Last year, when Alabama criminalized “gender-affirming” medical interventions in children, much of America cheered. It’s only common sense. Gender confusion in children is often transitory.
Moreover, these “medical treatments”—which aren’t approved by the FDA for preventing normal maturation—can have deleterious physical effects, such as infertility and weakened bone development. Lest you doubt the potential for harm, listen to the anguished stories of de-transitioners returning to their biological sex, some of whom are now suing their transition doctors for the irreversible damage caused to their bodies.
The Alabama law outlawing medical gender affirmation is straightforward, stating (in part) “no person shall engage in or cause” the prescription or administration of puberty-blocking medication or cross-sex hormone treatment 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.” The term “sex” is defined objectively as “the biological state of being female or male … and is genetically encoded into a person at the moment of conception, and it cannot be changed.” Biology 101.
Of course, the usual activists gnashed their teeth, and the inevitable lawsuit was soon filed seeking to have the law declared unconstitutional. The plaintiffs won an injunction against the law at the trial court level, the federal judge ruling that parents have a fundamental due process right to “treat their children with transitioning medications.”
The judge also decided that the law unconstitutionally instituted sex-based discrimination on Alabama’s transgender children in violation of the Equal Protection Clause. In other words, the judge found precepts of gender ideology—a relatively new and still radical social theory—lurking silently in the liberty protections afforded by the U.S. Constitution that our great charter’s authors never imagined.
Judicial Rationality Prevails
Alabama appealed, and thankfully, rationality and judicial restraint prevailed. A three-judge panel of the 11th Circuit Court of Appeals voted unanimously to reinstate the law pending trial (pdf).
First, the judges essentially found that the trial judge engaged in judicial activism, ruling that the court, “grounded its ruling in an unprecedented interpretation of parents’ fundamental right to make decisions concerning the ‘upbringing,’ and ‘care, custody, and control’ of one’s children.”
What was the basis for that interpretation? Apparently, the trial judge’s own imagination. “Neither the record nor any binding authority” establishes a “right to treat [one’s] children with transitioning medications,” the three appellate judges agreed. That being so, Alabama needed only to demonstrate that there’s a “rational basis” for the law—which protecting children from being rendered infertile (among other possible physical harms) surely is.
Second, the Appeals Court rejected the argument that the law engaged in sex-based discrimination. Rather, it “is best understood as a law that targets specific medical interventions for minors, not one that classifies on the basis of any suspect characteristic [like sex] under the Equal Protection Clause.” Yes, sex is mentioned in the law. But “the statute does not establish an unequal regime for males and females.” Instead, it “establishes a rule that applies equally to both sexes” restricting “the prescription and administration of puberty blockers and cross-sex hormone treatment for purposes of treating discordance between biological sex and sense of gender identity …”
This is both a rational and nuanced approach. As one of the concurring opinions explained: “An injunction against the enforcement of Alabama’s law under equal-protection principles will not equalize burdens or benefits between girls and boys. It will not require the government to treat boys and girls the same. It will merely force Alabama to either ban puberty blockers and hormones for all purposes”—which would be unwarranted since these substances are used to treat objectively diagnosable pathologies impacting healthy puberty—”or allow them for all purposes.”
Finally, the court ruled that the question of regulating the treatment of children with gender dysphoria is a matter for a state’s political leadership rather than the courts:
“This case revolves around an issue that is surely of the utmost importance to all of the parties involved: the safety and wellbeing of the children of Alabama. But it is complicated by the fact that there is a strong disagreement between the parties over what is best for those children. Absent a constitutional mandate to the contrary, these types of issues are quintessentially the sort that our system of government reserves to legislative, not judicial, action.”
So, Alabama’s law can again be enforced, which is to be celebrated. Protecting children from physical harm is a legitimate function of the state.
But this is just the beginning of these legal controversies. A district judge in Georgia just temporarily invalidated part of that state’s law protecting children with gender dysphoria from “gender-affirming” medical treatments, as a similar law was so enjoined in Arkansas. Other courts have validated these sorts of laws. More litigation will surely follow, ad infinitim.
At the very least, the “gender-affirming” controversy is going to get hotter before it’s finally resolved. As European countries are backing forcefully away from the “gender-affirming” model of care for children, powerful constituencies in the United States are declaring full speed ahead. For example, the Biden administration is trying to impose gender ideology as the required standard of treating such children throughout the country.
Just as bad, blue states such as California are passing transgender “sanctuary” laws that would allow a child who was illegally brought to the state to be kept from a custodial parent who refuses to affirm the child’s declared gender identification. Meanwhile, other states are following in Alabama’s path. The yelling is growing quite intense.
This much seems sure: Unless gender ideology is rejected out of hand—unlikely, given the zeal of its fervent activists—the cultural storms surrounding the care of dysphoric children will not abate anytime soon. And whichever side wins a particular political battle, the other side will immediately take it to court.
In the end—as with so many of our societal controversies—the legal parameters of what constitutes acceptable treatment of these unfortunate gender-confused children will be another social hot potato decided by the nine justices of the Supreme Court. I’ll bet they can hardly wait.