Uh oh Snaggle Tooth! Looks like your Georgia happy dance is going to be your shortest lived "win" yet.
A federal appeals court says Alabama can enforce a ban on puberty blockers and hormones for transgender children
Alabama Attorney General Steve Marshall called the ruling a “significant victory for our country, for children, and for common sense.”
“The Eleventh Circuit reinforced that the State has the authority to safeguard the physical and psychological well-being of minors,” Marshall said.
In lifting the injunction, the judges wrote that states have “a compelling interest in protecting children from drugs, particularly those for which there is uncertainty regarding benefits, recent surges in use, and irreversible effects.”
Alabama can enforce ban on puberty blockers and hormones for transgender children, court says
By implication this undoes the nonsensical Georgia injunction granted over the weekend and it should unseat the two injunctions in Florida.
A smart move for Arkansas would be to take this decision and the two Sixth Circuit decisions over to the 8th Circuit and vacate the ridiculous permanent injunction there too.
Apologies for the long post, but I figured it will be helpful for whenever Tony responds to the 59-page decision, and maybe when this goes to SCOTUS.
The 11th Circuit's basic argument goes that the parents of transgender kids do not have the right to "direct the upbringing ... of their children" in
all things (the opinion says education and custody are the main areas where the case law is
clearly pro-parent). It seems to me, based on the precedents cited, that parents have a very strong right of refusal against the government mandating they
do something (parents cannot be forced to make their children go to public school over private school; parents cannot be forced to make their children go to school past the age of 13, as it conflicts with Amish religious practice, etc.). But the rights get weaker if parents want to do something the government
doesn't want them to do (you cannot let your child work just because you think it would be good for them since the state has outlawed child labor).
Another cited case is that children deserve a third-party lookover/approval before a parent has the right to institutionalize them. If all child institutionalization were to be banned, the parents couldn't rightly say their rights have been infringed because they
wanted that for their child. They could not demand that the institutions stay open, even if they have doctors who agree. On the other side, the government also could not force the parents to
send their kid to an institution. It's a positive/negative rights divide, in broad strokes. I can say no to certain interventions the government might try to mandate, I cannot say "gibsmedat specific prescription." And the government can say no to what I want to do with my kid, but they cannot say "gibsmedat kid, he's mine."
Moneyshot from the opinion:
... those decisions applying the fundamental parental right in the context of medical decision-making do not establish that parents have a derivative fundamental right to obtain a particular medical treatment for their children as long as a critical mass of medical professionals approve. Moreover, all of the cases dealing with the fundamental parental right reflect the common thread that states properly may limit the authority of parents where “it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.”
And we also have a reference to the opioid epidemic as clear medical malpractice that can go unnoticed if care is left entirely to the public and the medical system.
The lower court also tried to use
Bostock/Glenn v. Brumby to say discriminating against transgender people is unconstitutional. But those cases, of course, were about whether men can wear skirts if women can; it depended on ignoring whether a person was transgender at all. Any man who wanted to wear the "female" uniform could do so and not be punished for it. It looks at the material reality - if I say "hey, I'm transgender," I am basically telling you that I am going to not conform to my outward gender stereotypes, and I cannot be fired just because of that. I am not telling you an innate fact about myself that you have to respect, exactly, you just can't make me dress a certain way.
The 11th Circuit's opinion is thus convinced by Alabama's argument that it's an
age restriction, not one based on
sex, which means it does not run afoul of the Equal Protection Clause and the right for men and women to be treated equally under the law. The opinion says trying to make transgender individuals "a quasi-suspect class" (meaning a class of people whose treatment could trigger "strict judicial scrutiny," such as we have for sex or race) is not going to happen. They are not addressed in the Equal Protection Clause at all.
I guess the plaintiffs are trying to argue that they shouldn't have to "conform" to the sex stereotypes of having certain levels of testosterone or having breasts or whatever. What's the difference between being able to wear a skirt and being able to cut my penis off? But the court isn't having that.
And with respect to the Minor Plaintiffs’ equal protection claim, the district court determined that the law classifies on the basis of sex, when in reality the law simply reflects real, biological differences between males and females and equally restricts the use of puberty blockers and cross-sex hormone treatment for minors of both sexes.
God, absolutely bodied. Seems clear this is also how they would see the sports/bathroom issues.
The concurrent opinion:
Unlike the employer’s decision in Glenn, 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. ... To be sure, the statute’s classification reflects the government’s recognition that, without medical intervention, a healthy child will mature in accord with his or her biological sex. But the recognition of biological reality is “not a stereotype.”
The children
will grow up unmaimed. Go yell at a wall.
