process in an attempt to de-
fend the panel’s decision. The problem, of course, is that this new discussion
is nowhere to be found in the panel opinion and does not constitute precedent.
All we have in terms of binding law is the panel’s opinion, which is short on
analysis and wrong in rationale. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 102 of 173
to serve a compelling interest. See Glucksberg, 521 U.S. at 721
(“[T]he Fourteenth Amendment ‘forbids the government to in-
fringe . . . “fundamental” liberty interests at all, no matter what
process is provided, unless the infringement is narrowly tailored to
serve a compelling state interest.’”).
But we are reviewing only the grant of a preliminary injunc-
tion, and not a permanent injunction issued after a full trial on the
merits. In this procedural posture we do “not concern [ourselves]
with the merits of the controversy. . . . No attention is paid to the
merits of the controversy beyond that necessary to determine the
presence or absence of an abuse of discretion.” Di Giorgio v. Causey,
488 F.2d 527, 528–29 (5th Cir. 1973). Our task is to determine
whether the district court abused its discretion in, for example, con-
cluding that the plaintiffs demonstrated a substantial likelihood of
success on the merits. See, e.g., Ashcroft v. Am. Civ. Liberties Union,
542 U.S. 656, 666, 669 (2004) (concluding that the district court’s
determination as to likelihood of success was not an abuse of dis-
cretion); LSSI Data Corp. v. Comcast Phone, LLC, 696 F.3d 1114, 1120
(11th Cir. 2012) (“The first question . . . is whether the [d]istrict
[c]ourt abused its discretion in concluding that LSSI has shown a
‘substantial likelihood of success’ on the merits of its claim.”).
The asserted fundamental right here, properly described, is
the right of parents to obtain medically-approved treatment for
their children. In my view, the district court did not abuse its dis-
cretion in concluding that this right is a fundamental liberty inter-
est that the substantive component of the Due Process Clause USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 103 of 173
protects. See, e.g., Parham v. J.R., 442 U.S. 584, 602 (1979) (the rights
of parents “include[ ] a ‘high duty’ to recognize symptoms of ill-
ness and to seek and follow medical advice”); Kanuszewski v. Mich.
Dept. of Health & Human Servs., 927 F.3d 396, 418 (6th Cir. 2019)
(“Parents possess a fundamental right to make decisions concern-
ing the medical care of their children.”); PJ ex rel. Jensen v. Wagner,
603 F.3d 1182, 1197–98 (10th Cir. 2010) (“we do not doubt that a
parent’s general right to make decisions concerning the care of her
child includes, to some extent, a more specific right about the
child’s medical care,” as Parham “reasonably suggests that the Due
Process Clause provides some level of protection for parents’ deci-
sions regarding their children’s medical care,” though those rights
are not absolute); Alexander Van Zijl, Parens Patriae or Government
Overreach: Do Parents Have a Fundamental Right to Control their Chil-
dren’s Medical Care?, 58 Wake Forest L. Rev. 769, 796 (2023) (“Par-
ents’ right to control their children’s medical care is deeply rooted
in the country’s history and traditions, as the survey of Blackstone,
tort restatements, Supreme Court precedent, and the common law
demonstrate.”).
Some courts have incorrectly framed the right as the right
of parents to seek medical treatments that the state has banned. See
L.W., 83 F.4th at 475 (holding, in a 2-1 decision, that “there is no
historical support for an affirmative right” of parents to obtain
“banned medical treatments for their children”); Doe v. Governor of
New Jersey, 783 F.3d 150, 156 (3d Cir. 2015) (“While the case law
supports [the] argument that parents have decision-making author-
ity with regard to the provision of medical care for their children, USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 104 of 173
the case law does not support the extension of this right to a right
of parents to demand that the state make available a particular
form of treatment that the state has reasonably deemed harmful.”);
Pickup v. Brown, 740 F.3d 1208, 1235 (9th Cir. 2014) (the “precise
question . . . is whether parents’ fundamental rights include the
right to choose for their children a particular type of provider for a
particular medical or mental health treatment that the state has
deemed harmful”). Respectfully, I think these courts have mistak-
enly conflated “the right with the deprivation.” Abigail Alliance for
Better Access to Devel. Drugs v. von Eschenbach, 495 F.3d 695, 714 (D.C.
Cir. 2007) (en banc) (Rogers, J., dissenting).
One cannot describe the fundamental right at stake (the first
step in the substantive due process analysis) by attaching to it the
challenged restriction which, at the end of the day, might (or might
not) be narrowly tailored to serve a compelling state interest (the
second step in the substantive due process analysis). The asserted
risks or detriments associated with the right in this context of
transgender treatments “[are] properly considered only after the
right is deemed fundamental.” Id. at 716 (Rogers, J., dissenting).
If the right could be defined as including the legal prohibi-
tion being challenged under substantive due process, Meyer would
have characterized the liberty interest as the right to teach a school
subject in German when the state had deemed such teaching inap-
propriate and harmful to the social fabric. But that is not how
Meyer was decided. The Supreme Court framed the liberty interest
more generally as the right to teach a subject in German, and only USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 105 of 173
after identifying that right as fundamental did it consider whether
Nebraska had sufficiently justified its prohibition. See Meyer, 262
U.S. at 400–01, 403. The same goes for Pierce, Loving, O’Connor,
Lawrence, and Obergefell. See generally Griswold, 381 U.S. at 500 (Har-
lan, J., concurring in the judgment) (“In my view, the proper con-
stitutional inquiry . . . is whether the . . . statute infringes the Due
Process Clause of the Fourteenth Amendment because [it] violates
basic values ‘implicit in the concept of ordered liberty[.]’”) (citation
omitted).
Again, I see no abuse of discretion by the district court.
“[P]arents have, in the first instance, a fundamental right to decide
whether their children should (or should not) undergo a given
treatment otherwise available to adults, and the government can
take the decisionmaking reins from parents only if it comes for-
ward with sufficiently convincing reasons to withstand judicial
scrutiny.” L.W., 83 F.4th at 510 (White, J., dissenting). As the Su-
preme Court wrote in Parham, “[s]imply because the decision of a
parent is not agreeable to a child or because it involves risks does
not automatically transfer the power to make the decision from the
parents to some agency or officer of the state. . . . Neither state
officials nor federal courts are equipped to review such parental de-
cisions.” 442 U.S. at 603–04. 5
5 Given the strong language used by the Supreme Court, I do not understand
how the panel here said that Parham “offers no support” for the parents’ sub-
stantive due process claim. See Eknes-Tucker, 80 F.4th at 1223 (emphasis
added). USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 106 of 173
I do not doubt the general authority of the government to
take legislative action with respect to the medical care of children.
See Otto v. City of Boca Raton, 41 F.4th 1271, 1280–82 (11th Cir. 2002)
( Jordan, J., dissenting from the denial of rehearing en banc). But a
“state cannot simply deem a treatment harmful to children without
support in reality and thereby deprive the parents of the right to
make medical decisions on their children’s behalf.” L.W., 83 F.4th
at 511 (White, J., dissenting).
To repeat, we are here on appeal of a preliminary injunction.
As explained by Judge Rosenbaum in her dissent, the district court
made extensive factual findings. See Eknes-Tucker v. Marshall, 603 F.
Supp. 3d 1131, 1141–43 (M.D. Ala. 2022); Judge Rosenbaum Dissent
at Part I & II.B.2. The panel in this case should have applied clear
error review to the district court’s factual findings and, once the
factual landscape was settled, should have then considered whether
the district court abused its discretion in preliminarily concluding
that Alabama had not shown that its laws were narrowly tailored
to serve a compelling state interest. See Lebron v. Secretary, 710 F.3d
1202, 1218–19 (11th Cir. 2013) ( Jordan, J., concurring) (citing Su-
preme Court and Eleventh Circuit cases for the proposition that
generally an appellate court does not decide the merits of a case
when reviewing a preliminary injunction). The panel, however, did
neither.
By framing the right in a too-specific way, the panel was able
to default to the rational basis test, which in turn allowed it to ig-
nore the district court’s factual findings and not demand any real USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 107 of 173
justification from Alabama for its laws. And, to compound this er-
ror, Judge Lagoa’s statement regarding the denial of rehearing en
banc now engages in its own evaluation of non-record evidence,
provides its own characterization of the facts, and conducts its own
weighing of the evidence. That, in my view, is upside-down appel-
late review.
V
In Adams v. School Board of St. Johns County, 57 F.4th 791 (11th
Cir. 2022) (en banc), we convened as a full court to address whether
a school board’s bathroom policy violated the rights of transgender
students. If that case was important enough to go en banc, this
case is too. I respectfully dissent from the court’s decision to not
rehear this case en banc. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 108 of 173
ROSENBAUM, Circuit Judge, joined by JILL PRYOR, Circuit Judge,
and joined as to Sections I and II by JORDAN, Circuit Judge, dis-
senting from the denial of rehearing en banc:
If ever a case warranted en banc review, this is it. The panel
opinion’s reasoning strips every parent in this Circuit of their fun-
damental right to direct that their children receive any medical
treatment (no matter how well-established and medically en-
dorsed)—except for those medical treatments in existence as of
1868. Yes, 1868—before modern medicine. So in the states of Ala-
bama, Florida, and Georgia, blistering, blood-letting, and leeches
are in, but antibiotics, antivirals, and organ transplants are out.
Yet nothing in the law handcuffs us to nineteenth-century
medicine. To the contrary, Supreme Court precedent recognizes
parents’ fundamental right to direct that their child receive well-
established, evidence-based, non-experimental medical treatment,
subject to medically accepted standards and a physician’s independ-
ent examination and medical judgment. See Parham v. J.R., 442 U.S.
584, 602 (1979). Treatments that do not meet these demanding cri-
teria fall outside the Parham right. But for treatments that do, the
State cannot interfere with parents’ fundamental right to access
those treatments for their children without meeting a demanding
constitutional burden.
The district court’s factual findings—that the treatment at
issue here is well-established, evidence based, medically, endorsed,
and non-experimental—place that treatment squarely within Par-
ham’s fundamental right. See Eknes-Tucker v. Marshall, 603 F. Supp. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 109 of 173
3d 1131, 1144–46 (M.D. Ala. 2022) (“Eknes-Tucker I”). And the panel
opinion didn’t find any of the district court’s factual findings to be
clearly erroneous. So the panel opinion should have—but did
not—apply strict scrutiny in conducting its due-process review.
Had the panel opinion done so, it would have had to conclude that
it is substantially likely that Alabama’s law does not pass muster
under the Due Process Clause. Yet the panel opinion neither ap-
plies strict scrutiny nor reaches the answer that strict scrutiny de-
mands.
The panel opinion is not just bad for Plaintiffs here. It is dis-
astrous for all parents in the Eleventh Circuit. That’s so because,
in reaching its result, the panel opinion applies an unprecedented
methodology that requires us to consider how the particular treat-
ment at issue “inform[ed] the meaning of the Fourteenth Amend-
ment at the time it was ratified—July 9, 1868.” Eknes-Tucker v. Gov-
ernor of Alabama, 80 F.4th 1205, 1221 (11th Cir. 2023) (“Eknes Tucker
II”). I refer to this as the “1868 Methodology.”
But of course, no treatment that didn’t exist or wasn’t dis-
covered by 1868 could hope to “inform[] the meaning of the Four-
teenth Amendment at the time it was ratified.” Id. So the 1868
Methodology imposes a standard that no modern medical treat-
ment can satisfy. And despite its claim to history and tradition, the
1868 Methodology breaks from precedent and the reality of scien-
tific development. It is unsupportable. But because we did not re-
hear this case en banc, the 1868 Methodology is the law of this Cir-
cuit. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 110 of 173
The panel opinion does not stop there. Compounding its
legal errors, the panel opinion then turns a blind eye to the Ala-
bama law’s sex-based classifications, just because they arise in the
context of medical treatment. But precedent contains no such ex-
ception. To the contrary, it subjects sex-based classifications to
heightened constitutional scrutiny. See, e.g., Miss. Univ. for Women v.
Hogan, 458 U.S. 718, 724 (1982). And it extends that scrutiny to dis-
crimination based on transgender status. See Bostock v. Clayton
County, 590 U.S. 644, 660–61 (2020); Glenn v. Brumby,663 F.3d 1312, 1320
(11th Cir. 2011). So in its equal-protection analysis, the panel
opinion should have—but did not—apply intermediate scrutiny.
Again, had it done so, it would have had to conclude that it is sub-
stantially likely that the law is unconstitutional under the Equal
Protection Clause. But once again, the panel opinion did neither.
It’s substantially likely that the Fourteenth Amendment tol-
erates neither the due-process nor equal-protection threats that Al-
abama’s law poses and that the panel opinion permits. But the
panel opinion distorts the due-process and equal-protection anal-
yses, stacking the deck in the Alabama law’s favor. And once the
panel opinion concludes (wrongly) that parents have no fundamen-
tal right at stake (because transitioning medications weren’t around
in 1868) and that the Alabama law doesn’t discriminate on the basis
of sex or transgender status, it deals the rational-basis review card
rather than subjecting the Act to strict or intermediate scrutiny, re-
spectively. Then, the game is in the bag for Alabama because the
Alabama law—like most legislation—satisfies rational-basis review. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 111 of 173
What’s more, the Lagoa Statement now tries to engage in a
do-over—in some places retreating from and in other places com-
pounding the panel opinion’s legal errors. And it relies heavily on
materials that were before neither the district court nor the panel.
Not only that, but the Lagoa Statement substitutes its own factual
findings based on these extraneous and untested outside sources
for the district court’s factual findings, which the panel opinion did
not find to be clearly erroneous. The proper mechanism for a do-
over is the en banc process—not using a statement respecting the
denial of rehearing to paper over the panel opinion’s flawed reason-
ing, reinvent the factual record, and disclaim the panel opinion’s
repercussions.
In short, the panel opinion is wrong and dangerous. Make
no mistake: while the panel opinion continues in force, no modern
medical treatment is safe from a state’s misguided decision to out-
law it, almost regardless of the state’s reason. Worse still, if a state
bans a post-1868 treatment, no parent has legal recourse to provide
their child with that necessary, life-saving medical care in this Cir-
cuit. And if an individual can’t access a medical treatment because
of their sex or transgender status, they are similarly without legal
recourse.
Because of the life-altering and unconstitutional conse-
quences the panel opinion inflicts on the parents and children of
this Circuit, I respectfully dissent from denial of rehearing en banc. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 112 of 173
I. BACKGROUND
Alabama’s Vulnerable Child Compassion and Protection Act
(“Act”) criminalizes the administration of puberty blockers and
hormone therapy to minors—but only if that treatment is “per-
formed for the purpose of attempting to alter the appearance of or
affirm the minor’s perception of his or her gender or sex” and even
in that case, only “if that appearance or perception is inconsistent with
the minor’s sex” at birth. S.B. 184, Ala. 2022 Reg. Sess. § 4(a) (Ala.
2022) (emphasis added). Otherwise, administration of puberty
blockers and hormone therapy to minors is legal. I refer at times
in this dissent to these drugs as “transitioning medications” because
that is what the district court called them. See Eknes-Tucker I, 603 F.
Supp. 3d 1131 at 1139.
Plaintiffs, a group of transgender 1 minors and their parents
as well as medical providers and a reverend whose congregation
includes transgender minors and their families (“Parents” and
1 The district court relied on the following definition of “transgender”: “one
whose gender identity is different from the sex the person had or was identi-
fied as having at birth.” Eknes-Tucker I, 603 F. Supp. 3d at 1138 (citing
Transgender, Merriam-Webster Unabr. Dictionary (3d ed. 2002)). We have
elaborated on the meaning of “transgender,” recognizing that a “transgender”
person “consistently, persistently, and insistently identifies as . . . a gender that
is different than the sex . . . assigned at birth.” Adams ex rel. Kasper v. Sch. Bd.
of St. Johns Cnty., 57 F.4th 791, 807 (11th Cir. 2022) (en banc) (cleaned up). Be-
cause the panel opinion did not find the district court’s definition clearly erro-
neous and the parties do not challenge it on appeal, my dissent employs the
same definition, as informed by our precedent’s definition of the term. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 113 of 173
“Minors” 2), sued to challenge the Act. Id. at 1141. The United
States intervened on behalf of the Parents and Minors. Also in sup-
port of the Parents and Minors, twenty-two healthcare organiza-
tions filed an amicus brief. 3 Id. As for Alabama, 4 fifteen states filed
an amicus brief in support of its position and the Act. Id.
The Parents and Minors sought a preliminary injunction to
halt the Act’s operation while the suit was pending. Id. Following
an evidentiary hearing where the district court received and re-
viewed reams of medical evidence and heard from several wit-
nesses, the district court concluded that the Parents and Minors
2 For ease of reference, I refer collectively to Plaintiffs as “Parents” when dis-
cussing the Parents’ asserted due-process right and “Minors” when discussing
the Minors’ asserted equal-protection right.
3 These organizations included the American Academy of Pediatrics; the Ala-
bama Chapter of the American Academy of Pediatrics; the Academic Pediatric
Association; the American Academy of Child and Adolescent Psychiatry; the
American Academy of Family Physicians; the American Academy of Nursing;
the American Association of Physicians for Human Rights, Inc. d/b/a Health
Professionals Advancing LGBTQ Equality; the American College of Obstetri-
cians and Gynecologists; the American College of Osteopathic Pediatricians;
the American College of Physicians; the American Medical Association; the
American Pediatric Society; the American Psychiatric Association; the Associ-
ation of American Medical Colleges; the Association of Medical School Pedi-
atric Department Chairs; the Endocrine Society; the National Association of
Pediatric Nurse Practitioners; the Pediatric Endocrine Society; the Society for
Adolescent Health and Medicine; the Society for Pediatric Research; the Soci-
ety of Pediatric Nurses; the Societies for Pediatric Urology; and the World Pro-
fessional Association for Transgender Health. Eknes-Tucker I, 603 F. Supp. 3d
at 1141 n.13.
4 For ease of reference, I refer to Defendants collectively as “Alabama.” USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 114 of 173
were “substantially likely to succeed on their Substantive Due Pro-
cess claim” and “on their Equal Protection claim.” Id. at 1146, 1148.
Based on these conclusions and the determination that the Parents
and Minors had shown each of the other preliminary-injunction
factors (they would suffer irreparable harm without an injunction,
and the balance of harms and public interests favored the Parents
and Minors), the district court preliminarily enjoined the Act. Id.
at 1151.
In reaching this decision, the district court made several fac-
tual findings based on the evidence it saw and heard. I summarize
those findings below.
The World Professional Association for Transgender Health
(“WPATH”) considers “transitioning medications as established
medical treatments and publishes a set of guidelines for treating
gender dysphoria in minors with these medications.” Id. at 1139. 5
5 The Lagoa Statement maligns WPATH because, among other functions,
WPATH advocates for transgender individuals. Lagoa St. at 30–31. But many
healthcare professionals view an important part of their job as advocating for
their community of patients. See Mark A. Earnest et al., Physician Advocacy:
What Is It and How Do We Do It?, 85 Acad. Med. 63, 63 (2010) (noting “wide-
spread acceptance of advocacy as a [medical] professional obligation”). That
doesn’t mean they don’t also take the best possible care of their patients. And
in the case of WPATH—“an international interdisciplinary, professional or-
ganization”—its stated mission is “[t]o promote evidence based care, education,
research, public policy, and respect in transgender health.” See World Prof.
Ass’n for Transgender Health, Mission and Vision (last visited Aug. 19, 2024),
https://www.wpath.org/about/mission-and-vision
[https://perma.cc/KVJ3-WKDN] (emphases added). At least 22 major medi-
cal organizations with the professionals, means, and motivation to evaluate USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 115 of 173
And as the district court found, at least 22 major medical organiza-
tions—the American Medical Association, the American Academy
of Pediatrics, the American Pediatric Society, the Association of
American Medical Colleges, and the Association of Medical School
Pediatric Department Chairs, to name just a few 6—in the United
States “endorse [the WPATH] guidelines as evidence-based meth-
ods for treating gender dysphoria in minors.” Id. Indeed, the dis-
trict court noted, Dr. Armand H. Antommaria, an expert in bioeth-
ics and treatment protocols for adolescents suffering from gender
dysphoria, emphasized that “transitioning medications are well-es-
tablished, evidence-based methods for treating gender dysphoria in
minors.” Id. at 1142. Not only that, but at the time of the hearing,
“according to [Alabama’s] own expert, no country or state in the
world categorically ban[ned] their use as Alabama ha[d].” 7 Id. at
1145.
WPATH’s work believe it has done just that, and they endorse and rely on the
WPATH Standards of Care. The Lagoa Statement’s wholesale dismissal of
WPATH’s work fails to reckon with the professional medical community’s
embrace of WPATH as an evidence-based expert in the area of transgender
medicine.
6 These organizations are listed in footnote 3 of this dissent.
7 The Lagoa Statement now tries to refute this finding by pointing to guidance
from England’s National Health Service (“NHS”). Lagoa St. at 4–5, 30–31, 44–
45. Three responses. First, fact-finding in a statement respecting the denial of
rehearing en banc is improper, and that is especially the case when the panel
opinion did not find even one of the district court’s factual findings to be
clearly erroneous. Second, the UK’s actions do not undermine the district
court’s findings, in any case. The district court’s point was that no other coun-
tries have “categorically ban[ned]” the use of transitioning drugs. That is still USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 116 of 173
Besides considering the medical community’s views, the dis-
trict court also recounted that Parent Plaintiff Megan Poe
the case. The Lagoa Statement points to only the United Kingdom’s revised
guidelines to argue otherwise. But even in the UK, “gender affirming hor-
mones” “are available as a routine commissioning treatment option for young
people with continuing gender incongruence/gender dysphoria from around
their 16th birthday.” Clinical Commissioning Policy: Prescribing of Gender Affirm-
ing Hormones (masculinising or feminising hormones) as part of the Children and
Young People’s Gender Service, Nat’l Health Serv. Eng. (Mar. 21, 2024),
https://www.england.nhs.uk/wp-content/uploads/2024/03/clinical-com-
missioning-policy-prescribing-of-gender-affirming-hormones.pdf
[https://perma.cc/TB32-VHCV]. Plus, the UK’s temporary ban on puberty
blockers that will dissolve in September permits current patients to continue
their preexisting course of treatment and allows doctors to conduct clinical
trials, TransActual CIC v. Sec’y of State for Health and Social Care [2024] EWHC
1936 (Admin), ¶ 148—but Alabama’s law has no exceptions. Third, it’s not
clear that the “Cass Review” that the UK relies on would satisfy our courts’
evidence-reliability standards. See FED. R. EVID. 702, 803(8)(B). “Most of the
Review’s known contributors have neither research nor clinical experience in
transgender healthcare.” Meredithe McNamara et al., An Evidence-Based Cri-
tique of “The Cass Review” on Gender-affirming Care for Adolescent Gender
Dysphoria 3 (July 1, 2024), https://law.yale.edu/sites/default/files/docu-
ments/integrity-project_cass-response.pdf [https://perma.cc/N9Q7-AHKS].
Also, at least one commentator has noted that the Review’s conclusions are
“deeply at odds with the [its] own findings . . . . Far from evaluating the evi-
dence in a neutral and scientifically valid manner, the Review obscures key
findings, misrepresents its own data, and is rife with misapplications of the
scientific method.” Id. at 36; see also Chris Noone et al., Critically Appraising the
Cass Report: Methodological Flaws and Unsupported Claims, OSFPREPRINTS (June
9, 2024), https://osf.io/preprints/osf/uhndk [https://perma.cc/H9N9-
N2XK]; D.M. Grijseels, Biological and Psychosocial Evidence in the Cass Review: A
Critical Commentary, INT. J. TRANSGENDER HEALTH, June 8, 2024, at 1. But then
again, the point isn’t that the Lagoa Statement relies on inaccurate infor-
mation—it’s that it’s not our role to fact-find in the first place. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 117 of 173
“specifically described the positive effects transitioning treatments
have had on her fifteen-year-old transgender daughter, Minor Plain-
tiff Allison Poe.” Id. at 1142. As the court explained, “[d]uring her
early adolescent years, Allis[]on suffered from severe depression
and suicidality due to gender dysphoria.” Id. But after she started
taking transitioning medications at the end of sixth grade, “her
health significantly improved as a result.” Id. Indeed, Megan said
her daughter was now “happy and ‘thriving.’” Id. But Megan
“feared her daughter would commit suicide” if she were no longer
able to take the medications. Id.
For its part, Alabama presented an expert psychologist wit-
ness, but after reviewing his testimony, the district court was not
impressed. See id. at 1142–43. Rather, the district court gave “very
little weight” to his testimony, noting that he practiced in Canada
(not the United States); that his patients were, on average, thirty
years old, and he had never treated minors with gender dysphoria;
that he had no personal experience monitoring patients receiving
transitioning medications; and that he lacked personal knowledge
of the assessments or treatment methodologies any Alabama gen-
der clinic employed. Id.
As for Alabama’s other live witness, 8 Sydney Wright—the
woman whose malpractice story the Lagoa Statement tells, see
8 Alabama also submitted eleven declarations. Of the declarations, three were
from patients (Corinna Cohn (Appendix C to Lagoa Statement), Carol Freitas
(Appendix B to Lagoa Statement), and KathyGrace Duncan (Appendix A to
Lagoa Statement)). Freitas and Duncan were adults when they began transi-
tioning medications, and Cohn was eighteen. None of the patients’ parents USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 118 of 173
Lagoa St. at 1–2—the district court found she took transitioning
medications for about a year, beginning when she was nineteen
years old. See Eknes-Tucker I, 603 F. Supp. 3d at 1143. Her parents
were not involved in her decision to start taking transitioning med-
ications. And even though she was an Alabama citizen, she re-
ceived none of her treatment in Alabama. See id. It’s also clear
from her testimony (as the Lagoa Statement describes) that the
“treatment” Wright received did not come close to following the
WPATH Standards of Care. See, e.g., Lagoa St. at 1 (noting that
were involved in their decisions to begin transitioning medications. But the
point here is that, crediting their declarations, their “treatment” did not follow
WPATH Standards of Care. See, e.g., Freitas Decl. ¶ 9 (stating she received
testosterone just by asking, and the provider gave her “no information” about
the medication, its risks, and its side effects; nor did the provider address her
underlying “emotional or mental health issues”). In other words, all three in-
volve malpractice cases, a fact the Lagoa Statement ignores, Lagoa St. at 2 n.1.
But given that the administering practitioners violated WPATH standards—
including by failing to obtain informed consent—it makes little sense to rely
on these three patients’ statements for the proposition that they did not un-
derstand the effects of cross-sex hormones and puberty blockers. As for the
remaining eight declarations, they are from parents (Barbara F., John Doe,
John Roe, Kristine W., Martha S., Jeanne Crowley, Kellie C., and Gary
Warner). Some of those also relate stories where the providers did not follow
WPATH Standards of Care. See, e.g., Warner Decl. Another concedes that no
gender-affirming care has been administered to her child because she declined
to consent. See Decl. of Barbara F. That declaration and others also complain
that, because their states don’t outlaw transitioning medications, it falls on
them to tell their children “no.” See, e.g., Decl. of Kristine W.; Decl. of John
Roe; Decl. of Martha S. Of the eleven declarants, only two state that they
were residents of Alabama. And several others admit that they are not from
Alabama and that the events they recount did not occur in Alabama. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 119 of 173
Wright saw a counselor who never explored her underlying mental-
health and emotional issues but instead told her to begin testos-
terone and undergo a double mastectomy). 9
Turning to Alabama’s “proffered purposes” for the Act, the
district court found them to be “speculative, future concerns about
the health and safety of unidentified children.” Eknes-Tucker I, 603
F. Supp. 3d at 1146. For starters, the district court noted that Ala-
bama justified the Act by describing transitioning medications as
“experimental.” Id. at 1140. But the district court found that, in
fact, Alabama “produce[d] no credible evidence to show that tran-
sitioning medications are ‘experimental.’” Id. at 1145; see also id.
(“[Alabama] fail[s] to show that transitioning medications are ex-
perimental.”). And more broadly, the district court found that Ala-
bama’s stated purposes for the Act were “not genuinely compelling
justifications based on the record evidence.” Id. at 1146.
To the contrary, based on all the evidence, the district court
determined that the use of transitioning medications adhered to
“medically accepted standards.” Id. Though the district court rec-
ognized that “transitioning medications carry risks,” the court reit-
erated the Supreme Court’s determination that “the fact that
9 In contrast, the WPATH Standards of Care seek to ensure that the minor’s
“mental health concerns (if any) that may interfere with diagnostic clarity, ca-
pacity to consent, and gender-affirming medical treatments have been ad-
dressed” before the minor begins to use transitioning medications. See E.
Coleman et al., Standards of Care for the Health of Transgender and Gender Diverse
People, Version 8, INT. J. TRANSGENDER HEALTH, Sept. 15, 2022, at S62 [herein-
after WPATH Standards] [https://perma.cc/FQD7-YSFJ]. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 120 of 173
pediatric medication ‘involves risks does not automatically transfer
the power’ to choose that medication ‘from the parents to some
agency or officer of the state.’” Id. (quoting Parham, 442 U.S. at
603). Rather, in the district court’s view, “[p]arents, pediatricians,
and psychologists—not the State or this Court—are best qualified
to determine whether transitioning medications are in a child’s best
interest on a case-by-case basis.” Id.
We must accept the district court’s factual findings—all of
them—as true unless they are clearly erroneous. See, e.g., Hargray
v. City of Hallandale, 57 F.3d 1560, 1567 (11th Cir. 1995). In vacating
the district court’s preliminary injunction, the panel opinion found
none of the district court’s factual findings to be clearly erroneous.
Yet it still concluded that the Parents were not likely to succeed on
the merits of either their due-process or equal-protection claim, de-
parting from both the record and binding precedent. See Eknes-
Tucker II, 80 F.4th at 1231. In doing so, the panel committed both
legal and factual error.
The Lagoa Statement doubles down on this error. Of
course, a statement respecting the denial of rehearing cannot find
a district court’s factual findings to be clearly erroneous, especially
when the panel opinion did not. But that doesn’t stop the Lagoa
Statement from relying on unvetted sources from outside the rec-
ord to argue, contrary to the district court’s factual findings, that
transitioning medications are not well-established, evidence-based,
or non-experimental treatment. This attempted do-over is just as
wrong as the panel opinion, as I detail below. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 121 of 173
II. The panel opinion wrongly concludes that the Parents
are not substantially likely to succeed on the merits of their
due-process claim.
The Fourteenth Amendment’s Due Process Clause prohibits
any state from “depriv[ing] any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV, § 1. It guar-
antees both procedural and substantive rights. Washington v. Glucks-
berg, 521 U.S. 702, 719–20 (1997). Among those guaranteed sub-
stantive rights are “fundamental rights and liberties which are, ob-
jectively, 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.” Id. at 721 (cleaned
up).
A law that burdens a fundamental right must survive strict
scrutiny, or it is unconstitutional. See, e.g., Lofton v. Sec’y of Dep’t of
Child. & Fam. Servs., 358 F.3d 804, 815 (11th Cir. 2004). Strict scru-
tiny requires the law to be “narrowly tailored to further a compel-
ling government interest.” Id. It is hard for laws to survive strict
scrutiny’s tightly woven filter.
In contrast, we apply rational-basis review to evaluate the
constitutionality of a law that interferes with a right that is not fun-
damental. Rational-basis review is a sieve. It asks only whether
“there is any reasonably conceivable state of facts that could pro-
vide a rational basis” for the burden. FCC v. Beach Commcn’s, Inc.,
508 U.S. 307, 313(1993); see also Jones v. Governor of Fla.,975 F.3d 1016
, 1034 (11th Cir. 2020) (holding that under rational-basis USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 122 of 173
review, “we must uphold [a law] if there is any conceivable basis
that could justify it”). So it is no surprise that courts “hardly ever
strik[e] down a policy as illegitimate under rational basis scrutiny.”
Jones, 975 F.3d at 1034 (quoting Trump v. Hawaii, 585 U.S. 667, 705
(2018)); see also Lagoa St. at 43 (characterizing rational-basis review
as “remarkably lenient”).
With this framework in mind, Section A shows that parents’
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 exam-
ination and medical judgment, is a fundamental right, “deeply
rooted in this Nation’s history and tradition, and implicit in the con-
cept of ordered liberty, such that neither liberty nor justice would
exist if they were sacrificed,” Glucksberg, 521 U.S. at 721 (cleaned
up). Section B explains why the treatment the Parents seek here
falls within that right’s scope. And because the Parents’ right is a
fundamental one, Section C applies strict scrutiny and shows why
it is substantially likely that the Act violates substantive due process.
A. Parents’ liberty interest in directing that their children receive well-
established, evidence-based, non-experimental medical treatment,
subject to medically accepted standards and a physician’s inde-
pendent examination and medical judgment is a fundamental
right.
1. The panel opinion erroneously dismisses Supreme
Court precedent recognizing the fundamental right that
the Parents assert. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 123 of 173
Due-process jurisprudence requires “a ‘careful description’
of the asserted fundamental liberty interest.” Glucksberg, 521 U.S.
at 721(quoting Reno v. Flores,507 U.S. 292, 302
(1993)). The Su-
preme Court has long recognized that “[i]t is cardinal . . . that the
custody, care and nurture of the child reside first in the parents,
whose primary function and freedom include preparation for obli-
gations the state can neither supply nor hinder.” Prince v. Massachu-
setts, 321 U.S. 158, 166 (1944).
As a result, the Due Process Clause provides parents with
“the fundamental right . . . to make decisions concerning the care,
custody, and control of their children,” which is “perhaps the oldest
of the fundamental liberty interests recognized by th[e] Court.”
Troxel v. Granville, 530 U.S. 57, 65–66 (2000) (plurality opinion); see
also, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (“the right of
the individual to . . . bring up children”); Pierce v. Soc’y of the Sisters
of the Holy Names of Jesus & Mary, 268 U.S. 510, 534–35 (1925) (“the
liberty of parents and guardians to direct the upbringing and edu-
cation of children under their control”); Quilloin v. Walcott, 434 U.S.
246, 255 (1978) (“freedom of personal choice in matters of . . . fam-
ily life” (quoting Cleveland Board of Education v. LaFleur, 414 U.S. 632,
639–640 (1974)); Santosky v. Kramer, 455 U.S. 745, 753 (1982) (“the
fundamental liberty interest of natural parents in the care, custody,
and management of their child”).
The Supreme Court has recognized that the umbrella of this
fundamental right shelters other, more specific rights. This is
where the “careful description” of the right comes in. For instance, USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 124 of 173
the Court has held that a parent’s narrower, more carefully de-
scribed fundamental right to direct the education of his child falls
within the fundamental right “of the individual to . . . bring up chil-
dren.” Meyer, 262 U.S. at 399; Pierce, 268 U.S. at 534–35. The Lagoa
Statement dismisses this carefully described right as irrelevant to
the issue before us, see Lagoa St. at 13–15, but it misses the point:
that the Supreme Court has recognized several carefully described
fundamental rights that live under the “the fundamental right . . .
to make decisions concerning the care, custody, and control of
their children,” Troxel, 530 U.S. at 66.
Another carefully described fundamental right that the Su-
preme Court has recognized is parents’ fundamental right to direct
that their child receive well-established, evidence-based, non-exper-
imental medical treatment, subject to medically accepted standards
and a physician’s independent examination and medical judgment.
See Parham, 442 U.S. at 602.
In Parham, minors sought a declaratory judgment that Geor-
gia’s voluntary-commitment procedures for children under the age
of 18 violated due process, and the minors requested an injunction
against the future enforcement of these procedures. Id. at 587–88.
Under the procedures, a parent could apply for her child’s admis-
sion for hospitalization. Id. at 591. The Parham minors challenged
these procedures as a violation of their own procedural-due-pro-
cess rights. See id. at 588.
In determining whether the procedures satisfied procedural
due process, the Supreme Court first identified the nature of the USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 125 of 173
interests at stake. See id. at 599–606. After all, the process due de-
pends largely on the nature of the interest affected. See Mathews v.
Eldridge, 424 U.S. 319, 334 (1976).
Among other parties’ interests to factor into the process-due
calculation, the Supreme Court identified “the interests of the par-
ents who have decided, on the basis of their observations and inde-
pendent professional recommendations, that their child needs in-
stitutional care.” Parham, 442 U.S. at 601–02. To evaluate the
weight of that interest—and thus the process due—the Court dis-
cussed the interest in more detail.
The Court first observed that “our constitutional system
long ago . . . asserted that parents generally have the right, coupled
with the high duty, to recognize and prepare their children for ad-
ditional obligations.” Id. at 602 (cleaned up). In other words, the
Court invoked the umbrella fundamental right of parents to direct
the care, custody, and control of their children.
The Court continued, “Surely, this includes a ‘high duty’ to
recognize symptoms of illness and to seek and follow medical ad-
vice.” Id. Indeed, the Court explained, the law “historically . . . has
recognized that natural bonds of affection lead parents to act in the
best interests of their children.” Id. Thus, “[s]imply because the
decision of a parent . . . involves risks does not automatically trans-
fer the power to make that decision from the parents to . . . the
state.” Id. at 603.
To illustrate this principle, the Court pointed to parents’
right to have “tonsillectom[ies], appendectom[ies], or other USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 126 of 173
medical procedure[s]” performed on their children. Id. These ex-
amples show that the Court understood a parent’s fundamental
right to direct the medical care of her child to refer to the category
of well-established, evidence-based, non-experimental medical
treatments. They also show that, with respect to this category of
medical treatments, the Court recognized that a state’s invocation
of risks, standing alone, does not justify a state’s decision to outlaw
the treatment.
Ultimately, the Court concluded that parents “retain plenary
authority to seek such care for their children, subject to a physi-
cian’s independent examination and medical judgment.” Id. at 604.
Thus, the Court recognized parents’ fundamental right to direct
that their child receive well-established, evidence-based, non-exper-
imental medical treatment, subject to medically accepted standards
and a physician’s independent examination and medical judgment.
And the right that Parham recognized is the very fundamen-
tal right that the Parents here invoke.
That the Supreme Court recognized such a fundamental
right makes perfect sense when we consider the principles animat-
ing substantive due process. Substantive due process protects only
those rights “deeply rooted in this Nation’s history and tradition,
and implicit in the concept of ordered liberty, such that neither lib-
erty nor justice would exist if they were sacrificed.” Glucksberg, 521
U.S. at 721 (cleaned up). It is hard to imagine a right less amenable
to sacrifice while liberty and justice still exist than a parent’s right
to save her child’s life with well-established, evidence-based, non- USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 127 of 173
experimental medical treatment, subject to medically accepted
standards and a physician’s independent examination and medical
judgment. And what are liberty and justice if not the right of a
parent to protect her child from death with a non-experimental
medical treatment, based on a physician’s recommendation?
Yet the panel opinion and the Lagoa Statement wave off Par-
ham for six reasons. None stands up to examination.
First, the panel opinion dismisses Parham as a procedural-
due-process case, not a substantive-due-process case. See Eknes-
Tucker II, 80 F.4th at 1223. But Parham was necessarily both. Only
after the Court recognized the nature of the parental right involved
could the Court assess the process due to protect against violations
of that right. So the Supreme Court’s acknowledgment of parents’
fundamental right to direct the medical care of their children was
just as necessary to the Court’s due-process holding as was its anal-
ysis of the voluntary-commitment procedures. And we are bound
equally by both. See Powell v. Thomas, 643 F.3d 1300, 1305 (11th Cir.
2011) (“[H]olding is comprised both of the result of the case and
those portions of the opinion necessary to that result by which we
are bound.” (cleaned up)). As a result, the panel opinion wrongly
marginalizes Parham as merely a procedural-due-process case.
Second, the Lagoa Statement asserts that a later case under-
mined Parham’s clear application here. Lagoa St. at 22 (citing Cru-
zan ex rel. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990)).
Cruzan did no such thing. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 128 of 173
In support of its (mistaken) contention, the Lagoa State-
ment quotes Cruzan’s remark, id. at 22–23, referring to Parham, that
the petitioners there sought “to turn a decision which allowed a
State to rely on family decisionmaking into a constitutional re-
quirement that the State recognize such decisionmaking.” Cruzan,
497 U.S. at 286. But the Lagoa Statement takes this passage out of
context.
In Cruzan, the parents of an adult woman who was injured
in a car accident and had “virtually no chance of regaining her men-
tal faculties” sought, on the woman’s behalf, to terminate her nu-
trition and hydration. 497 U.S. at 267. The state prohibited them
from doing so because the right to refuse treatment was the
woman’s—not her parents’ or any other family members’—and
she had not sufficiently memorialized her desire to decline treat-
ment rather than live in a vegetative state. See id. at 280, 287 n.12.
In the Supreme Court, the parents argued that the state
“must accept the ‘substituted judgment’ of close family members
even in the absence of substantial proof that their views reflect the
views of the patient.” Id. at 285–86. The Supreme Court rejected
that because, among other reasons, “[a] State is entitled to guard
against potential abuses” by family members who “will not act to
protect a patient.” Id. at 281, 286. Only in that context did the
Court dismiss the family members’ Parham argument as “seek[ing]
to turn a decision which allowed a State to rely on family deci-
sionmaking into a constitutional requirement that the State recog-
nize such decisionmaking.” Id. at 286. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 129 of 173
In context, Cruzan bears no resemblance to this case. So it
makes no difference that “Cruzan did not distinguish Parham on any
of the grounds” I point out. Lagoa St. at 23.
To start, Cruzan concerned close family members’ rights to
direct an adult’s medical care, not parental rights concerning a mi-
nor child. But Parham did not purport to recognize a fundamental
right of family members of an adult. Indeed, the Parham right lives
under the more general, “perhaps . . . oldest of the fundamental
liberty interests recognized by th[e] Court”: “the fundamental right
of parents to make decisions concerning the care, custody, and con-
trol of their children.” Troxel, 530 U.S. at 65–66. This right by its
terms and by the precedent it has begotten applies solely to a par-
ent’s fundamental right to make decisions about their minor chil-
dren. And unlike with the right at stake in Cruzan, the law “histor-
ically . . . has recognized that natural bonds of affection lead parents
to act in the best interests of their children.” Parham, 442 U.S. at
602. In contrast, no constitutional grounds existed for deferring to
a relative’s decision on behalf of an adult, at least without “compe-
tent and probative evidence establish[ing] that the patient herself
had expressed a desire that the decision to terminate life-sustaining
treatment be made for her by that individual.” Cruzan, 497 U.S. at
287 n.12. In other words, Cruzan, and the grounds on which it dis-
tinguished Parham, had nothing to do with a minor child’s parent’s
right to access medical care that falls within Parham’s scope. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 130 of 173
And Cruzan involved the right to withdraw medical treat-
ment to allow the adult patient to die, not the parents’ right to di-
rect potentially life-saving medical treatment.
Given these two significant differences, the Court concluded
that Parham did not control Cruzan’s novel facts—the petitioners’
asserted right to direct the withdrawal of their adult relative’s med-
ical care. But the Court did not purport to limit Parham’s funda-
mental right of a parent to direct that her child receive well-estab-
lished, evidence-based, non-experimental medical treatment, sub-
ject to medically accepted standards and a physician’s independent
examination and medical judgment. See Parham, 442 U.S. at 602.
That issue was not even before the Court.
So it is no answer that Parham did not elevate familial deci-
sion-making—by any close family member—in all circumstances.
Here, Parham directly applies. And “when a precedent of the Su-
preme Court has direct application, we must follow it.” United
States v. Johnson, 921 F.3d 991, 1001 (11th Cir. 2019) (en banc)
(cleaned up). We cannot, as the Lagoa Statement does, sidestep it.
Third, the panel opinion says, “Parham does not at all suggest
that parents have a fundamental right to direct a particular medical
treatment for their child that is prohibited by state law.” Eknes-
Tucker II, 80 F.4th at 1223; see also Lagoa St. at 20–23. Wrong again.
That’s exactly what it stands for: parents have a fundamental right
to direct the care of their child with any medical treatment that
satisfies the Parham category’s requirements. In other words, Par-
ham answers what the Lagoa Statement refers to as the “antecedent USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 131 of 173
question”: whether parents have a fundamental right to direct the
care of their child with certain medical treatments. Lagoa St. at 22
n.11. And states cannot trample that right unless they have a com-
pelling reason to do so and their legislation is narrowly tailored to
address that compelling reason.
Nowhere did Parham purport to qualify its right with a state-
law limitation. Nor would that limitation make sense, or funda-
mental rights would be meaningless. If the Lagoa Statement were
correct, any “fundamental right” would evaporate instantly upon
a state’s banning of a particular treatment. That is, it would enjoy
no protection. And what’s a fundamental right if the state can ab-
rogate it at will?
The Lagoa Statement’s contrary contention elementally
misunderstands the nature of a fundamental right. Constitutional
protections are not so susceptible to state-law abrogation.
Fourth, the Lagoa Statement invokes Circuit precedent to
suggest we have somehow cabined Parham’s right. Lagoa St. at 12–
14 (first citing Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005); and then
citing Morrissey v. United States, 871 F.3d 1260 (11th Cir. 2017)). We
haven’t, and we couldn’t. We are bound by Parham. In any case,
the precedent the Lagoa Statement invokes does not bear on the
analysis here.
In Doe, the plaintiffs made only “broad claims that the [chal-
lenged law] infringe[d] their liberty and privacy interests.” 410 F.3d
at 1343. We rejected a “broad category” of due-process rights for
which “any alleged infringement on privacy and liberty will be USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 132 of 173
subject to substantive due process protection.” Id. at 1344. And
because the plaintiffs’ asserted right was so “broad,” we had “to de-
fine the scope of the claimed fundamental right” in the first in-
stance. Id. By contrast, the Parents do not rely on a “broad cate-
gory.” Rather, they rely on the careful description of the right that
Parham has already recognized.
Morrissey is similarly uninstructive. There, the plaintiff
claimed to assert the “fundamental right to procreate,” but he re-
ally asserted a right to enlist the state to assist him in procreation—
by providing a tax write-off for in vitro fertilization. See 871 F.3d at
1269. The plaintiff there relied on Skinner v. Oklahoma, 316 U.S. 535,
536 (1942), which invalidated a law authorizing forced sterilization
of individuals with certain criminal convictions. But Skinner impli-
cated the right not to have the state affirmatively destroy one’s right
to procreate (at least not on an inequitable basis). See id. at 541–43.
The rights at issue were not the same right, even at the highest level
of abstraction. So Morrissey does not bear on the case here or on
Parham. Rather, unlike in Morrissey, Parham recognized the funda-
mental right here. And as an inferior court, we lack the power to
narrow a fundamental right that the Supreme Court has already
recognized.
Fifth, the Lagoa Statement points to yet another inapposite
case—this time from outside our Circuit: Abigail Alliance for Better
Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695 (D.C. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 133 of 173
Cir. 2007) (en banc). See Lagoa St. at 27–28. 10 Abigail Alliance held
that terminally ill patients do not an enjoy a fundamental “right of
access to experimental drugs that have passed limited safety trials
but have not been proven safe and effective.” 495 F.3d at 697. But
for the reasons I explain below, that case does not undermine Par-
ham’s applicability or the Parents’ fundamental right here.
Of course, Abigail Alliance does not bind us.
But even if it did, the claimed right in Abigail Alliance was
different from the right Parham recognizes and the Parents here in-
voke. In Abigail Alliance, the terminally ill patients asserted the
right to use experimental new drugs that the U.S. Food and Drug
Administration (“FDA”) had not approved for any use, that were
not widely accepted, and that were not the standard of medical
care. See id. at 700. In contrast, the fundamental right Parham rec-
ognizes is parents’ right to direct the care of their children with
well-established, evidence-based, non-experimental medical treat-
ment, subject to medically accepted standards and a physician’s in-
dependent examination and medical judgment.
And as a factual matter, the medical treatment here differs
from those at issue in Abigail Alliance. The district court here found
that transitioning medications (1) were not new drugs, as “medical
10 The panel opinion itself does not cite Abigail Alliance, though it cites L.W. ex
rel. Williams v. Skrmetti, 83 F.4th 460, 477 (6th Cir. 2023), cert. granted sub nom.
United States v. Skrmetti, ___ S. Ct. ___, 2024 WL 3089532 (June 24, 2024),
which relies in part on Abigail Alliance to reach a similar conclusion to the panel
here. See Eknes-Tucker II, 80 F.4th at 1224, 1225 n.19. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 134 of 173
providers have used transitioning medications for decades to treat
medical conditions other than gender dysphoria”; (2) Alabama
“produce[d] no credible evidence to show that transitioning medi-
cations are ‘experimental’”; (3) “the uncontradicted record evi-
dence is that at least twenty-two major medical associations in the
United States endorse transitioning medications as well-estab-
lished, evidence-based treatments for gender dysphoria in minors”;
and (4) the use of transitioning medications to treat gender dyspho-
ria in minors is “subject to medically accepted standards.” Eknes-
Tucker I, 603 F. Supp. 3d at 1145. Not only that, but unlike the new
and experimental drugs at issue in Abigail Alliance, which were not
FDA-approved for any purpose, the FDA has approved puberty
blockers to treat central precocious puberty, a condition that in-
volves early sexual development in girls and boys. 11 It has also ap-
proved the use of hormone therapy for various conditions other
than gender dysphoria. 12
11 See Cleveland Clinic, Precocious Puberty/Early Puberty (last visited Aug. 19,
2024) https://my.clevelandclinic.org/health/diseases/21064-precocious-
early-puberty [https://perma.cc/UM5B-BBTK].
12 See, e.g., U.S. Food & Drug Admin., Menopause: Medicines to Help You (Aug.
22, 2019), https://www.fda.gov/consumers/free-publications-women/men-
opause-medicines-help-you [https://perma.cc/UKV5-U6UQ]; U.S. Food &
Drug Admin., FDA Approves Weekly Therapy for Adult Growth Hormone Deficiency
(Sept. 1, 2020), https://www.fda.gov/drugs/news-events-human-drugs/fda-
approves-weekly-therapy-adult-growth-hormone-deficiency
[https://perma.cc/75VU-T28M]. Besides these FDA-approved uses of hor-
mones in adults, hormone therapies are widely prescribed and administered
off-label for minors for intersex pubertal development and conditions such as
gynecomastia (the overdevelopment or enlargement of the breast tissue in USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 135 of 173
Plus, in pediatric medicine, off-label drug use 13 (such as using
FDA-approved puberty blockers and hormones to treat severe gen-
der dysphoria) is not “improper, illegal, contraindicated, or investi-
gational.” 14 Kathleen A. Neville et al., Off-label Use of Drugs in Chil-
dren, 133 Pediatrics 563, 563 (2014). Nor is it considered “experi-
ment[al] or research.” Id. at 565. In fact, off-label medication use
by minors is especially common and often necessary because an
“overwhelming number of drugs” have no FDA-approved instruc-
tions for use in pediatric patients. Id. at 563. That is so because the
child patient population is “frequently excluded from clinical tri-
als.” Furey & Wilkins, supra n.13, at 589. And even the Alabama
legislature has recognized that “[o]ff-label use of an FDA-approved
drug is legal when prescribed in a medically appropriate manner
boys). See, e.g., Garry L. Warne et al., Hormonal Therapies for Individuals with
Intersex Conditions, 4 Treatments in Endocrinology 19, 19–29 (2012); Ronald S.
Swerdloff et al., Gynecomastia: Etiology, Diagnosis, and Treatment (last updated
Jan. 6, 2023), https://www.ncbi.nlm.nih.gov/books/NBK279105/
[https://perma.cc/EVU2-8C8H].
13 “‘Off-label’ drug use commonly refers to prescribing currently available
medication for an indication (disease or symptom) for which it has not re-
ceived FDA approval. Off-label use also includes prescribing a drug for a dif-
ferent population or age range than that in which it was clinically tested and
using a different dosage or dosage form.” Katrina Furey & Kirsten Wilkins,
Prescribing “Off-Label”: What Should a Physician Disclose?, 18 AMA J. Ethics 587,
588 (2016) (internal citations omitted).
14 See also H. Christine Allen et al., Off-Label Medication Use in Children, More
Common than We Think: A Systematic Review of the Literature, 111 J. Okla. State
Med. Ass’n 776, 781 (2018). USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 136 of 173
and is often necessary to provide needed care.” ALA. CODE § 27-1-
10.1(a)(5) (2022).
So neither Abigail Alliance’s holding nor its reasoning carries
persuasive weight here. Rather, Parham controls the analysis. And
as I’ve explained, Parham recognizes the Parents’ asserted right as
fundamental.
Sixth and finally, unable to show that Parham’s right doesn’t
remain intact, the Lagoa Statement tries to remove this case from
Parham’s reach by suggesting that gender-affirming treatment is
not “medical care.” See Lagoa St. at 3–5. But the record evidence,
the medical consensus, the district court’s factual findings, and
common sense all rebut that. Under the leading authority—the
WPATH Standards of Care—treatment “involv[es] holistic inter-
and multidisciplinary care between endocrinology, surgery, voice
and communication, primary care, reproductive health, sexual
health and mental health,” including the provision of “hormone
therapy.” 15 This treatment is indisputably “medical.” The Lagoa
Statement can’t use a patently incorrect characterization to remove
this case from Parham’s reach.
So it pivots, arguing instead that whether gender-affirming
care qualifies as “life-saving” or even as “medical care” is itself a
“policy” question for the state. See Lagoa St. at 3–5. But that ma-
neuver fails just as certainly. For starters, Alabama does not as-
sert—nor could it—that the Act does not prohibit “medical” care.
15 WPATH Standards, supra n.9, at S7. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 137 of 173
And no one could rationally claim that medical care that reduces
rates of “suicidality” (as well as “self-harm”) is not “life-saving.”
Eknes-Tucker I, 603 F. Supp. 3d at 1150.
But more to the point, courts do not defer to the legislature
when the question is whether the conduct at issue falls within the
“the scope of [a plaintiff’s] constitutional rights.” United States v.
Mills, 138 F.3d 928, 937(11th Cir.), opinion modified on reh’g,152 F.3d 1324
(11th Cir. 1998). That medical care “involves risks does not
automatically transfer the power to make” a medical “decision
from the parents to some agency or officer of the state.” Parham,
442 U.S. at 603. Rather, to transfer that power, the facts must show
that the conduct at issue falls outside the scope of Plaintiffs’ consti-
tutional rights—that is, that it is not a well-established, evidence-
based, non-experimental medical treatment, subject to medically
accepted standards and a physician’s independent examination and
medical judgment (or the state’s solution must survive strict scru-
tiny).
It is very much the courts’ responsibility to assess whether
the state has proved that a treatment it seeks to regulate falls within
or outside the fundamental Parham category. See, e.g., United States
v. Stevens, 559 U.S. 460, 468–471 (2010) (placing the burden on the
government to show that the speech it is attempting to regulate is
unprotected); New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597
U.S. 1, 18 (2022) (placing the burden on the government to show
that the challenged regulation falls outside to scope of the Second-
Amendment right). Alabama failed to show that the use of USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 138 of 173
transitioning medications isn’t within the protected Parham cate-
gory. And the panel opinion didn’t find the district court’s factual
finding to that effect to be clearly erroneous. The Lagoa Statement
can’t dodge these inconvenient legal realities by trying to make the
state the unchecked fact-finder of what qualifies as “medical care.”
In sum, Parham recognizes parents’ fundamental right to di-
rect the medical care of their children with well-established, evi-
dence-based, non-experimental medical treatment, subject to med-
ically accepted standards and a physician’s independent examina-
tion and medical judgment. And it’s the Lagoa Statement’s mach-
inations to avoid being bound by Parham—not this dissent—that
“mark out new terrain.” Lagoa St. at 23.
2. The panel opinion unjustifiably imposes an historical
requirement that no modern medical treatment could sat-
isfy.
Besides incorrectly sidelining Parham itself, the panel opin-
ion and the Lagoa Statement mischaracterize the fundamental
right that Parham recognizes. First off, the panel opinion and the
Lagoa Statement hyper-narrowly describe the asserted right the
Parents invoke here as the parents’ “right to treat one’s children
with transitioning medications subject to medically accepted stand-
ards.” 16 Eknes-Tucker II, 80 F.4th at 1224 (cleaned up).
16 The Lagoa Statement justifies this mischaracterization by deflecting blame
on the district court. See Lagoa St. at 11 (“[T]he panel opinion’s description of
the right claimed here came directly from the district court . . . .”). But in
context, the district court found that the Parents had a “fundamental right to USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 139 of 173
Then, the panel opinion imposes the 1868 Methodology on
our jurisprudence governing parents’ fundamental right to direct
the medical care of their children. See id. at 1220–21. It criticizes
the district-court order for failing to “feature any discussion of the
history of the use of [transitioning medications] or otherwise ex-
plain how that history informs the meaning of the Fourteenth Amend-
ment at the time it was ratified—July 9, 1868.” Id. at 1221 (emphasis
added); see also Lagoa St. at 25–26. Finding no “historical analysis
specifically tied to [transitioning medications],” the panel opinion
declares parents have no “fundamental right to treat one’s children
with transitioning medications subject to medically accepted stand-
ards.” Eknes-Tucker II, 80 F.4th at 1224 (cleaned up).
Two responses: first, a by-now old refrain—in Parham, the
Supreme Court already recognized the fundamental right at issue
treat their children with transitioning medications subject to medically ac-
cepted standards” only as the natural conclusion of its findings that transition-
ing medications satisfied Parham’s categorical requirements. Eknes-Tucker I,
603 F. Supp. 3d at 1144–45 (finding “the uncontradicted record evidence is
that at least twenty-two major medical associations in the United States en-
dorse transitioning medications as well-established, evidence-based treatments
for gender dysphoria in minors,” that Alabama “fail[ed] to show that transi-
tioning medications are experimental,” and that “parents ‘retain plenary au-
thority to seek [medical] care for their children, subject to a physician’s inde-
pendent examination and medical judgment’” (emphases added) (citations
omitted)). In other words, the district court did not establish a new framework
for carefully describing the right at issue; it simply applied Parham. But even
if the district court had narrowly described the right at issue, that wouldn’t
have fenced in the panel opinion. The point of appellate review is to ensure
that the lower court got the analysis right. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 140 of 173
(parents’ fundamental right to direct that their child receive well-
established, evidence-based, non-experimental medical treatment,
subject to medically accepted standards and a physician’s independ-
ent examination and medical judgment). So our recognition of
that right is not optional. For that reason, retreading history to
show that Parham’s right is, in fact, fundamental is neither neces-
sary nor appropriate.
And second, as I’ve explained, it’s impossible for any histori-
cal discussion of transitioning medications to have “inform[ed] the
meaning of the Fourteenth Amendment at the time it was ratified,”
id., because medicine hadn’t discovered transitioning medications
as of July 9, 1868, and didn’t do so until the twentieth century. The
same is, of course, true of all modern medicine. So under the panel
opinion’s framing of the asserted right—by specific medical treat-
ment sought—parents have only the fundamental right to direct
their child’s medical treatment with those treatments existing as of
July 9, 1868.
Obviously, the 1868 Methodology is wrong. The Framers of
the Fourteenth Amendment did not forever tie parents’ fundamen-
tal right to direct the medical care of their children to nineteenth-
century medical treatments. And we don’t assess a parent’s funda-
mental right to direct her child’s medical care treatment by treat-
ment. Cf. Vidal v. Elster, 602 U.S. 286, 311 (2024) (Barrett, J., concur-
ring in part) (“hunting for historical forebears on a restriction-by-
restriction basis is [not] the right way to analyze the constitutional
question”). USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 141 of 173
Rather, we view constitutional rights at a high enough level
of generality to ensure “the basic principles” that define our rights
“do not vary” in the face of “ever-advancing technology.” Moody v.
NetChoice, LLC, 144 S. Ct. 2383, 2403 (2024) (quoting Brown v. Ent.
Merchants Ass’n, 564 U.S. 786, 790 (2011)); see, e.g., Carpenter v. United
States, 585 U.S. 296, 305 (2018) (quoting Kyllo v. United States,533 U.S. 27, 34
(2001)). So if a medical treatment falls within the cate-
gory of well-established, evidence-based, non-experimental treat-
ment, subject to medically accepted standards and a physician’s in-
dependent examination and judgment, a parent has a fundamental
right to direct that her child receive it, regardless of when the treat-
ment was invented or discovered. Otherwise, the right is meaning-
less. 17
17 In arguing that the state enjoys police powers to outlaw whatever medical
treatments it wants that haven’t been shown to have “inform[ed] the meaning
of the Fourteenth Amendment at the time it was ratified—July 9, 1868,” the
Lagoa Statement proves our point. It relies on precedent that shows that a
state’s police power isn’t plenary when it implicates a fundamental right. See
Lagoa St. at 24–27. In Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty., 457
U.S. 596, 607–08 (1982), for instance, the Court recognized that States have a
compelling interest in “safeguarding the physical and psychological well-being
of a minor” but concluded that such an interest does not alone “justify a man-
datory . . . rule.” Rather, when state police powers clash with a fundamental
right, a “trial court can determine on a case-by-case basis whether” the state
action “is necessary to protect the welfare of a minor victim.” Id. at 608. In
other words, the state must establish a sufficient evidentiary record. Alabama
did not do that here, and the panel opinion did not find that the district court
clearly erred. The Lagoa Statement cannot engage in a do-over while denying
en banc review. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 142 of 173
The Lagoa Statement tries to run from the consequences of
the panel opinion’s plain language imposing the 1868 Methodol-
ogy. According to the Lagoa Statement’s retcon version of the
panel opinion, the panel opinion merely “notes the absence of any
historical support for the position reached by the district court” be-
cause whether parents have the fundamental right to direct that
their children receive medical treatments in existence after 1868
“was not before the panel.” Lagoa St. at 25 n.13.
I can understand why the Lagoa Statement would like to for-
get what the panel opinion expressly says—(1) that we must char-
acterize the right at issue as the parent’s right to direct the medical
treatment of their child with the specific treatment at issue— here,
transitioning medications, Eknes-Tucker II, 80 F.4th at 1220 (charac-
terizing and analyzing the right as the “right to treat one’s children
with transitioning medications subject to medically accepted stand-
ards” (cleaned up) (emphasis added)); (2) that the parent must point
to “historical support” in the form of “history of the use of” the par-
ticular medical treatment, id. at 1221, 1231 (emphasis added); and
(3) that, for a parent to have a fundamental right to direct the med-
ical care of their child with any particular medical treatment, “the
use of” the medical treatment must have “inform[ed] the meaning
of the Fourteenth Amendment at the time it was ratified—July 9,
1868,” id. at 1221, 1231 (emphases added).
But whether the Lagoa Statement owns up to it or not, the
panel opinion’s express statements and reasoning undeniably mean
that, to be covered by the parents’ fundamental right to direct their
child’s medical care, a medical treatment must have existed as of USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 143 of 173
1868. Even the Lagoa Statement offers no suggestion as to how a
medical treatment could have “inform[ed] the meaning of the
Fourteenth Amendment at the time it was ratified” if that treat-
ment did not yet exist then. The 1868 Methodology is so clearly
wrong that its own author now denies the words she wrote. Un-
fortunately, it can’t be undone that easily. Only this Court sitting
en banc (or the Supreme Court) can clean up the panel opinion’s
mess. But because we will not rehear this case en banc, the 1868
Methodology now governs all of us in the states of Florida, Geor-
gia, and Alabama—despite its author’s attempt to disavow it.
The Lagoa Statement also tethers the 1868 Methodology’s
required analysis to adults’ historical access to the treatment at is-
sue. See id. at 27. But that argument fails for the same reason the
panel opinion and the Lagoa Statement’s attempts to impose a
treatment-by-treatment framework fail: Parham has already estab-
lished that we don’t evaluate a parent’s fundamental right to direct
the medical care of their child treatment by treatment. Rather, un-
der Parham, we ask only whether a given treatment falls into the
category of well-established, evidence-based, non-experimental
medical treatments, subject to medically accepted standards and a
physician’s independent examination and medical judgment. And
if it does, that is the end of the matter because Parham recognizes
a parent’s fundamental right to direct such a treatment for their
child’s medical care.
Our “venerable and accepted tradition” of parental due-pro-
cess rights, including Parham’s carefully described right, ‘“is not to USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 144 of 173
be laid on the examining table and scrutinized for its conformity to
some abstract principle’ of ‘adjudication devised by this Court.’”
See United States v. Rahimi, 144 S. Ct. 1889, 1918 (2024) (Kavanaugh,
J., concurring) (quoting Rutan v. Republican Party of Ill., 497 U.S. 62,
95–96 (1990) (Scalia, J., dissenting)); cf. also Vidal, 602 U.S. at 324
(Barrett, J., concurring in part) (“[T]he Court’s laser-like focus on
the history of this single restriction misses the forest for the trees.”).
Because the 1868 Methodology defies this principle and contra-
venes precedent, we should have reheard this case en banc and
overruled it.
B. The use of transitioning medications is a well-established, evi-
dence-based, non-experimental medical treatment, subject to med-
ically accepted standards and a physician’s independent examina-
tion and medical judgment.
To put the district court’s decision in context, I note that in
the United States, roughly 300,000 thirteen-to-seventeen-year-olds
identify as transgender. 18 Some of those teenagers—like Plaintiff
Megan Poe’s daughter—experience severe mental-health effects—
including suicidal thoughts—associated with gender dysphoria. See
Eknes-Tucker I, 603 F. Supp. 3d at 1138 (“If untreated, gender dys-
phoria may cause or lead to anxiety, depression, eating disorders,
substance abuse, self-harm, and suicide.”); see also Am. Psychiatric
18 Williams Institute, UCLA School of Law, How Many Adults and Youth Identify
as Transgender in the United States? (June 2022), https://williamsinsti-
tute.law.ucla.edu/publications/trans-adults-united-states/
[https://perma.cc/3SJF-KGWB]. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 145 of 173
Ass’n, Diagnostic and Statistical Manual of Mental Disorders 454
(5th ed.) (same). And to put a sharper point on it, in 2022, 58%—
more than half—of transgender and non-binary youth in Alabama
reported seriously considering suicide in the year before, and about
one in five attempted suicide. 19
Some of these kids inevitably will succeed. That makes ef-
fective treatment of severe gender dysphoria critical.
Given these potentially devastating effects of severe gender
dysphoria, “[i]n some cases, physicians treat gender dysphoria in
minors with . . . puberty blockers” to delay the onset of puberty
while the minor socially transitions or decides whether to do so.
Eknes-Tucker I, 603 F. Supp. 3d at 1138. After between one and three
years on puberty blockers, minors whose gender dysphoria persists
may receive hormone therapies from their doctors to “masculinize
or feminize” their bodies. Id.
As I’ve recounted, the district court’s factual findings under-
score the widespread medical consensus that using transitioning
medications to treat severe gender dysphoria in minors is a well-
established, evidence-based treatment that follows medical stand-
ards. Yet the panel opinion and Lagoa Statement focus myopically
on the treatment’s potential (and undisputed) risks.
19 The Trevor Project, 2022 National Survey on LGBTQ Youth Mental Health by
State 3 (2022), https://www.thetrevorproject.org/wp-content/up-
loads/2022/12/The-Trevor-Project-2022-National-Survey-on-LGBTQ-
Youth-Mental-Health-by-State.pdf [https://perma.cc/2UWR-NY25]. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 146 of 173
To be sure, and as the district court recognized and the
WPATH Standards of Care acknowledge, transitioning medica-
tions—likely nearly every medical treatment—are not without
risks. But as the Supreme Court recognized, and as the district
court found, the fact that a treatment “‘involves risks does not au-
tomatically transfer the power’ to choose that medication ‘from
the parents to some agency or officer of the state.’” Eknes-Tucker I,
603 F. Supp. 3d at 1146 (quoting Parham, 442 U.S. at 603). Here,
after considering the record, the district court concluded that Ala-
bama “fail[ed] to produce evidence showing that transitioning
medications jeopardize the health and safety of minors suffering
from gender dysphoria.” Id. at 1145.
The Lagoa Statement now questions that factual finding and
others. See, e.g., Lagoa St. at 43 (“Alabama provided significant evi-
dence that the medications covered by the Act are dangerous and
ineffective.”). But the panel opinion never found even one of the
district court’s factual findings to be clearly erroneous. And given
that we have denied en banc rehearing, the Lagoa Statement can’t
do that now. That is improper.
Worse still, the Lagoa Statement relies on unvetted material
from outside the factual record to try to justify its newfound con-
clusion that the district court clearly erred. 20 Ours is an adversarial
20 For instance, the Lagoa Statement invokes a document called the WPATH
Files “report,” which it characterizes as a whistleblower’s leak of several inter-
nal documents impugning the credibility of the WPATH. Lagoa St. at 3–5,
30–31, 47–49. That document was prepared by an organization whose policy
platform includes “Escape the Woke Matrix,” which, among other things, USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 147 of 173
system of justice, so if the Lagoa Statement wishes to rely on these
materials, the parties must receive the opportunity to test them,
and the district court must determine their admissibility 21 and
denies climate change and refers to mask-wearers as “narcissists and psycho-
paths.” Environmental Progress, Escape the Woke Matrix (last visited Aug. 19,
2024), https://environmentalprogress.org/escape-the-woke-matrix
[https://perma.cc/84D8-89SA]. Environmental Progress does not perform
medical research. And a review of the purported WPATH communications
does not reveal why the Lagoa Statement asserts that they “impugn[] the cred-
ibility of the [WPATH].” Lagoa St. at 5. Nor does it suggest that WPATH
officials are “mischaracterizing and ignoring information about” transitioning
medications. Id. at 5. To the contrary, the WPATH Standards of Care ex-
pressly state that a “careful discussion” of “all potential risks and benefits” is a
“necessary step in the informed consent/assent process.” WPATH Standards,
supra n.9, at S61–63. And they also caution that the parent or “legal guardian
is integral to the informed consent process.” See id. But in any case, the bot-
tom line is that fact-finding is the district court’s job, not ours—and certainly
not in a statement respecting the denial of en banc rehearing. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 148 of 173
relevance. 22 And it must make factual findings about their credibil-
ity. None of those things occurred here.
22 Plus, the parties and the district court might find other extra-record evi-
dence more relevant and instructive. For instance, several studies have shown
that transitioning medications have, in fact, improved the lives of many teens
with gender dysphoria. More specifically, studies have repeatedly shown that
gender-affirming hormone therapy markedly decreases suicidality and depres-
sion among transgender minors who want such care. See, e.g., Diana M. Tor-
doff, et al., Mental Health Outcomes in Transgender and Nonbinary Youths Receiving
Gender-Affirming Care, 5 JAMA Network Open 1, 6 (2022) (60% decrease in de-
pression and 73% decrease in suicidality); Amy E. Green et al., Association of
Gender-Affirming Hormone Therapy With Depression, Thoughts of Suicide, and At-
tempted Suicide Among Transgender and Nonbinary Youth, 70 J. Adolescent Health
643, 647 (2022) (40% decrease in depression and suicidality); Jack L. Turban et
al., Pubertal Suppression for Transgender Youth and Risk of Suicidal Ideation, 145
Pediatrics 1, 5–6 (2020) (statistically significant decrease in suicidal ideation);
Luke Allen et al., Well-being and Suicidality Among Transgender Youth After Gen-
der-affirming Hormones, 7 Clinical Practice in Pediatric Psychology 302, 306
(2019) (75% decrease in suicidality). Similarly, 98%—nearly all—of the over-
18-year-old respondents to the 2022 U.S. Transgender Survey who were receiv-
ing transitioning medications at response time “reported that [the treatment]
made them either ‘a lot more satisfied’ (84%) or ‘a little more satisfied’ (14%)
with their life.” Sandy E. James et al., Early Insights: A Report of the 2022 U.S.
Transgender Survey, at 18 (Feb. 2024), https://transequality.org/sites/de-
fault/files/2024-
02/2022%20USTS%20Early%20Insights%20Report_FINAL.pdf
[https://perma.cc/ZHW2-GAK7]. The 2022 U.S. Transgender Survey, which
included 92,329 respondents (84,170 people 18 and older, and the remainder
16 or 17 years old), is the largest survey ever conducted of transgender indi-
viduals in the United States. Id. at 4, 6. It’s not clear whether the survey asked
16- and 17-year-old respondents about their satisfaction with hormone treat-
ment. But in any case, transitioning medications have been so beneficial for
transgender individuals that 47% of Survey respondents considered moving to
another state because their state’s government considered or passed legislation USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 149 of 173
Not only that, but the panel opinion and Lagoa Statement
effectively substitute their medical judgment for that of the major
medical organizations, not to mention the individual clinicians pre-
scribing transitioning medications. Medical professionals have ex-
tensive scientific and clinical training. Doctors attend four years of
medical school, three to seven years of residency, potential fellow-
ships or research positions, and beyond. And then they practice
medicine every day.
We, on the other hand, 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 rea-
sons, we weren’t good at math or science. Given our lack of med-
ical 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 fol-
low the governing standards of care. “The Constitution’s con-
tours” may not be “shaped by expert opinion,” Lagoa St. at 27, but
medical practice certainly is.
And to the extent that some “particular medical treatments
[may] reasonably [be] prohibited by the Government,” Abigail All.,
like the Act, and 5% had actually moved out of state because of such legisla-
tion. Id. at 23. All three states in this Circuit—Alabama, Florida, and Geor-
gia—are among the top ten states that respondents reported leaving. Id. So if
extra-record sources are considered, the parties must have the chance to pre-
sent whatever other sources they think relevant. And they should have the
chance to show why any new proposed sources should not be relied on. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 150 of 173
495 F.3d at 710, medical expertise plays an important role in our
scrutiny of whether the State exercised its powers reasonably. After
all, it “would certainly be arbitrary to exclude . . . dentists, osteo-
paths, nurses, chiropodists, optometrists, pharmacists, and mid-
wives” from the options of healthcare providers available to pa-
tients. England v. Louisiana State Bd. of Med. Examiners, 259 F.2d 626,
627(5th Cir. 1958) (per curiam). 23 At a minimum, courts must “hear[] the evidence” to scrutinize the State’s determination.Id.
We should not ignore expert consensus. And that’s especially so
here—where the panel opinion did not conclude the district court’s
findings were clearly erroneous. To do otherwise would threaten
fundamental parental rights and put the lives of their children at
risk.
Because parents have a fundamental right to direct that their
children receive well-established, evidence-based, non-experi-
mental medical treatment, subject to medically accepted standards
and a physician’s independent examination and medical judgment,
see Parham, 442 U.S. at 602, and transitioning medications meet
those criteria, the Parents have alleged a colorable substantive-due-
process claim.
USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 151 of 173
C. It is substantially likely that the Act does not survive strict scru-
tiny.
Having carefully identified the right at stake here as funda-
mental, we must apply strict scrutiny to the Act. That means the
Act must be “narrowly tailored” to achieve “a compelling state in-
terest.” Reno, 507 U.S. at 302. The Parents are substantially likely
to show that the Act cannot satisfy that standard.
As I’ve noted, the district court rejected each of the State’s
purported justifications for the Act. The district court found that
the State “fail[ed] to produce evidence showing that transitioning
medications jeopardize the health and safety of minors suffering
from gender dysphoria.” Eknes-Tucker I, 603 F. Supp. 3d at 1145.
And it determined that the State’s “proffered purposes—which
amount to speculative, future concerns about the health and safety
of unidentified children—are not genuinely compelling justifica-
tions based on the record evidence.” Id. at 1146.
But even if the State’s “speculative” justifications were suffi-
ciently “compelling,” the Act is not narrowly tailored to achieve
those state interests. A categorical ban on gender-affirming medi-
cal care for all minors is hopelessly overbroad. If the State is con-
cerned with minors’ health and safety or with the rigor of the ap-
proval process for treatment, it can mandate medical protocols in
line with the WPATH Standards of Care and other guidelines. And
if it fears that some healthcare professionals have committed mal-
practice by failing to obtain informed consent or otherwise comply
with the governing standards of care, the State can take tailored USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 152 of 173
enforcement action. Similarly, if a State is worried about minors’
ability to consent, see Lagoa St. at 45–46, it can require parental con-
sent or otherwise mandate informed-consent procedures like the
WPATH Standards of Care require.
In fact, the district court cited record evidence of other less
restrictive alternatives, including “allow[ing] minors to take transi-
tioning medications in exceptional circumstances on a case-by-case
basis.” Eknes-Tucker I, 603 F. Supp. 3d at 1146. And if we defer to
these findings of fact—as we must because the panel opinion did
not rule that they were clearly erroneous—the record supports the
district court’s conclusion that the Parents are substantially likely
to show that the Act fails strict scrutiny.
That does not mean that a state could never prohibit a par-
ticular medical treatment for minors. If a state sought to outlaw a
course of treatment that was not medically accepted or efficacious
and that posed serious risks without benefits, that prohibition
would likely clear even strict scrutiny. But that is not the case here.
To the contrary, the record shows that denying gender-affirming
medical care to transgender minors with severe gender dysphoria
is more likely to “jeopardize [their] health or safety,” id. at 1145, by
compromising their mental health and putting them at increased
risk of suicide.
In sum, when we properly frame the parents’ right at issue
and apply strict scrutiny, the Parents are substantially likely to suc-
ceed on their claim that the Act violates the Fourteenth Amend-
ment’s substantive-due-process guarantee. The panel opinion’s USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 153 of 173
contrary conclusion is not only legally wrong but dangerous for
minors with severe gender dysphoria and their parents—and for
every parent seeking modern medical care for their child in Ala-
bama, Florida, or Georgia.
III. The panel opinion wrongly concludes that the Minors
are not substantially likely to succeed on the merits of their
equal-protection claim.
The Fourteenth Amendment’s Equal Protection Clause
guarantees that no state shall “deny to any person within its juris-
diction the equal protection of the laws.” U.S. Const. amend. XIV,
§ 1. To evaluate whether a law violates the Equal Protection
Clause, “we apply different levels of scrutiny to different types of
classifications.” Clark v. Jeter, 486 U.S. 456, 461 (1988).
For classifications that disadvantage a “suspect class,” we ap-
ply strict scrutiny. Mass. Bd. of Retirement v. Murgia, 427 U.S. 307,
312 (1976). As I’ve explained in the due-process context, strict scru-
tiny asks whether the state law is narrowly tailored to further a
compelling state interest. The Supreme Court has applied strict
scrutiny to classifications based on race, color, and national origin.
See Students for Fair Admissions, Inc. v. Pres. & Fellows of Harvard Coll.,
600 U.S. 181, 308–09 (2023) (Gorsuch, J., concurring); Clark,486 U.S. at 461
. And the Court has explained that a suspect class is one
“saddled with such disabilities, or subjected to such a history of pur-
poseful unequal treatment, or relegated to such a position of polit-
ical powerlessness as to command extraordinary protection from USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 154 of 173
the majoritarian political process.” San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 28 (1973).
The second, or middle, tier of review is “intermediate scru-
tiny.” Clark, 486 U.S. at 461. To survive intermediate scrutiny, the
classification “must be substantially related to an important gov-
ernmental objective.” Id. Intermediate scrutiny applies to classifi-
cations based on sex or another quasi-suspect class. See City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440–42 (1985). Quasi-
suspect classes (1) “exhibit obvious, immutable, or distinguishing
characteristics that define them as a discrete group,” Lyng v. Castillo,
477 U.S. 635, 638 (1986); cf. City of Cleburne, 473 U.S. at 442–43; (2)
have historically endured discrimination, “antipathy,” or “preju-
dice,” City of Cleburne, 473 U.S. at 440; Lyng,477 U.S. at 638
; (3) are
a “politically powerless” minority, City of Cleburne, 473 U.S. at 445;
Lyng, 477 U.S. at 638; and (4) have a defining characteristic that “fre-
quently bears no relation to ability to perform or contribute to so-
ciety,” City of Cleburne, 473 U.S. at 440–41 (citation and internal quo-
tation marks omitted).
Third, if a classification qualifies as neither suspect nor quasi-
suspect under the Equal Protection Clause, we apply rational-basis
review. See Clark, 486 U.S. at 461. And again, that means the stat-
ute must simply be “rationally related to a legitimate governmental
purpose.” Id. Or as our Court has put it, “we must uphold [a law
under rational-basis review] if there is any conceivable basis that
could justify it.” Jones, 975 F.3d at 1034. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 155 of 173
As I explain below, the Act discriminates based on two quasi-
suspect classifications: sex and transgender status. So either classi-
fication requires us to apply intermediate scrutiny. When we do
that, the Act cannot survive.
But the panel opinion fails to recognize as quasi-suspect the
classifications the Act makes. Instead, it incorrectly applies ra-
tional-basis review to uphold the Act.
Section A shows that the Act relies on sex-based classifica-
tions. Section B explains that the Act also employs the quasi-sus-
pect classification of transgender status. Because the Act uses
quasi-suspect classifications, Section C then applies intermediate
scrutiny to the Act.
A. The panel opinion fails to recognize that the Act classifies based on
sex.
The Act prohibits the prescription or administration of tran-
sitioning medications “for the purpose of attempting to alter the
appearance of or affirm the minor’s perception of his or her gender
or sex, if that appearance or perception is inconsistent with the mi-
nor’s sex.” S.B. 184 § 4(a). In its operation, the Act classifies based
on sex in three ways. First, the Act restricts minors’ access to pu-
berty blockers and hormones based on the minors’ sex. Second,
the Act relies on gender stereotyping. And third, the Act discrimi-
nates against transgender individuals because they are transgender,
and that is necessarily discrimination because of sex.
First, the Act conditions minors’ access to puberty blockers
and hormone therapy on their sex. The upshot of the Act, then, is USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 156 of 173
that transgender boys and girls are forced to conform to Alabama’s
view of what birth-assigned girls and boys, respectively, should
look like at their ages.
For example, suppose a transgender girl (birth-assigned
boy), after consulting her parents and doctors, decides to take es-
trogen so her biological development reflects her gender identity.
Under the Act, she cannot access that medication. But a cisgender
girl (birth-assigned girl) with an estrogen deficiency who is pre-
scribed estrogen for the same reason—so her biological develop-
ment matches her gender identity—can. Both seek to alter their
appearance to match their gender identities, but only the
transgender girl is prohibited from using the medication because
the desired appearance “is inconsistent with the minor’s sex” as as-
signed at birth. S.B. 184 § 4(b). And a medical professional cannot
determine whether the Act prohibits such a treatment “without in-
quiring into a patient’s sex assigned at birth and comparing it to
their gender identity.” See Kadel v. Folwell, 100 F.4th 122, 147 (4th
Cir. 2024) (en banc).
In other words, but for the Minors’ birth-assigned sex, they
could access the same treatment to delay puberty or to ensure that
their appearances reflect their gender identities. See Brandt ex rel.
Brandt v. Rutledge, 47 F.4th 661, 669–70 (8th Cir. 2022). So “[s]ex
plays a necessary and undisguisable role” in the Act’s operation.
Bostock, 590 U.S. at 652. That is “textbook sex discrimination.”
Kadel, 100 F.4th at 153. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 157 of 173
The panel opinion seeks to avoid this straightforward con-
clusion by asserting that the Act “applies equally to both sexes.”
Eknes-Tucker II, 80 F.4th at 1228. But that the Act discriminates
against both transgender boys and transgender girls based on sex
does not change the fact that the Act discriminates based on sex.
In fact, the Supreme Court rejected a variety of that same
argument in Bostock. There, the Court considered whether, under
Title VII, an employer could lawfully “fire[] a woman . . . because
she is insufficiently feminine and also fire[] a man . . . for being in-
sufficiently masculine”—that is, whether the employer could law-
fully discriminate, “more or less equally,” against both men and
women under Title VII. Bostock, 590 U.S. at 659. The Court had
no trouble rejecting that defense. See id. As the Court explained,
“in both cases the employer fires an individual in part because of
sex.” Id. So “[i]nstead of avoiding Title VII exposure, this employer
doubles it.” Id.
True, Bostock dealt with Title VII, not the Fourteenth
Amendment. But Bostock concluded that discriminating against
both men and women is no defense to Title VII because Title VII
prohibits discrimination against “individual[s],” rather than
“against women [or men] as a class.” See id. at 658–59. So too with
the Fourteenth Amendment, which guarantees that “[n]o State
shall . . . deny to any person within its jurisdiction the equal protec-
tion of the laws.” U.S. Const. amend. XIV, § 1 (emphasis added).
Without citation to any authority, the panel opinion also
contends that the Act does not discriminate based on sex because USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 158 of 173
it “refers to sex only because the medical procedures that it regu-
lates . . . are themselves sex-based.” Eknes-Tucker II, 80 F.4th at
1228. This attempt to avoid the Act’s sex-based classifications fails.
First, the Act refers to sex apart from the medical procedures when
it restricts use of puberty blockers and hormone therapy for only
those minors trying to change their appearance in a way “incon-
sistent with their sex.” S.B. 184 § 4(b). But second, even if we ac-
cept the panel opinion’s incorrect premise, the mere fact that a law
refers to sex-based medical procedures does not somehow insulate
it from equal-protection scrutiny. As the Act shows, a law can both
“refer[] to sex only because the medical procedures that it regulates
. . . are themselves sex-based,” Eknes-Tucker II, 80 F.4th at 1228, and
still discriminate on the basis of sex. Our constitutional protections
are not so easily circumvented.
Similarly, the panel opinion invokes Dobbs’s pronouncement
that “the regulation of a medical procedure that only one sex can
undergo does not trigger heightened constitutional scrutiny unless
the regulation is a mere pretext designed to effect an invidious dis-
crimination against members of one sex or the other.” Id. at 1229
(quoting Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 236
(2022)) (cleaned up). This argument fails.
Unlike abortion, treatment with transitioning medications is
not “a medical procedure that only one sex can undergo,” id. Both
boys and girls have sex hormones. And as they have for decades for
medical conditions other than gender dysphoria, doctors can pre-
scribe puberty blockers and hormones for both boys and girls. In USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 159 of 173
fact, both male and female bodies produce and use both testos-
terone and estrogen, though in different quantities. 24 That the hor-
mones doctors prescribe for birth-assigned boys and girls may not
be precisely the same does not somehow make the administration
of puberty blockers and hormone therapy “a medical procedure
that only one sex can undergo,” id.
Second, the Act employs sex-based classifications through its
use of gender stereotypes. Gender stereotypes “presume that men
and women’s appearance and behavior will be determined by their
sex.” Brumby, 663 F.3d at 1320. The Act prohibits the use of tran-
sitioning medications only when they are prescribed or adminis-
tered to “affirm the minor’s perception of his or her gender or sex,
if that appearance . . . is inconsistent with the minor’s sex,” S.B. 184 §
4(a) (emphasis added)—or to put it more bluntly, if that appearance
deviates from Alabama’s view of what the minor’s appearance
should be, based on the minor’s birth-assigned sex. We’ve held that
“the Equal Protection Clause does not tolerate gender stereo-
types.” Brumby, 663 F.3d at 1320. Yet that’s exactly what the Act’s
classifications do: they force transgender minors to present as Ala-
bama’s view of what boys and girls, respectively, should be and look
like. See Kadel, 100 F.4th at 153 (“conditioning access to [gender-
USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 160 of 173
affirming care] based on a patient’s sex assigned at birth stems from
gender stereotypes about how men or women should present”).
The Lagoa Statement’s attempts to pin Alabama’s discrimi-
nation on “physical differences” falls short. Lagoa St. at 37. In fact,
the very case it cites, United States v. Virginia, 518 U.S. 515, 533
(1996), makes plain its error. There, the Virginia Military Institute
argued it could exclude women because the “psychological and so-
ciological differences” between men and women prevented
women from succeeding in its strenuous curriculum. Id. at 549.
Virginia proffered that those biological differences were “real” and
“not stereotypes.” Id. But the Court rejected that argument. Alt-
hough Virginia identified some physical differences, the Court ex-
plained, its “generalizations” from those differences were stereo-
types about “the way most women are” or “what is appropriate for
most women.” Id. at 550 (emphasis omitted).
The Lagoa Statement contains the same flaw. Sure, § 4(a)
mentions “physical differences” between boys and girls. But as I’ve
noted, it recognizes those differences only because they conform
to Alabama’s view of “what is appropriate” for boys and girls, id. 25
USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 161 of 173
Third, the Act classifies based on transgender status and gen-
der non-conformity, which the Supreme Court and we have found
indirectly discriminates based on sex. See Bostock, 590 U.S. at 660–
61; Brumby, 663 F.3d at 1316. The panel opinion seeks to sidestep
Bostock and Brumby by cabining them to the Title VII and employ-
ment-discrimination contexts. Those attempts are unavailing.
Again, the Act prohibits the use of transitioning medications
only if prescribed to “affirm the minor’s perception of his or her
gender or sex, if that appearance . . . is inconsistent with the mi-
nor’s sex.” S.B. 184 § 4(a). In other words, the Act proscribes tran-
sitioning medications for transgender minors only. See Eknes-Tucker
I, 603 F. Supp. 3d at 1138.
As the Supreme Court explained in Bostock, “it is impossible
to discriminate against a person for being . . . transgender without
discriminating against that individual based on sex.” 590 U.S. at 660.
Because “transgender status [is] inextricably bound up with sex,”
id. at 660–61, discrimination “against . . . transgender [individuals]
necessarily and intentionally applies sex-based rules,” id. at 667.
Bostock’s rule governs here: because the Act classifies based on
transgender status, it classifies based on sex, so it must clear inter-
mediate scrutiny.
statutory distinction in presumed parentage. Id. In contrast, the Lagoa State-
ment identifies a biological difference but does not explain how or why that
difference “substantially relate[s]” to Alabama’s “important governmental in-
terest.” Id. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 162 of 173
The Lagoa Statement aims to circumvent this precedent by
conclusorily stating that “[b]ecause the language of the Equal Pro-
tection Clause does not resemble the language of Title VII, Bos-
tock’s reasoning does not apply here.” Lagoa St. at 36; see also Eknes-
Tucker II, 80 F.4th at 1229. But the Lagoa Statement fails to grapple
with the Supreme Court’s explanation for why Title VII’s text de-
mands Bostock’s answer: that Title VII’s text prohibits discrimina-
tion against “any individual.” See Bostock, 590 U.S. at 658–59. In
comparison, the Fourteenth Amendment prohibits discrimination
against “any person.” U.S. Const. amend. XIV, § 1. So there’s no
meaningful difference from the text that motivated the Supreme
Court’s decision in Bostock. The Lagoa Statement has no answer
for this.
Rather, the Lagoa Statement blindly pulls out-of-context
quotations from Justice Gorsuch’s concurrence in Students for Fair
Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181,
308 (2023). But in fact, Justice Gorsuch’s concurrence supports my
point. Justice Gorsuch distinguished Title VII and the Equal Pro-
tection Clause because they apply “different degrees of judicial
scrutiny” and cover “different kinds of classifications.” Id. at 308.
But he did not suggest that they have different definitions of dis-
crimination. Nor could he. Both forbid “treating someone differ-
ently because of ” a protected characteristic. Id. at 220 (Roberts,
C.J., majority) (defining discrimination under the Equal Protection
Clause); see Bostock, 590 U.S. at 658 (“treat[ing] a person worse be-
cause of sex . . . discriminates against that person in violation of
Title VII”). USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 163 of 173
So whether an employee is fired for being transgender, or a
teenager is denied healthcare for being transgender, “[s]ex plays a
necessary and undisguisable role in the decision.” Bostock, 590 U.S.
at 652. Indeed, it makes little sense to conclude that discrimination
against transgender persons “necessarily and intentionally applies
sex-based rules,” id. at 667, in the Title VII context but has no rela-
tion to sex in the Equal Protection Clause context. See Kadel, 100
F.4th at 180–81 (Richardson, J., dissenting) (for both Title VII and
the Equal Protection Clause, “Bostock tells us that to discriminate
on the basis of [transgender status] is necessarily to discriminate
‘because of ’ sex”).
After all, the Court did not say that “transgender status [is]
inextricably bound up with sex” in the workplace alone. See Bos-
tock, 590 U.S. at 660–61. Nor did it say that it is “impossible to
discriminate” based on transgender status in the workplace “with-
out discriminating . . . based on sex,” id. at 660, but possible and
acceptable to do so outside the workplace. No doubt Bostock’s
holding was limited to Title VII and employment discrimination,
but its reasoning was not. And the “portions of [an] opinion[’s ra-
tionale that are] necessary to [its] result” are just as binding as the
holding itself. See Powell, 643 F.3d at 1305.
Plus, Bostock is not the only precedent on point here.
Brumby—which concerned the Fourteenth Amendment’s Equal
Protection Clause and which we decided before Bostock—also con-
trols this analysis. In Brumby, we held that “discriminating against
[a transgender person] on the basis of his or her gender non- USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 164 of 173
conformity constitutes sex-based discrimination under the Equal
Protection Clause.” 663 F.3d at 1316. In so concluding, we found
a “congruence between discriminating against transgender . . . in-
dividuals and discrimination on the basis of gender-based behav-
ioral norms.” Id. And we held that discrimination based on gender
non-conformity or transgender status is “subject to heightened
scrutiny.” Id. at 1319. Brumby’s logic applies with equal force in this
context.
The panel opinion tries to avoid this fact by cabining
Brumby’s reading of the Fourteenth Amendment to “the context of
employment discrimination.” See Eknes-Tucker II, 80 F. 4th at 1229.
But Brumby suggests no such limitation. And in any case, constitu-
tional protections are not context-specific. For example, it would
be absurd to hold that, because Mississippi University, 458 U.S. at
733, declared that the Equal Protection Clause protects men from
sex discrimination in state-operated nursing schools, the Equal Pro-
tection Clause provides men with no protection against sex dis-
crimination in other state programs. But the panel opinion does
just that: it asserts that discrimination against transgender persons
is unconstitutional sex discrimination only in the workplace. By
extension, then, we would afford protection to an employee facing
the loss of a job but spurn such protection for a teen facing the loss
of medical care that could mean the difference between life and
death. Constitutional rights are not so easily disposable.
Finally, the Lagoa Statement perpetuates the fiction that the
Act discriminates on the basis of “purpose,” not sex or transgender USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 165 of 173
identity. Lagoa St. at 34–35. But in the context of this case, “dis-
criminating on the basis of [purpose] is discriminating on the basis
of gender identity and sex.” Kadel, 100 F.4th at 141. That’s because
gender dysphoria is “a condition that is bound up in transgender
identity,” and so too is treatment for that condition. Id. at 142. And
the Act prohibits puberty blockers and hormone therapy for only
the “purpose” of treating gender dysphoria. See S.B. 184 § 4(a). We
cannot suborn sex and gender-identity discrimination by calling it
by a different name.
In short, Bostock and Brumby are binding precedents that
show why the Minors have a substantial likelihood of success on
the merits of their equal-protection claim. 26
B. The panel opinion fails to recognize that the Act classifies based
on transgender status, a quasi-suspect class in its own right for
purposes of equal-protection analysis.
The previous section explains why the Act discriminates
based on sex. But the panel opinion also fails to recognize that
transgender status is itself a quasi-suspect classification. See Eknes-
Tucker II, 80 F.4th at 1230. And the Act’s discrimination on the basis USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 166 of 173
of transgender status is an independent ground for applying inter-
mediate scrutiny.
To be sure, a majority of this Court previously expressed
“grave ‘doubt’ that transgender persons constitute a quasi-suspect
class,” Adams, 57 F.4th at 803 n.5, but this dictum is not a binding
holding. And even if it were, most respectfully, it is incorrect, and
we should correct it in en banc proceedings. In fact, as my col-
league Judge Jill Pryor has shown, transgender individuals meet all
four criteria for quasi-suspect-class status, triggering intermediate
scrutiny. Id. at 848–50 ( J. Pryor, J., dissenting). I summarize why
below.
First, transgender status is immutable, or, as we have defined
it, “consistent[], insistent[], and persistent[].” See id. at 807. And
those that take puberty blockers or gender-affirming hormones
necessarily have a “consistent[], insistent[], and persistent[]”
transgender identity. See id. That some individuals who experience
some form of gender incongruence ultimately embrace their birth-
assigned gender or detransition does not alter this reality because
those individuals are not “transgender” as our precedent (and med-
ical science) defines the term. See id.
Transgender status is also “distinguishing.” In fact, it’s a spe-
cific basis on which the Act distinguishes. The Act prohibits the use
of puberty blockers and hormone therapy only “for the purpose of
attempting to alter the appearance of or affirm the minor’s percep-
tion of his or her gender or sex, if that appearance or perception is
inconsistent with the minor’s sex,”—in other words, only when the USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 167 of 173
minor is transgender. See S.B. 184 § 4(a). Contrary to the Lagoa
Statement’s assertions, the fact that a “wide spectrum” of non-bi-
nary individuals may identify as “transgender,” Lagoa St. at 40–41,
does not mean that it is not a “distinguishing” label. For instance,
a diverse group of individuals may identify with a particular race,
religion, or national origin, but precedent firmly establishes that
race, religion, and national origin are suspect classes. See Clark, 486
U.S. at 461; City of New Orleans v. Dukes,427 U.S. 297, 303
(1976).
The same is true of transgender identity and quasi-suspect-class
status. And in any event, even if the umbrella term “transgender”
encompasses a “wide spectrum” of diverse people, we can still dis-
tinguish those who are “transgender” (those who consistently, per-
sistently, and insistently identify with their non-birth-assigned sex,
see Adams, 57 F.4th at 807) from those who are not (those who
don’t).
Second, as the Fourth Circuit has observed, “there is no
doubt that transgender individuals historically have been subjected
to discrimination on the basis of their gender identity, including
high rates of violence and discrimination in education, employ-
ment, housing, and healthcare access.” Grimm v. Gloucester Cnty.
Sch. Bd., 972 F.3d 586, 611 (4th Cir. 2020) (cleaned up). And that
prejudice and discrimination persist today. For instance, 30% of
respondents to the 2022 U.S. Transgender Survey reported being
“verbally harassed” in the last year because of their gender identity
or expression, 9% reported being denied equal treatment or ser-
vice, and 3% reported being physically attacked. And as relevant
here, 80% of adult respondents and 60% of 16- or 17-year-old USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 168 of 173
respondents who were out or perceived as transgender in school
experienced bullying, harassment, physical attacks, or other forms
of “mistreatment or negative experience.” 27
Third, transgender persons are no doubt a minority lacking
in political power. “Even when we take into account the small pro-
portion of the population transgender individuals comprise, they
are underrepresented in political and judicial office nationwide.”
Adams, 57 F.4th at 850 ( J. Pryor, J., dissenting). 28 The very passage
27 See James et al., supra n.22, at 21–22. These numbers are roughly comparable
to the 2015 Survey. See Sandy E. James et al., Nat’l Ctr. for Transgender
Equal., The Report of the 2015 U.S. Transgender Survey, at 5, 13 (Dec. 2016),
https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-
Dec17.pdf [https://perma.cc/5CL3-RG9E]. And while broad-scale quantita-
tive data from prior periods may not exist, anecdotal evidence of discrimina-
tion against transgender persons dates back to the Founding era and beyond.
See, e.g., Genny Beemyn, Transgender History in the United States, in Trans Bod-
ies, Trans Selves (Laura Erickson-Schroth ed., Oxford Univ. Press 2022).
28 More than 1.3 million transgender adults—roughly 0.5% of the adult popu-
lation—live in the United States. See Williams Institute, supra n.18. Yet in
2022, only 45 elected officials—across all political levels in the country, includ-
ing the local, state, and federal levels—identified as transgender. LGBTQ+
Victory Institute, Out for America 2022: A Census of LGBTQ Elected Officials Na-
tionwide (Aug. 2022), https://victoryinstitute.org/out-for-america-2022/
[https://perma.cc/4WQM-D6W3]. And there is not (nor has there ever been)
a single openly transgender judge on the federal bench. Lambda Legal, In a
Record-Breaking Year for Judicial Nominations, the Biden Administration Fell Short
on LGBTQ+ Representation (Feb. 1, 2022), https://lambdalegal.org/publica-
tion/us_20230412_biden-admin-still-fell-short-on-lgbtq-representation-in-fed-
eral-judicial-nominations/ [https://perma.cc/AFG9-7NBR]. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 169 of 173
of the Act, along with similar legislation in other states 29 and gov-
ernmental action disadvantaging transgender people in other con-
texts (i.e., executive directives barring transgender individuals from
military service), evidence this reality. And the fact that a minority
of states and the current Presidential administration have acted to
support transgender individuals, see Lagoa St. at 41–42, cannot ef-
face this widespread and invidious discrimination. 30
Fourth and finally, transgender status bears no “relation to
ability to perform or contribute to society.” Grimm, 972 F.3d at 612
(cleaned up). Transgender individuals have achieved success across
industries, contributed to the American economy, served in the U.S.
military, built families, and beyond. Indeed, “[s]eventeen of our
USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 170 of 173
foremost medical, mental health, and public health organizations
agree that being transgender ‘implies no impairment in judgment,
stability, reliability, or general social or vocational capabilities.’” Id.
(quoting Am. Psychiatric Ass’n, Position Statement on Discrimination
Against Transgender and Gender Variant Individuals 1 (2012)).
So all four factors show that transgender persons are a quasi-
suspect class, and intermediate scrutiny applies. See Adams, 57 F.4th
at 848–50 ( J. Pryor, J., dissenting); Grimm, 972 F.3d at 613; cf. Karno-
ski v. Trump, 926 F.3d 1180, 1200 (9th Cir. 2019) (“[T]he district court
reasonably applied the factors” when determining that transgender
persons are a “quasi-suspect class.”). Although the Supreme Court
has not recently recognized a new quasi-suspect class, see Lagoa St.
at 39, its precedent does not preclude it or lower courts from doing
so when warranted. To that end, the panel opinion’s summary dis-
missal of this argument was error.
C. It is substantially likely that the Act fails intermediate scrutiny.
Because intermediate scrutiny applies, we ask whether the
Act serves “important governmental objectives” and employs
means “substantially related to the achievement of those objec-
tives.” Miss. Univ., 458 U.S. at 724 (quotations omitted). That justi-
fication must be “exceedingly persuasive,” id., and cannot be “hy-
pothesized,” Virginia, 518 U.S. at 533.
Alabama invokes the interest of protecting children’s safety.
And of course, I agree that “[i]t is indisputable ‘that a State’s inter-
est in safeguarding the physical and psychological well-being of a
minor is compelling.’” Otto v. City of Boca Raton, 981 F.3d 854, 868 USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 171 of 173
(11th Cir. 2020) (quoting New York v. Ferber, 458 U.S. 747, 756–57
(1982)). But when we apply the district court’s factual findings—as
we must—we cannot conclude that the Act is “substantially re-
lated” to that interest.
Just as it is substantially likely that the Act cannot survive
strict scrutiny, it is substantially likely that the Act fails intermediate
scrutiny as well. Again, the district court found that gender-affirm-
ing medical care is not “experimental”—to the contrary, it is
widely-endorsed, “well-established, evidence-based treatment[].”
Eknes-Tucker I, 603 F. Supp. 3d at 1145. So Alabama’s interest in
“safeguarding the physical and psychological well-being,” Otto, 981
F.3d at 868, of its minors does not itself permit Alabama to outlaw
transitioning medications on the basis of sex or transgender status.
In fact, across-the-board prohibition of access to transitioning med-
ications itself compromises the “physical and psychological well-
being” of minors with severe gender dysphoria—putting them at
greater risk of suicidality and depression. 31
What’s more, the Act permits the use of the very puberty
blockers and hormones it outlaws for treatment of gender dyspho-
ria in Minors, for treatment of minors with other conditions. The
continued availability of this medication to cisgender minors un-
dercuts the State’s purported safety rationale and renders the Act
over- and under-inclusive. When we account for the State’s as-
serted rationale, the Act is over-inclusive, as it prohibits gender-
USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 172 of 173
affirming hormone therapy for all transgender minors regardless
of their medical circumstances. And it is under-inclusive because it
does not altogether bar the medications. Rather, it concedes that
puberty blockers and hormone therapy are safe and medically ad-
visable in other circumstances. Simply put, the Act’s ends and
means are not substantially related, and the Minors are substan-
tially likely to show that it fails intermediate scrutiny.
Because the Act unlawfully discriminates against the Minors
based on their sex and transgender status, it must satisfy a more
exacting standard than rational-basis review. The panel opinion’s
contrary conclusion essentially rubber-stamps the Act’s denial of
healthcare to transgender minors despite the State’s failure to meet
its burden. The consequences will be profound.
IV.
The panel opinion jettisons precedent to wrongly conclude
that the Parents and Minors are not substantially likely to show that
Alabama’s law violates two different constitutional rights: parents’
fundamental right to direct their children’s medical treatment and
all individuals’ right to equal protection regardless of birth-as-
signed sex or gender conformity. These legal and constitutional er-
rors are more than academic. They sanction the denial of well-
established, medically accepted treatment and leave parents help-
less to prevent life-threatening harm. Neither precedent nor the
record supports that result. Worst of all, it will needlessly cause
parents and their children in the state of Alabama to suffer griev-
ously. USCA11 Case: 22-11707 Document: 152-3 Date Filed: 08/28/2024 Page: 173 of 173
I respectfully dissent from the denial of rehearing en banc. Footnotes
1
See, e.g., Appendix A (KathyGrace Duncan), Appendix B (Carol Frietas), Ap-
pendix C (Corinna Cohn). One of the dissents argues that we should disregard
Wright’s testimony and the testimonies of Duncan, Frietas, and Cohn because
all of them were at least eighteen years old when they started to medically
transition and because “their ‘treatment’ did not follow WPATH Standards of
Care.” Rosenbaum Dis. Op. at 10–11, 10 n.8. But that is not a reason to dis-
regard their testimony, which demonstrates that those who are eighteen or
older may fail to understand the dangerous, long-term effects cross-sex hor-
mones and puberty blockers can have. If anything, these testimonies show
why a legislative body may choose to restrict the use of these drugs by minors.2
The Cass Review, Independent review of gender identity services for children and
young people (2024), https://cass.independent-review.uk/wp-content/up-
loads/2024/04/CassReview_Final.pdf [https://perma.cc/9F73-D7BW]
(hereinafter, “The Cass Review”).3
Clinical Policy: Puberty suppressing hormones (PSH) for children and young people
who have gender incongruence/gender dypsphoria [1927], Nat’l Health Serv., Eng.
(Mar. 12, 2024), https://www.england.nhs.uk/wp-content/up-
loads/2024/03/clinical-commissioning-policy-gender-affirming-hormones-
v2.pdf [https://perma.cc/383H-LBVX] (hereinafter, “NHS Clinical Policy”).4
Mia Hughes, The WPATH Files, Environmental Progress (2024),
https://static1.squarespace.com/static/56a45d683b0be33df885def6/t/65ea1
c1ea42ff5250c88a2f5/1709841455308/WPATH+Report+and+Files%28N%2
9.pdf [https://perma.cc/5HLY-TSUR] (hereinafter, “The WPATH Files”).5
Supraphysiologic means of or pertaining to an amount “greater than nor-
mally present in the body.” See Supraphysiologic, Merriam-Webster,
https://www.merriam-webster.com/medical/supraphysiological
[https://perma.cc/QW8K-882J].6
Section 4 also forbids performing surgeries that sterilize, performing surger-
ies that “artificially construct tissue with the appearance of genitalia that differs
from the individual’s sex,” and removing “any healthy or non-diseased body
part or tissue, except for a male circumcision.” Act § 4(a)(4)–(6). Plaintiffs
originally challenged these portions of the Act also, but represented at the be-
ginning of the preliminary-injunction hearing below that they were no longer
seeking a preliminary injunction with respect to them. See Eknes-Tucker I, 603
F. Supp. 3d at 1139 n.5.7
These disorders include: (1)“[a]n individual born with external biological sex
characteristics that are irresolvably ambiguous, including an individual born
with 46 XX chromosomes with virilization, 46 XY chromosomes with under
virilization, or having both ovarian and testicular tissue”; and (2) “[a]n individ-
ual whom a physician has otherwise diagnosed with a disorder of sexual de-
velopment, in which the physician has determined through genetic or9
As I discuss below, even if we were to accept the framing offered by either
Judge Jordan or Judge Rosenbaum, both still fail to “engage[] in a careful anal-
ysis of the history of the right at issue.” Dobbs, 597 U.S. at 238.10
In Muñoz, the respondent invoked the “fundamental right of marriage,” but
the Court pushed further, concluding that the respondent actually “claim[ed]
something distinct: the right to reside with her noncitizen spouse in the United
States.” 144 S. Ct. at 1822 (emphasis omitted).11
Judge Rosenbaum states that this analysis “elementally misunderstands the
nature of a fundamental right,” as “[c]onstitutional protections are not so sus-
ceptible to state-law abrogation.” Rosenbaum Dis. Op. at 24; see also Jordan
Dis. Op. at 23–25. In the abstract, she is of course correct that a state law
cannot trump an individual right afforded by the federal constitution. But
here, we are tasked with the antecedent question: whether the Parent Plain-
tiffs are substantially likely to show that they have such a right in the first place.
To do so, we must consult text, history, and tradition, as informed by binding
precedent, to determine whether the Due Process Clause affords such a right
and strips Alabama of the authority to enforce the Act. See United States v.
Comstock, 560 U.S. 126, 159 (2010) (Thomas, J., dissenting) (“The States . . . are
free to exercise all powers that the Constitution does not withhold from
them.”). The point we made in the panel opinion, Eknes-Tucker II, 80 F.4th at
1223, is that Parham does not recognize the right claimed by the Parent Plain-
tiffs, and thus does not stand for the proposition that Alabama lacks the au-
thority to enforce the Act in light of parental dissent.12
This Court’s decisions similarly provide no support for the understanding of
the Due Process Clause shared by Judges Jordan and Rosenbaum, the district13
A word about the so-called “1868 Methodology.” See Rosenbaum Dis. Op.
at 1–2, 32–37. Judge Rosenbaum mischaracterizes the panel opinion as con-
cluding that parents have the fundamental right to direct that their children
receive “medical treatments in existence as of 1868.” Id. at 1. That issue, of
course, was not before the panel. And the panel opinion merely notes the
absence of any historical support for the position reached by the district
court—a deficiency not cured on appeal.14
Indeed, elsewhere in its order, the district court recognized that “transition-
ing medications” come with “[k]nown risks,” including “loss of fertility and
sexual function.” Eknes-Tucker I, 603 F. Supp. 3d at 1139; see also id. at 1145
(recognizing that the “Defendants offer some evidence that transitioning med-
ications pose certain risks”).15
For example, studies suggest that significant health risks may stem from the
use of these medications, including sterility, sexual dysfunction, lower bone
density, high blood pressure, breast cancer, liver disease, cardiovascular dis-
ease, and weight gain.16
NHS has also placed severe restrictions on “gender affirming hormones,”
allowing for their use only after a child has turned sixteen and meets several
other criteria. See Prescribing of Gender Affirming Hormones (masculinising or fem-
inising hormones) as part of the Children and Young People’s Gender Service, Nat’l
Health Serv., Eng., (Mar. 21, 2024), https://www.england.nhs.uk/wp-con-
tent/uploads/2024/03/clinical-commissioning-policy-prescribing-of-gender-
affirming-hormones.pdf [https://perma.cc/Q2TX-5KWP].17
As the Fifth Circuit went on to explain, one of the doctors who helped draft
a previous edition of WPATH’s Standards of Care testified that the Standards
of Care “is not a politically neutral document.” Gibson, 920 F.3d at 222 (em-
phasis omitted) (quoting Kosilek v. Spencer, 774 F.3d 63, 78 (1st Cir. 2014) (en
banc)). Instead, “WPATH aspires to be both a scientific organization and an
advocacy group for the transgendered.” Id.(quoting Kosilek,774 F.3d at 78
).
18
As Justice Scalia explained, this line from Chief Justice Marshall has long
been misread to justify interpreting the Constitution in a way that is un-
moored from its text and history. See Antonin Scalia, Essay: Assorted Canards
of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 594–96 (1989); see
also Ogden, 25 U.S. (12 Wheat.) at 332 (Marshall, C.J., dissenting) (The Consti-
tution’s words “are to be understood in that sense in which they are generally
used by those for whom the instrument was intended [and] its provisions are
neither to be restricted into insignificance, nor extended to objects not com-
prehended in them, nor contemplated by its framers.”).19
Judge Rosenbaum also states that people are not truly “transgender” if they
“experience some form of gender incongruence” but “ultimately embrace
their birth-assigned gender or detransition.” Rosenbaum Dis. Op. at 59. But20
The following appendices are reproductions of written declarations submit-
ted by Alabama.21
For example, the Lagoa Statement cherry-picks quotations from the WPATH
Files “report” that don’t accurately characterize the working group’s conver-
sation as a whole. See Lagoa St. at 4–5, 47–49. And beyond that, it’s not even
clear that the “report” includes or accurately summarizes the complete source
material, see FED. R. EVID. 106, 1006, or satisfies any of the hearsay exceptions
that secure the reliability of out-of-court statements, id. 801–03. If the Lagoa
Statement offers the “report” to impeach WPATH’s “genuine[ness],” Lagoa
St. at 48, the declarants normally must have a chance to explain or deny the
statements, FED. R. EVID. 613. Of course, trial courts are in the best position
to consider these evidentiary questions in the first instance—a point that the
Lagoa Statement’s uncritical use of out-of-court statements aptly shows.23
All Fifth Circuit decisions issued by the close of business on September 30,
1981, are binding precedent in this Court. Bonner v. City of Prichard, 661 F.2d
1206, 1207(11th Cir. 1981) (en banc).
24
Rex A. Hess, Estrogen in the Adult Male Reproductive Tract: A Review, 1:52 Re-
productive Biology & Endocrinology 1, 1 (2003) (“Testosterone and estrogen
are no longer considered male only and female only hormones. Both hor-
mones are important in both sexes.”).25
This case is a far cry from those where the Court has recognized real, phys-
ical differences that survive intermediate scrutiny. In Tuan Anh Nguyen v.
I.N.S., 533 U.S. 53, 68 (2001), for example, under intermediate scrutiny, the
Court upheld a statutory scheme that automatically granted citizenship to a
child born out of wedlock if the mother was the parental citizen but that re-
quired proof of paternity if the father was the parental citizen. The Court
found that the real difference—that a mother gives birth to her child, and that
paternity is not so simply established at the time of birth—justified the26
Applying Bostock and Brumby does not mean that prohibiting a particular
medical treatment based on sex is automatically unconstitutional. As I’ve
mentioned, if a state prohibited a course of treatment for transgender minors
that was not medically accepted and that posed serious risks without benefits,
that prohibition would likely survive even strict scrutiny. Of course, the Act
does not impose that type of a prohibition. And even if we had such a law
before us here, we still should have opted to correct the panel opinion’s peri-
lous equal-protection analysis.29
Since Alabama passed the Act, more than twenty other states have enacted
legislation restricting the provision of gender-affirming hormone therapy and
other procedures for transgender minors. See Arkansas S.B. 199 (2023); Florida
S.B. 254 (2023); Georgia S.B. 140 (2023); Idaho H.B. 71 (2023); Indiana S.B. 480
(2023); Iowa S.F. 538 (2023); Kentucky S.B. 150 (2023); Louisiana H.B. 648
(2023); Mississippi H.B. 1125 (2023); Missouri S.B. 49 (2023); Montana S.B. 99
(2023); Nebraska L.B. 574 (2023); North Carolina H.B. 808 (2023); North Da-
kota H.B. 1254 (2023); Ohio H.B. 68 (2024); Oklahoma S.B. 613 (2023); South
Carolina H.B. 4624 (2024); South Dakota H.B. 1080 (2023); Tennessee S.B. 1
(2023); Texas S.B. 14 (2023); Utah S.B. 16 (2023); West Virginia H.B. 2007
(2023); Wyoming S.F. 0099 (2024).30
Nor is it at all relevant which law firms have “supported the Plaintiffs.” La-
goa St. at 41. It is not our role to determine which law firms are “major” or
“powerful.” And it is not the case that a group with (pro bono) legal represen-
tation is not otherwise disenfranchised. To the contrary, many of the preemi-
nent legal organizations in this country (e.g., the NAACP and ACLU) have
dedicated themselves to representing minorities lacking in political power.31
See supra n.22.