Paul Eknes-Tucker v. Governor of the State of Alabama
Citation80 F.4th 1205
Date Filed2023-08-21
Docket22-11707
Cited13 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
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,
Plaintiļ¬s-Appellees,
versus
GOVERNOR, OF THE STATE OF ALABAMA,
ATTORNEY GENERAL, STATE OF ALABAMA,
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2 Opinion of the Court 22-11707
DISTRICT ATTORNEY, FOR MONTGOMERY COUNTY,
DISTRICT ATTORNEY, FOR CULLMAN COUNTY,
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 LAGOA, BRASHER, Circuit Judges, and BOULEE,* District
Judge.
LAGOA, Circuit Judge:
This appeal centers around section 4(a)(1)ā(3) of Alabamaās
Vulnerable Child Compassion and Protection Act (the āActā). Sec-
tion 4(a)(1)ā(3) of the Act states that āno person shall engage in or
causeā the prescription or administration of puberty blocking med-
ication or cross-sex hormone treatment to a minor āfor the purpose
of attempting to alter the appearance of or affirm the minorās per-
ception of his or her gender or sex, if that appearance or perception
is inconsistent with the minorās sex.ā Thus, section 4(a)(1)ā(3)
* Honorable J. P. Boulee, United States District Judge for the Northern District
of Georgia, sitting by designation.
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22-11707 Opinion of the Court 3
makes it a crime in the State of Alabama to take part in providing
puberty blockers or cross-sex hormone treatment to a minor for
purposes of treating a discordance between the minorās biological
sex and sense of gender identity.
Shortly after the Act was signed into law, a group of
transgender minors, their parents, and other concerned individuals
challenged the Actās constitutionality, claiming that it violates the
Due Process Clause and the Equal Protection Clause of the Four-
teenth Amendment. As part of that lawsuit, the district court is-
sued a preliminary injunction enjoining Alabama from enforcing
section 4(a)(1)ā(3) of the Act pending trial, having determined that
the plaintiffs are substantially likely to succeed on both of the afore-
mentioned claims. Specifically, as to the due process claim, the dis-
trict court held that there is a constitutional right to ātreat [oneās]
children with transitioning medications subject to medically ac-
cepted standardsā and that the restrictions of section 4(a)(1)ā(3)
likely impermissibly infringe upon that constitutional right. As to
the equal protection claim, the district court held that section
4(a)(1)ā(3) classifies on the basis of sex by classifying on the basis of
gender nonconformity and likely amounts to unlawful discrimina-
tion under the intermediate scrutiny standard applicable to sex-
based classifications.
On review, we hold that the district court abused its discre-
tion in issuing this preliminary injunction because it applied the
wrong standard of scrutiny. The plaintiffs have not presented any
authority that supports the existence of a constitutional right to
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4 Opinion of the Court 22-11707
ātreat [oneās] children with transitioning medications subject to
medically accepted standards.ā Nor have they shown that section
4(a)(1)ā(3) classifies on the basis of sex or any other protected char-
acteristic. Accordingly, section 4(a)(1)ā(3) is subject only to ra-
tional basis review. Because the district court erred by reviewing
the statute under a heightened standard of scrutiny, its determina-
tion that the plaintiffs have established a substantial likelihood of
success on the merits cannot stand. We therefore vacate the pre-
liminary injunction.
I. BACKGROUND
The Act was passed by the Alabama Legislature on April 7,
2022, and signed into law by Governor Kay Ivey the following day,
thereby set to become effective on May 8, 2022.
A. The Text of the Act
The Act contains eleven sections. For the sake of complete-
ness, each section is described below.
Section 1 establishes the title of the Act.
Section 2 sets forth the following findings by the Alabama
Legislature:
(1) The sex of a person is the biological state of
being female or male, based on sex organs, chromo-
somes, and endogenous hormone proļ¬les, and is ge-
netically encoded into a person at the moment of
conception, and it cannot be changed.
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(2) Some individuals, including minors, may expe-
rience discordance between their sex and their inter-
nal sense of identity, and individuals who experience
severe psychological distress as a result of this discord-
ance may be diagnosed with gender dysphoria.
(3) The cause of the individualās impression of dis-
cordance between sex and identity is unknown, and
the diagnosis is based exclusively on the individualās
self-report of feelings and beliefs.
(4) This internal sense of discordance is not per-
manent or ļ¬xed, but to the contrary, numerous stud-
ies have shown that a substantial majority of children
who experience discordance between their sex and
identity will outgrow the discordance once they go
through puberty and will eventually have an identity
that aligns with their sex.
(5) As a result, taking a wait-and-see approach to
children who reveal signs of gender nonconformity
results in a large majority of those children resolving
to an identity congruent with their sex by late adoles-
cence.
(6) Some in the medical community are aggres-
sively pushing for interventions on minors that medi-
cally alter the childās hormonal balance and remove
healthy external and internal sex organs when the
child expresses a desire to appear as a sex diļ¬erent
from his or her own.
(7) This course of treatment for minors com-
monly begins with encouraging and assisting the
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6 Opinion of the Court 22-11707
child to socially transition to dressing and presenting
as the opposite sex. In the case of prepubertal chil-
dren, as puberty begins, doctors then administer
long-acting GnRH agonist (puberty blockers) that
suppress the pubertal development of the child. This
use of puberty blockers for gender nonconforming
children is experimental and not FDA-approved.
(8) After puberty blockade, the child is later ad-
ministered ācross-sexā hormonal treatments that in-
duce the development of secondary sex characteris-
tics of the other sex, such as causing the development
of breasts and wider hips in male children taking es-
trogen and greater muscle mass, bone density, body
hair, and a deeper voice in female children taking tes-
tosterone. Some children are administered these hor-
mones independent of any prior pubertal blockade.
(9) The ļ¬nal phase of treatment is for the individ-
ual to undergo cosmetic and other surgical proce-
dures, often to create an appearance similar to that of
the opposite sex. These surgical procedures may in-
clude a mastectomy to remove a female adolescentās
breasts and ābottom surgeryā that removes a minorās
health reproductive organs and creates an artiļ¬cial
form aiming to approximate the appearance of the
genitals of the opposite sex.
(10) For minors who are placed on puberty block-
ers that inhibit their bodies from experiencing the
natural process of sexual development, the over-
whelming majority will continue down a path toward
cross-sex hormones and cosmetic surgery.
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(11) This unproven, poorly studied series of inter-
ventions results in numerous harmful eļ¬ects for mi-
nors, as well as risks of eļ¬ects simply unknown due
to the new and experimental nature of these interven-
tions.
(12) Among the known harms from puberty block-
ers is diminished bone density; the full eļ¬ect of pu-
berty blockers on brain development and cognition
are yet unknown, though reason for concern is now
present. There is no research on the long-term risks
to minors of persistent exposure to puberty blockers.
With the administration of cross-sex hormones
comes increased risks of cardiovascular disease,
thromboembolic stroke, asthma, COPD, and cancer.
(13) Puberty blockers prevent gonadal maturation
and thus render patients taking these drugs infertile.
Introducing cross-sex hormones to children with im-
mature gonads as a direct result of pubertal blockade
is expected to cause irreversible sterility. Sterilization
is also permanent for those who undergo surgery to
remove reproductive organs, and such persons are
likely to suļ¬er through a lifetime of complications
from the surgery, infections, and other diļ¬culties re-
quiring yet more medical intervention.
(14) Several studies demonstrate that hormonal
and surgical interventions often do not resolve the un-
derlying psychological issues aļ¬ecting the individual.
For example, individuals who undergo cross-sex cos-
metic surgical procedures have been found to suļ¬er
from elevated mortality rates higher than the general
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8 Opinion of the Court 22-11707
population. They experience signiļ¬cantly higher
rates of substance abuse, depression, and psychiatric
hospitalizations.
(15) Minors, and often their parents, are unable to
comprehend and fully appreciate the risk and life im-
plications, including permanent sterility, that result
from the use of puberty blockers, cross-sex hor-
mones, and surgical procedures.
(16) For these reasons, the decision to pursue a
course of hormonal and surgical interventions to ad-
dress a discordance between the individualās sex and
sense of identity should not be presented to or deter-
mined for minors who are incapable of comprehend-
ing the negative implications and life-course diļ¬cul-
ties attending to these interventions.
Section 3 provides definitions for the terms āminor,ā āper-
son,ā and āsex.ā Section 3(1) incorporates the definition of āminorā
established in section 43-8-1 of the Alabama Code, first enacted in
1975, which is ā[a] person who is under 19 years of age.ā Ala. Code
Ā§ 43-8-1(18). Section 3(2) defines the term āpersonā to include
ā[a]ny individualā; ā[a]ny agent, employee, official, or contractor of
any legal entityā; and ā[a]ny agent, employee, official, or contractor
of a school district or the state or any of its political subdivisions or
agencies.ā Section 3(3) defines the term āsexā to mean ā[t]he
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22-11707 Opinion of the Court 9
biological state of being male or female, based on the individualās
sex organs, chromosomes, and endogenous hormone profiles.ā
Section 4, in broad terms, makes it a felony to perform cer-
tain medical practices on minors for certain purposes, and reads as
follows:
(a) Except as provided in subsection (b), no person
shall engage in or cause any of the following practices
to be performed upon a minor if the practice is per-
formed for the purpose of attempting to alter the ap-
pearance of or affirm the minorās perception of his or
her gender or sex, if that appearance or perception is
inconsistent with the minorās sex as defined in this
act:
(1) Prescribing or administering puberty blocking
medication to stop or delay normal puberty.
(2) Prescribing or administering supraphysio-
logic[1] doses of testosterone or other androgens to
females.
(3) Prescribing or administering supraphysiologic
doses of estrogen to males.
(4) Performing surgeries that sterilize, including
castration, vasectomy, hysterectomy, oophorec-
tomy, orchiectomy, and penectomy.
1 Supraphysiologic means of or pertaining to an amount āgreater than nor-
mally present in the body.ā See Supraphysiologic, Merriam-Webster, https://
www.merriam-webster.com/medical/supraphysiological.
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10 Opinion of the Court 22-11707
(5) Performing surgeries that artificially construct
tissue with the appearance of genitalia that differs
from the individualās sex, including metoidio-
plasty, phalloplasty, and vaginoplasty.
(6) Removing any healthy or non-diseased body
part or tissue, except for a male circumcision.
(b) Subsection (a) does not apply to a procedure
undertaken to treat a minor born with a medically
verifiable disorder of sex development, including ei-
ther of the following:
(1) An individual born with external biological sex
characteristics that are irresolvably ambiguous, in-
cluding an individual born with 46 XX chromo-
somes with virilization, 46 XY chromosomes with
under virilization, or having both ovarian and tes-
ticular tissue.
(2) An individual whom a physician has otherwise
diagnosed with a disorder of sexual development,
in which the physician has determined through
genetic or 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.
(c) A violation of this section is a Class C felony.
Section 5, in broad terms, prohibits certain school
employees from withholding certain information about mi-
nor students from their parents and from encouraging or
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22-11707 Opinion of the Court 11
coercing minor students to do the same. The section reads
as follows:
No nurse, counselor, teacher, principal, or other ad-
ministrative oļ¬cial at a public or private school at-
tended by a minor shall do either of the following:
(1) Encourage or coerce a minor to withhold from
the minorās parent or legal guardian the fact that the
minorās perception of his or her gender or sex is in-
consistent with the minorās sex.
(2) Withhold from a minorās parent or legal guard-
ian information related to a minorās perception that
his or her gender or sex is inconsistent with his or her
sex.
Section 6 clariļ¬es that, except as provided for in section 4,
nothing in the Act shall be construed as ālimiting or preventingā
certain mental health professionals from ārendering the services
for which they are qualiļ¬ed by training or experience involving the
application of recognized principles, methods, and procedures of
the science and professional of psychology and counseling.ā
Section 7 similarly clariļ¬es that ā[n]othing in this section
shall be construed to establish a new or separate standard of care
for hospitals or physicians and their patients or otherwise modify,
amend, or supersedeā certain other laws of the State of Alabama.
Section 8 is a severability clause. It provides that, ā[i]f any
part, section, or subsection of [the Act] or the application thereof
to any person or circumstance is held invalid, the invalidity shall
not aļ¬ect parts, sections, subsections, or applications of this act
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12 Opinion of the Court 22-11707
that can be given eļ¬ect without the invalid part, section, subsec-
tion, or application.ā
Section 9 clariļ¬es that the Act ādoes not aļ¬ect a right or
duty aļ¬orded to a licensed pharmacist by state law.ā
Section 10 clariļ¬es that, ā[a]lthough this bill would have as
its purpose or eļ¬ect the requirement of a new or increased ex-
penditure of local funds,ā it is āexcluded from further require-
ments and application under Amendment 621, as amended by
Amendment 890 . . . because [it] deļ¬nes a new crime or amends the
deļ¬nition of an existing crime.ā
Section 11, the ļ¬nal section, establishes that the Act āshall
become eļ¬ective 30 days following its passage and approval by the
Governor, or its otherwise becoming law.ā
B. Procedural History
On April 19, 2022, a group of plaintiļ¬s initiated this chal-
lenge to the Act seeking declaratory and injunctive relief. The
group consisted of transgender minors (the āMinor Plaintiļ¬sā), the
parents of those transgender minors (the āParent Plaintiļ¬sā),
healthcare providers who regularly treat transgender youth (the
āProvider Plaintiļ¬sā), and Reverend Paul A. Eknes-Tucker, the Sen-
ior Pastor at Pilgrim Church in Birmingham, Alabama, who
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frequently counsels parents of transgender children (collectively,
āPlaintiļ¬sā).2
The original complaint generally alleged that: (1) the Act vi-
olates the Due Process Clause of the Fourteenth Amendment by
depriving the Parent Plaintiļ¬s of their right to direct the upbring-
ing of their children (Count I); (2) the Act violates the Equal Pro-
tection Clause of the Fourteenth Amendment by discriminating
against the Minor Plaintiļ¬s on the bases of sex and transgender sta-
tus (Count II); (3) the Act is preempted by section 1557 of the Af-
fordable Care Act (Count III); (4) the Act violates the Free Speech
Clause of the First Amendment (Count IV); and (5) the Act is void
for vagueness under the Due Process Clause of the Fourteenth
Amendment (Count V). That complaint named the Attorney Gen-
eral of Alabama and several state oļ¬cials (collectively, āAlabamaā)
as defendants. 3
Two days later, Plaintiļ¬s ļ¬led a motion for preliminary in-
junction, seeking a ruling preventing the enforcement of the Act in
advance of its May 8, 2022, eļ¬ective date. 4 In light of that request,
2 Reverend Eknes-Tucker is not included as a plaintiff in the operative plead-
ing, the Second Amended Complaint, nor does he take part in this appeal.
3 The original complaint also included Governor Ivey as a defendant, but the
parties subsequently moved to dismiss her from the action on May 3, 2022,
pursuant to a joint understanding that she and her office would be bound by
any forthcoming injunctive relief. The district court granted that request.
4 The motion is styled as a āmotion for a temporary restraining order and/or
preliminary injunction.ā However, because Alabama received notice of the
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14 Opinion of the Court 22-11707
the district court expedited the brieļ¬ng schedule and scheduled a
hearing for the ļ¬rst week of May.
On April 29, 2022, the United States ļ¬led a motion to inter-
vene, as well as its own motion for preliminary injunction similarly
seeking to prevent enforcement of the Act. Shortly thereafter, ļ¬f-
teen states moved for leave to ļ¬le an amicus brief in support of
Alabama. That was followed by a group of at least twenty-two
professional medical and mental health organizations jointly mov-
ing for leave to ļ¬le an amicus brief in support of Plaintiļ¬s. The
district court ultimately granted the motion to intervene and the
motions to ļ¬le amicus briefs, giving the United States permission
to participate in the preliminary injunction hearing and taking the
amicus briefs under advisement.
The three-day hearing on Plaintiļ¬sā motion for preliminary
injunction began on May 4, 2022. On that ļ¬rst day, the district
court discussed the motion for intervention and heard opening ar-
guments from the parties. At that time, Plaintiļ¬s represented that
they were no longer challenging the portions of section 4 that ban
surgical intervention, i.e., subsections (a)(4)ā(6), and were instead
focusing on the portions of section 4 that ban puberty blockers and
cross-sex hormone treatment, i.e. subsections (a)(1)ā(3). The fol-
lowing day, the parties commenced their presentation of the evi-
dence.
request for injunctive relief, the motion subsequently was addressed only as a
motion for preliminary injunction.
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Plaintiļ¬s ļ¬rst tendered Dr. Linda Hawkins and Dr. Morissa
Ladinsky as experts in the treatment of gender dysphoria in mi-
nors. Dr. Hawkins is the director of the Gender and Sexuality De-
velopment Clinic at the Childrenās Hospital of Philadelphia. She
has specialized in treating LGBT youth for roughly twenty-two
years and worked with over 4,000 transgender youth. During her
testimony, Dr. Hawkins deļ¬ned āgender identityā as āthe internal
authentic hardwired sense of oneās self as male or female.ā She
further testiļ¬ed that a blanket prohibition on puberty blockers and
hormone treatment would be ādevastatingā for transgender youth,
comparing it to āremoving somebodyās cancer treatment and just
expecting them to be okay.ā
Dr. Ladinsky is an associate professor of pediatrics at the
Heersink School of Medicine at the University of Alabama at Bir-
mingham (āUABā) and a board-certiļ¬ed pediatrician at the aļ¬li-
ated hospital. Dr. Ladinsky opened a gender clinic at UAB in the
fall of 2015 and, at the time of her testimony, had worked with an
estimated 400 to 450 minors suļ¬ering from gender dysphoria. Dr.
Ladinsky discussed the guidelines on the treatment of gender dys-
phoria in youth that the UAB gender clinic follows and noted that
those guidelines are endorsed by the American Academy of Pedi-
atrics. She also noted that consent forms must be signed by all legal
parents and guardians before a minorās hormonal therapy can
begin. According to Dr. Ladinsky, puberty blockers pose some risks
but, overall, are safe and reversible. She described the risks posed
by puberty blockers and cross-sex hormones, related to fertility and
sexual function, as āsmall side eļ¬ect risks.ā Dr. Ladinsky also
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16 Opinion of the Court 22-11707
testiļ¬ed that the youngest minor for which she prescribed puberty
blockers was an eleven-year-old female and that about 85 percent
of her patients who have taken puberty blockers have gone on to
take cross-sex hormones. In her opinion, it is āuncommonā for a
minor patient taking puberty blockers to stop experiencing gender
dysphoria and begin identifying with their biological sex.
Plaintiļ¬s then called Megan Poe (one of the Parent Plain-
tiļ¬s), Dr. Rachel Koe (one of the Provider Plaintiļ¬s), and Reverend
Eknes-Tucker to testify about their personal knowledge and expe-
rience regarding gender dysphoria.
Poe is the mother of a biological male who identiļ¬es as a
female. When asked how her child presents as a female, Poe testi-
ļ¬ed that her child āis very over the top girly,ā āloves makeup and
hair,ā and ā[is] always worried about her clothes.ā The child began
showing signs of a female gender identity at the age of two, accord-
ing to Poe, by wanting girl toys and girl clothes. The child started
puberty blockers in sixth grade and then started hormone therapy
at the age of fourteen. Poe reported that her child now is āso
happyā and āthrivingā and has not experienced any side eļ¬ects
from the treatment. She insisted that her child is ādeļ¬nitely not
[experiencing] a phaseā and is ānever going to grow out of this.ā
Poe also said she was afraid that her child would commit suicide if
the treatments were no longer available.
Dr. Koe is a pediatrician in southeast Alabama. Dr. Koe re-
ported that she treats transgender adolescents but has never treated
a patient with gender dysphoria who later desisted or expressed
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22-11707 Opinion of the Court 17
regret about receiving these types of treatments. She also testiļ¬ed
that, if the Act takes eļ¬ect, it will leave her āstuck in a place where
[she doesnāt] know how to proceedā nor how to provide care for
patients with gender dysphoria.
Reverend Eknes-Tucker is the Senior Pastor at Pilgrim
Church in Birmingham, Alabama, and has been a pastor for 45
years. Reverend Eknes-Tucker testiļ¬ed that there have been
transgender individuals in every congregation that he has served
and that he has given advice to parents of transgender children on
numerous occasions. He clariļ¬ed that he has not given medical
advice but that he has helped connect parents of transgender chil-
dren with doctors who provide gender-aļ¬rming care.
In addition to this live testimony, Plaintiļ¬s produced as evi-
dence various organizational medical guidelines, sworn declara-
tions, research articles, and other documents.
Next, the United States, as an intervenor on behalf of Plain-
tiļ¬s, tendered Dr. Armand H. Antommaria as an expert in bioethics
and treatment protocols for adolescents suļ¬ering from gender dys-
phoria. Dr. Antommaria is the chair of pediatric ethics and an at-
tending physician at Cincinnati Childrenās Hospital Medical Center.
During his testimony, Dr. Antommaria addressed the dearth of ran-
domized controlled trials for the treatment of minors with puberty
blockers and cross-sex hormone therapy and expressed his concern
that such trials āwould be unethical,ā given the lack of conļ¬dence
that the control group and the experimental group would receive
equally eļ¬cacious treatment. He also expressed concern that any
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18 Opinion of the Court 22-11707
such trials āwould have substantial methodological limitations,ā
given the need to recruit enough participants and conduct a blind
study. When asked for his opinion regarding the ability of parents
and adolescents to adequately understand and give informed con-
sent to the provision of puberty blockers and hormone therapy, Dr.
Antommaria answered that those treatments are ācomparable to
other decisions that parents and their children make in pediatric
healthcare on a frequent basis.ā He further testiļ¬ed that there are
no equally eļ¬ective alternative medical treatments for adolescents
with gender dysphoria and that there is not an ethical basis for dis-
tinguishing between minors experiencing precocious puberty 5 and
minors experiencing gender dysphoria with respect to the provi-
sion of puberty blockers and hormone treatment.
Along with Dr. Antommariaās testimony, the United States
presented, among other things, various organizationsā medical pol-
icy statements and guidelines, some research and news articles, and
Dr. Antommariaās declaration and curriculum vitae. For example,
the United States presented the Standards of Care of the World
Professional Association for Transgender Health (āWPATHā),
which endorse the use of puberty blockers and cross-sex hormone
treatment for minors when certain criteria are met. The United
States also oļ¬ered statements by the Alabama Psychological Asso-
ciation and the American Academy of Pediatrics supporting the use
of puberty blockers and cross-sex hormone treatment for minors
and opposing the Act. The full record reveals that at least twenty-
5 Precocious puberty is the premature initiation of puberty.
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22-11707 Opinion of the Court 19
two professional medical and mental health organizations support
the use of such medications.
On cross-examination, Dr. Antommaria acknowledged that
ā[t]here are risks involved in the treatment course for the treatment
of gender dysphoria.ā He went on to note that, for puberty block-
ers and cross-sex hormones generally, there is a risk of impaired
fertility, and that, for estrogen therapy, there is a risk of change in
sexual function. When asked whether he agrees that more re-
search is needed to study the eļ¬cacy and the costs and beneļ¬ts of
gender-aļ¬rming care, Dr. Antommaria responded that āmore re-
search is needed in all areas of health care.ā
Alabama, for its part, ļ¬rst tendered Dr. James Cantor. Dr.
Cantor is a clinical psychologist and neuroscientist who was called
as an expert on psychology, human sexuality, research methodol-
ogy, and the state of research on gender dysphoria. In response to
Dr. Antommariaās testimony, Dr. Cantor conļ¬rmed that none of
the existing studies on puberty blockers and hormone therapies are
randomized and opined that there are alternative methodologies
that would be more reliable than observational trials, which he de-
scribed as the lowest quality of evidence. Dr. Cantor also testiļ¬ed
that the existing research does not support the conclusion that the
use of puberty blockers and hormone therapy is āthe only safe and
eļ¬ective treatment for gender dysphoria.ā In his opinion, gender
dysphoria can be treated with a āwatchful waiting approachā
whereby decisions about medical interventions are withheld, but
therapy is continued, until more information becomes available.
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20 Opinion of the Court 22-11707
According to Dr. Cantor, clinical guidelines suggest that comorbid-
ities, including mental health issues, should be resolved prior to
pursuing puberty blockers and cross-sex hormone treatment. He
also noted that some cases of gender dysphoria have turned out to
be prepubescent children misinterpreting their same-sex attraction
and that blocking puberty in such cases prevents those children
from understanding their sexuality.
On cross-examination, Dr. Cantor acknowledged that he is
not a medical doctor and that he has not provided care to
transgender adolescents under the age of sixteen.
Alabama then called Sydney Wright to testify about her per-
sonal experience with gender dysphoria. Wright is a biological fe-
male who is married to another woman. At the time of her testi-
mony, Wright was twenty-three years old. She testiļ¬ed that she
began identifying as transgender and receiving related treatment
when she was seventeen years old, which culminated in testos-
terone therapy for approximately one year when she was nineteen
years old. According to Wright, the testosterone treatment put her
at a greater risk of heart attack or stroke and caused her to develop
tachycardia. She explained that, after a signiļ¬cant discussion with
her grandfather, she stopped identifying as transgender and receiv-
ing testosterone therapy. She now believes that her doctors mis-
handled her treatment and that she simply needed counseling dur-
ing her teenage years. She also reported that her digestive system
is āstill messed upā and that she may have fertility issues as a result
of the testosterone therapy that she received over three-and-a-half
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22-11707 Opinion of the Court 21
years earlier. When asked what she would tell a young person
struggling with gender dysphoria, Wright stated that she would ad-
vise them to take āa lot of time,ā ālove [themselves],ā and under-
stand that they can act and dress like the opposite sex without
āhav[ing] to transition.ā
In addition to these two witnesses, Alabama produced,
among other things, research papers, foreign countriesā medical
guidelines, and the declarations of various healthcare professionals
and individuals with experience related to gender dysphoria. For
example, in terms of healthcare professionals, Alabama produced
a declaration in which Dr. Quentin L. Van Meter 6 states that com-
paring the use of puberty blockers for precocious puberty with the
use of puberty blockers for gender dysphoria is like ācomparing
apples to oranges,ā given the evidence that ānormal bone density
canāt be fully reestablishedā in the latter case and the lack of long-
term data on bone, gonad, and brain health. Alabama also pro-
duced a declaration in which Dr. Patrick Hunter 7 attests that āthere
is currently no established standard of care for transgender-identi-
ļ¬ed youthā and that ā[t]he medical risks of āgender-aļ¬rmingā in-
terventions are substantial.ā In terms of individuals with personal
experience related to gender dysphoria, Alabama produced the
6 Dr. Van Meter is a board-certified pediatrician and pediatric endocrinologist
who currently works in private practice.
7 Dr. Hunter is a board-certified pediatrician with a masterās degree in bioeth-
ics who currently holds academic positions at the University of Central Florida
and Florida State University.
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22 Opinion of the Court 22-11707
declaration of Corinna Cohn, a biological male who underwent sex
reassignment surgery at the age of nineteenāwhich included the
removal of testicles, penectomy, and vaginoplastyāand who, look-
ing back, claims to have been āunprepared to understand the con-
sequencesā of seeking such medical interventions as a teenager.
Alabama also produced a declaration in which Carol Freitas, a bio-
logical female who previously experienced gender dysphoria,
claims that ā[transitioning] was the biggest mistake [that she] ever
madeā and that she instead should have been treated for depression
and post-traumatic stress disorder related to her āinternalized hom-
ophobia and childhood abuse.ā Lastly, in terms of medical opin-
ions from foreign countries, Alabama produced documents show-
ing that public healthcare entities of Sweden, Finland, France, Aus-
tralia, New Zealand, and the United Kingdom have raised concerns
about the risks associated with puberty blockers and cross-sex hor-
mone treatment and supported greater caution and/or more re-
strictive criteria in connection with such interventions.
On May 13, 2022, the district court granted in part and de-
nied in part the motions for preliminary injunction, enjoining Ala-
bama from enforcing section 4(a)(1)ā(3) but allowing the rest of the
Act to remain in effect. The ruling was based on, among other
things, a determination that Plaintiffs had shown a substantial like-
lihood of success on the merits as to their substantive due process
claim and equal protection claim (Counts I and II), but not as to
their other claims. With respect to the substantive due process
claim (Count I), the district court recognized a fundamental right
of parents to ātreat their children with transitioning medications
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22-11707 Opinion of the Court 23
subject to medically accepted standards,ā held that the Act infringes
upon that fundamental right and concluded that Alabama had not
sufficiently demonstrated that the Act is narrowly tailored to
achieve a compelling state interest. With respect to the equal pro-
tection claim (Count II), the district court held that the Act
āamounts to a sex-based classificationā and concluded that Ala-
bama had not proffered a sufficiently persuasive justification for
that classification.
Alabama filed a timely notice of appeal on May 16, 2022. 8
II. STANDARD OF REVIEW
āWe review the grant of a preliminary injunction for abuse
of discretion, reviewing any underlying legal conclusions de novo
and any findings of fact for clear error.ā Gonzalez v. Governor of
Georgia, 978 F.3d 1266, 1270 (11th Cir. 2020). āA district court
abuses its discretion if it applies an incorrect legal standard, applies
the law in an unreasonable or incorrect manner, follows improper
procedures in making a determination, or makes findings of fact
that are clearly erroneous.ā Id.(quoting United States v. Estrada,969 F.3d 1245, 1261
(11th Cir. 2020)).
III. ANALYSIS
A district court may grant injunctive relief only if the mov-
ing party demonstrates that: ā(1) it has a substantial likelihood of
8 The operative pleadingāthe second amended complaintāwas filed on Sep-
tember 19, 2022. In terms of counts, the second amended complaint contains
only the substantive due process claim and the equal protection claim.
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24 Opinion of the Court 22-11707
success on the merits; (2) irreparable injury will be suffered unless
the injunction issues; (3) the threatened injury to the movant out-
weighs whatever damage the proposed injunction may cause the
opposing party; and (4) if issued, the injunction would not be ad-
verse to the public interest.ā Siegel v. LePore, 234 F.3d 1163, 1176
(11th Cir. 2000) (en banc). āIn considering these four prerequisites,
[courts] must remember that a preliminary injunction is an extraor-
dinary and drastic remedy which should not be granted unless the
movant clearly carries the burden of persuasionā as to these four
prerequisites. Canal Auth. v. Callaway, 489 F.2d 567, 573 (5th Cir.
1974); accord Siegel, 234 F.3d at 1176. 9
As previewed, the district court determined that these four
prerequisites are met with respect to section 4(a)(1)ā(3) and thus
enjoined Alabama from enforcing that part of the Act. The district
court dedicated the bulk of its analysis in the preliminary injunction
order to the first prerequisite and ultimately found that Plaintiffs
had established a substantial likelihood of success as to their sub-
stantive due process claim and equal protection claim. Because the
partiesā arguments on appeal similarly focus on the likelihood-of-
success prerequisite, we do the same. We begin with the substan-
tive due process claim and then turn to the equal protection claim.
A. Substantive Due Process
9 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as precedent the decisions of the former Fifth Circuit ren-
dered prior to October 1, 1981.
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22-11707 Opinion of the Court 25
The Due Process Clause of the Fourteenth Amendment pro-
vides that no state shall ādeprive any person of life, liberty, or prop-
erty, without due process of law.ā U.S. Const. amend. XIV, Ā§ 1.
The Supreme Court has held that this language guarantees both
procedural and substantive rights. Dobbs v. Jackson Womenās Health
Org., 142 S. Ct. 2228, 2246 (2022). Those substantive rights include
a āgreat majorityā of the rights guaranteed by the first eight
Amendments vis-Ć -vis the federal government, as well as āa select
list of fundamental rights that are not mentioned anywhere in the
Constitution.ā Id.; see also McDonald v. City of Chicago, 561 U.S. 742,
760ā66 (2010) (reviewing the history of the Supreme Courtās incor-
poration of āalmost all of the provisions of the Bill of Rightsā
against the States).
To determine whether a right at issue is one of the substan-
tive rights guaranteed by the Due Process Clause, courts must look
to whether the right is ādeeply rooted in [our] history and tradi-
tionā and āessential to our Nationās āscheme of ordered liberty.āā
Dobbs, 142 S. Ct. at 2246 (alteration in original) (quoting Timbs v.
Indiana, 139 S. Ct. 682, 687 (2019)). The outcome of this analysis
determines the amount of leeway that states have to enact laws
that infringe upon the right at issue. āLaws that burden the exer-
cise of a fundamental right require strict scrutiny and are sustained
only if narrowly tailored to further a compelling government inter-
est.ā Lofton v. Secāy of Depāt of Child. & Fam. Servs., 358 F.3d 804, 815
(11th Cir. 2004). Conversely, laws that do not burden the exercise
of a fundamental right (and do not discriminate against a suspect
class under the Equal Protection Clause) are subject to rational
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26 Opinion of the Court 22-11707
basis review and need only ābe rationally related to a legitimate
governmental interest.ā Jones v. Governor of Florida, 950 F.3d 795,
809 (11th Cir. 2020). Although not ātoothless,ā rational basis re-
view is āhighly deferential to government action.ā Id. (quoting
Schweiker v. Wilson, 450 U.S. 221, 234 (1981)).
In other words, every time a court recognizes an asserted
right as a fundamental right protected by the Constitution, the
court, āto a great extent, place[s] the matter outside the arena of
public debate and legislative action.ā Washington v. Glucksberg, 521
U.S. 702, 720 (1997). For that reason, the Supreme Court has in-
structed courts addressing substantive due process claims to āen-
gage[] in a careful analysis of the history of the right at issueā and
be āāreluctantā to recognize rights that are not mentioned in the
Constitution.ā Dobbs, 142 S. Ct. at 2246ā47 (quoting Collins v.
Harker Heights, 503 U.S. 115, 125 (1992)).
In this case, the district court determined that the āright to
treat [oneās] children with transitioning medications subject to
medically accepted standardsā is one of the substantive rights guar-
anteed by the Due Process Clause and that, therefore, section
4(a)(1)ā(3) is subject to strict scrutiny. But the use of these medica-
tions in generalālet alone for childrenāalmost certainly is not
ādeeply rootedā in our nationās history and tradition. Although
there are records of transgender or otherwise gender nonconform-
ing individuals from various points in history,10 the earliest-
10 See, e.g., Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 822 n.1
(11th Cir. 2022) (Wilson, J. dissenting) (noting that Justinianās Code, from the
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22-11707 Opinion of the Court 27
recorded uses of puberty blocking medication and cross-sex hor-
mone treatment for purposes of treating the discordance between
an individualās biological sex and sense of gender identity did not
occur until well into the twentieth century.11, 12 Indeed, the district
early sixth century AD, contains discussion of āhermaphroditesā); Mary Beth
Norton, Founding Mothers & Fathers: Gendered Power and the Forming of American
Society 183ā202 (1996) (discussing the case of Thomasine Hall, also known as
Thomas Hall, an intersex individual who alternated between identifying as a
man and as a woman and who was ordered by a Virginia court in 1629 to wear
dual-gendered apparel); Genny Beemyn, U.S. History, in Trans Bodies, Trans
Selves: A Resource for the Transgender Community 501, 501ā53 (Laura Erickson-
Schroth ed. 2014) (discussing multiple prominent transgender individuals born
between 1882 and 1926, including Lili Elbe, formerly known as Einar We-
gener; Laurence Michael Dillon, formerly known as Laura Maud Dillon; and
Christine Jorgensen, formerly known as George William).
11 Puberty blockers first began being used in the 1980s.
See Victoria Pelham,
Puberty Blockers: What You Should Know, Cedars-Sinai Blog (Jan. 16, 2023),
https://www.cedars-sinai.org/blog/puberty-blockers-for-precocious-pu-
berty.html; Simona Giordano & SĆøren Holm, Is Puberty Delaying Treatment āEx-
perimental Treatmentā?, 21(2) Intāl. J. Transgend. Health 113 (2020),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7430465/.
12 Estrogen and testosterone were not discovered and characterized until the
1920s and 1930s. See Jamshed R. Tata, One Hundred Years of Hormones, 6 EMBO
Rep. 490, 491 (2005), https://www.ncbi.nlm.nih.gov/pmc/arti-
cles/PMC1369102/pdf/67400444.pdf. Laurence Michael Dillon, formerly
known as Laura Maud Dillon, began receiving testosterone treatment for pur-
poses of treating the discordance between biological sex and sense of gender
identity in 1939 and is thought by some to be the first biological female to
receive such treatment. See Pagan Kennedy, The First Man-Made Man: The Story
of Two Sex Changes, One Love Affair, and a Twentieth-Century Medical Revolution
(2007). According to the WPATH Standards of Care offered by both Plaintiffs
and the United States, health professionals began using hormone therapy as a
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28 Opinion of the Court 22-11707
courtās order does not feature any discussion of the history of the
use of puberty blockers or cross-sex hormone treatment or other-
wise explain how that history informs the meaning of the Four-
teenth Amendment at the time it was ratifiedāJuly 9, 1868. 13 See
Morrissey v. United States, 871 F.3d 1260, 1269ā70 (11th Cir. 2017)
(rejecting the notion that the Constitution protects a right to pro-
create via in vitro fertilization procedures based on the fact that
such procedures are ādecidedly modern phenomenaā that did not
come about until 1978).
Rather than perform any historical inquiry specifically tied
to the particular alleged right at issue, the order on appeal instead
surmises that the āright to treat [oneās] children with transitioning
medications subject to medically accepted standardsā falls under
the broader, recognized fundamental right to āmake decisions con-
cerning the care, custody, and control of [oneās] children.ā E.g.,
Troxel v. Granville, 530 U.S. 57, 66(2000); Lofton,358 F.3d at 812
.
But see Morrissey, 871 F.3d at 1269 (emphasizing that a substantive
due process analysis must focus on the specific right asserted, ra-
ther than simply rely on a related general right). However, there
is no binding authority that indicates that the general right to
āmake decisions concerning the care, custody, and control of
treatment for gender dysphoria ā[i]n the second half of the 20th century.ā
Doc. 78-17 at 14.
13 See Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Orig-
inal Meaning, 91 Notre Dame L. Rev. 1, 6ā7 (2015) (ā[T]he original meaning
(ācommunicative contentā) of the constitutional text is fixed at the time each
provision is framed and ratified.ā).
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22-11707 Opinion of the Court 29
[oneās] childrenā includes the right to give oneās children puberty
blockers and cross-sex hormone treatment.
The fundamental right to āmake decisions concerning the
care, custody, and control of [oneās] children,ā as it is recognized
today, traces back in large part to Meyer v. Nebraska, 262 U.S. 390
(1923). There, the Supreme Court held that a Nebraska law re-
stricting the teaching of foreign languages violated the Due Process
Clause. Id. at 400ā03. In doing so, the Court recognized that the
ālibertyā guaranteed by the Due Process Clause includes the right
āto engage in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up children, . . .
and generally to enjoy those privileges long recognized at common
law as essential to the orderly pursuit of happiness of free men.ā
Id. at 399 (emphasis added).
The Supreme Court elaborated on the fundamental liberty
of parents two years later in Pierce v. Society of the Sisters of the Holy
Names of Jesus & Mary, 268 U.S. 510 (1925). That case addressed
Oregonās Compulsory Education Act of 1922, which mandated
that parents send their school-aged children to public school (as op-
posed to private school). Id. at 530ā31. Citing its decision in Meyer,
the Court concluded that the Oregon law violated the Due Process
Clause on the basis that it āunreasonably interferes with the liberty
of parents and guardians to direct the upbringing and education of chil-
dren under their control.ā Id. at 534ā35 (emphasis added).
Meyer and Pierce ushered in a line of Supreme Court deci-
sions that recognized, and further defined the contours of, parentsā
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30 Opinion of the Court 22-11707
liberty interest to control the upbringing of their children. 14 The
majority of those cases, however, pertain to issues of education,
religion, or custody. The Supreme Courtās most extensive discus-
sion of parentsā control over the medical treatment received by
their children came in Parham v. J. R., 442 U.S. 584 (1979).
In Parham, a group of minors brought a Due Process chal-
lenge to Georgiaās procedures for committing children to mental
hospitals. Id. at 587ā88. At the time, Georgia law provided for the
voluntary admission of children upon application by a parent or
14 See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166ā69 (1944) (recognizing that
āthe custody, care and nurture of [children] reside[s] first in the parents,ā but
nevertheless upholding Massachusetts child labor laws that restricted the abil-
ity of children to sell religious literature in accordance with their parentsā
wishes based on the stateās āauthority over childrenās activitiesā and āthe crip-
pling effects of child employment, more especially in public placesā (footnote
omitted)); Stanley v. Illinois, 405 U.S. 645, 646ā59 (1972) (holding that Illinois
could not automatically designate the children of unwed parents as wards of
the state upon the death of the mother because fathers of children born out of
wedlock have a ācognizable and substantialā āinterest in retaining custody of
[their] childrenā under the Constitution); Wisconsin v. Yoder, 406 U.S. 205, 213ā
234 (1972) (holding that Wisconsin could not compel school attendance be-
yond the eighth grade because doing so would āgrave[ly] interfere[] with im-
portant Amish religious tenetsā and āthe traditional interest of parents with
respect to the religious upbringing of their childrenā); Troxel, 530 U.S. at 60ā
75 (striking down Washingtonās nonparental visitation statute, which would
have permitted any person to petition for visitation rights at any time and
courts to grant such rights whenever in the best interest of the child, on the
basis that it contravened āthe fundamental right of parents to make decisions
concerning the care, custody, and control of their childrenā and āthe tradi-
tional presumption that a fit parent will act in the best interest of his or her
childā).
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22-11707 Opinion of the Court 31
guardian. Id. at 590ā91. Thus, the question at issue was whether
the minors had a procedural due process right to greater procedural
safeguards, e.g., a judicial hearing, before their parents could com-
mit them. Id. at 610. The Supreme Court concluded that āsome
kind of inquiry should be made by a āneutral factfinderā to deter-
mine whether the statutory requirements for admission are satis-
fied,ā but that the inquiry could be āinformal,ā e.g., conducted by
a staff physician, and did not require an adversarial proceeding with
a judicial or administrative officer. Id. at 606ā10. ā[R]equiring a
formalized, factfinding hearing,ā according to the Supreme Court,
would ā[p]it[] the parents and the childā against each other and rep-
resent a āsignificant intrusion into the parent-child relationship.ā
Id. at 610; see also id. (āIt is one thing to require a neutral physician
to make a careful review of the parentsā decision in order to make
sure it is proper from a medical standpoint; it is a wholly different
matter to employ an adversary contest to ascertain whether the
parentsā motivation is consistent with the childās interests.ā). In so
ruling, the Supreme Court recognized, as a general matter, that
ā[m]ost children, even in adolescence, simply are not able to make
sound judgments concerning many decisions, including their need
for medical care or treatment,ā id. at 603, and that parents retain
āplenary authorityā as well as āa substantial, if not the dominant,
roleā in deciding to pursue lawfully available treatment, like insti-
tutionalization, for their children, id. at 604; see also id. at 609 (con-
cerning ātreatment that is provided by the stateā). Parham was con-
cerned about the procedures a state must afford a child prior to in-
stitutionalization when the parent believes such treatmentāwhich
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32 Opinion of the Court 22-11707
is not only lawful but provided by the state itselfāis necessary. No-
tably, Parham does not at all suggest that parents have a fundamen-
tal right to direct a particular medical treatment for their child that
is prohibited by state law. Parham therefore offers no support for
the Parent Plaintiffsā substantive due process claim.
This Court has issued its own series of decisions outlining
the contours of parentsā liberty interest to control the upbringing
of their children,15 with the most relevant decision being Bendiburg
v. Dempsey, 909 F.2d 463 (11th Cir. 1990). In that case, the State of
Georgia had obtained temporary custody of a fifteen-year-old boy
who was injured in an automobile accident. As the boyās custodian
15 See, e.g., Arnold v. Bd. of Educ. of Escambia Cnty., 880 F.2d 305, 312ā14 (11th
Cir. 1989) (holding that the parent plaintiffs sufficiently alleged a cause of ac-
tion under 42 U.S.C. Ā§ 1983 for violation of the fundamental right to direct the
upbringing of oneās children against two school officials who allegedly coerced
a minor female into undergoing an abortion), overruled on other grounds by
Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163
(1993); Lofton, 358 F.3d at 811ā15 (declining to extend the parental right of con-
trol protected by the Due Process Clause to foster parents); Robertson v.
Hecksel, 420 F.3d 1254, 1255ā60 (11th Cir. 2005) (declining āto further expand
the substantive protections of the Due Process Clauseā by recognizing that a
mother whose son was killed by police during a traffic stop āsuffered a depri-
vation of [a] constitutionally-protected liberty interest in a continued relation-
ship with [him]ā); Frazier ex rel. Frazier v. Winn, 535 F.3d 1279, 1281ā86 (11th
Cir. 2008) (holding that Floridaās Pledge of Allegiance statute, which requires
students to recite the Pledge in the absence of a written request to the contrary
by a parent, is constitutional despite restricting the studentsā freedom of
speech because it advances the fundamental rights of parents to direct the up-
bringing of their children).
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22-11707 Opinion of the Court 33
and over the fatherās wishes, 16 Georgia consented to the use of a
Hickman catheter on the boy, which allegedly caused a massive
pulmonary embolus and ultimately the boyās death. Id. at 466ā67.
This Court allowed the fatherās procedural due process claims
against certain defendants to proceed to trial, noting that āneither
the state nor private actors, concerned for the medical needs of a
child, can willfully disregard the rights of parents to generally make
decisions concerning the treatment to be given to their childrenā
and that ā[t]he Due Process Clause prevents government from
abusing its power, or employing its power as an instrument of op-
pression.ā Id. at 470. But, as relevant here, this Court affirmed the
determination that the father had no substantive due process claim
and recognized that ā[t]he state has an interest in protecting the
health, safety, and welfare of children residing within its borders.ā 17
Id. at 468, 470.
In sum, none of the binding decisions regarding substantive
due process establishes that there is a fundamental right to ātreat
[oneās] children with transitioning medications subject to medically
16 The childās mother had been killed in the same automobile accident. Bendi-
burg, 909 F.2d at 466.
17 It bears emphasizing that Bendiburg dealt with a situation wherein a State
interfered with a single parentās ability to refuse certain lawful medical treat-
ment for his child. Id. at 466ā67. To the extent that Bendiberg supports the
proposition that parents have a substantive due process right relating to the
medical treatment that their children receive, its reasoning is not equally ap-
plicable to situations involving parentsā ability to affirmatively obtain certain
medical treatment for their children that the State prohibits.
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34 Opinion of the Court 22-11707
accepted standards.ā Instead, some of these cases recognize, at a
high level of generality, that there is a fundamental right to make
decisions concerning the āupbringingā and ācare, custody, and con-
trolā of oneās children. See Pierce, 268 U.S. at 534ā35; Troxel, 530
U.S. at 66. And 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 partic-
ular medical treatment for their children as long as a critical mass
of medical professionals approve. Moreover, all of the cases deal-
ing with the fundamental parental right reflect the common thread
that states properly may limit the authority of parents where āit
appears that parental decisions will jeopardize the health or safety
of the child, or have a potential for significant social burdens.ā Wis-
consin v. Yoder, 406 U.S. 205, 233ā34 (1972); see also Prince v. Massa-
chusetts, 321 U.S. 158, 168ā69 (1944); Parham,442 U.S. at 604
; Ben-
diburg, 909 F.2d at 470. Against this backdrop, and without any his-
torical analysis specifically tied to the medications at issue, Plaintiffs
have not shown it to be likely that the Due Process Clause of the
Constitution guarantees a fundamental āright to treat [oneās] chil-
dren with transitioning medications subject to medically accepted
standards.ā 18 See L.W. v. Skrmetti, 73 F.4th 408, 416ā17 (6th Cir. July
8, 2023) (recognizing that parents āhave a substantive due process
18 This is consistent with the fact that there has been no showing of any histor-
ical recognition of a fundamental right of adults to obtain the medications at
issue for themselves. As Alabama points out, it would make little sense for
adults to have a parental right to obtain these medications for their children
but not a personal right to obtain the same medications for themselves.
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22-11707 Opinion of the Court 35
right āto make decisions concerning the care, custody, and control
of their childrenāā but noting that ā[n]o Supreme Court case ex-
tends it to a general right to receive new medical or experimental
drug treatmentsā (quoting Troxel, 530 U.S. at 66)).
Because the Due Process Clause does not guarantee the de-
scribed right, state regulation of the use of puberty blockers and
cross-sex hormone treatment for minors would be subject only to
rational basis review and thus afforded āa āstrong presumption of
validity.āā Dobbs, 142 S. Ct. at 2284(quoting Heller v. Doe,509 U.S. 312, 319
(1993)). āUnder this deferential standard,ā the question
that we ask āis simply whether the challenged legislation is ration-
ally related to a legitimate state interest.ā Lofton, 358 F.3d at 818.
Such a relationship may merely ābe based on rational speculationā
and need not be supported āby evidence or empirical data.ā FCC v.
Beach Commcāns, Inc., 508 U.S. 307, 315(1993); accord Jones,950 F.3d at 809
(āWhen we review a statute for rationality, generally we ask
whether there is any rational basis for the law, even if the govern-
ment's proffered explanation is irrational, and even if it fails to offer
any explanation at all.ā).
We are highly doubtful that section 4(a)(1)ā(3) would not
survive the lenient standard that is rational basis review. It is well
established that states have a compelling interest in āsafeguarding
the physical and psychological well-being of . . . minor[s].ā Otto v.
City of Boca Raton, 981 F.3d 854, 868 (11th Cir. 2020) (quoting New
York v. Ferber, 458 U.S. 747, 756ā57 (1982)). In the same vein, states
have a compelling interest in protecting children from drugs,
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36 Opinion of the Court 22-11707
particularly those for which there is uncertainty regarding benefits,
recent surges in use, and irreversible effects. 19 Although rational
speculation is itself sufficient to survive rational basis review, here
Alabama relies on both record evidence and rational speculation to
establish that section 4(a)(1)ā(3) is rationally related to that compel-
ling state interest. First, the record evidence is undisputed that the
medications at issue present some risks. As the district court recog-
nized, these medications can cause āloss of fertility and sexual func-
tion.ā The district court also acknowledged testimony that āsev-
eral European countries have restricted treating minors with tran-
sitioning medications due to growing concern about the medica-
tionsā risks.ā Second, there is at least rational speculation that some
families will not fully appreciate those risks and that some minors
experiencing gender dysphoria ultimately will desist and identify
with their biological sex. Section 4(a)(1)ā(3) addresses these risks
by prohibiting the prescription and administration of puberty
blockers and cross-sex hormone treatment to a patient under the
age of nineteen for purposes of treating discordance between bio-
logical sex and sense of gender identity so that children will have
more time to develop their identities and to consider all of the
19 As Alabama suggests, the opioid epidemic has shown firsthand the need to
be skeptical and exercise caution when there is a sudden uptick in prescriptions
of powerful, off-label medications, even when some medical and pharmaceu-
tical organizations defend their safety. See also Skrmetti, 73 F.4th at 418 (ā[I]t is
difficult to maintain that the medical community is of one mind about the use
of hormone therapy for gender dysphoria when the FDA is not prepared to
put its credibility and careful testing protocols behind the use.ā).
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22-11707 Opinion of the Court 37
potential consequences before moving forward with such treat-
ments. That connection would be sufficient under rational basis
review.
In sum, Plaintiffsā assertion that the Constitution protects
the right to treat oneās children with puberty blockers and cross-
sex hormone therapy is precisely the sort of claim that asks courts
to ābreak new ground in [the] field [of Substantive Due Process]ā
and therefore ought to elicit the āutmost careā from the judiciary.
See Collins, 503 U.S. at 125. The district court held that there is a
specific right under the Constitution āto treat [oneās] children with
transitioning medications subject to medically accepted standards,ā
but did so without performing any analysis of whether that specific
right is deeply rooted in our nationās history and tradition. Instead,
the district court grounded its ruling in an unprecedented interpre-
tation of parentsā fundamental right to make decisions concerning
the āupbringingā and ācare, custody, and controlā of oneās chil-
dren. See Pierce, 268 U.S. at 534ā35; Troxel, 530 U.S. at 66. That was
error. Neither the record nor any binding authority establishes that
the āright to treat [oneās] children with transitioning medications
subject to medically accepted standardsā is a fundamental right
protected by the Constitution. And, assuming it is not, then section
4(a)(1)ā(3) is subject only to rational basis reviewāa lenient stand-
ard that the law seems to undoubtedly clear. Because the district
court erroneously reviewed section 4(a)(1)ā(3) with heightened
scrutiny, its determination regarding the Parent Plaintiffsā likeli-
hood of success does not justify the preliminary injunction.
B. Equal Protection
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38 Opinion of the Court 22-11707
The Equal Protection Clause provides that no state shall
ādeny to any person within its jurisdiction the equal protection of
the laws.ā U.S. Const. amend. XIV, Ā§ 1. The Equal Protection
Clause is āessentially a direction that all persons similarly situated
should be treated alike,ā City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 439 (1985), and āsimply keeps governmental decisionmak-
ers from treating differently persons who are in all relevant respects
alike,ā Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
āIn considering whether state legislation violates the Equal
Protection Clause . . . we apply different levels of scrutiny to differ-
ent types of classifications.ā Clark v. Jeter, 486 U.S. 456, 461 (1988).
All statutory classifications must, at a minimum, satisfy rational ba-
sis review. Id. Classifications based on race or national origin,
however, are reviewed under the āmost exactingā level of scrutiny:
strict scrutiny. Id. Between rational basis review and strict scrutiny
lies āa level of intermediate scrutiny,ā which applies to classifica-
tions based on sex or illegitimacy. Id.
Thus, a government policy that distinguishes on the basis of
sex is permissible under the Equal Protection Clause āonly if it sat-
isfies intermediate scrutiny.ā Adams ex rel. Kasper v. Sch. Bd. of St.
Johns Cnty., 57 F.4th 791, 801 (11th Cir. 2022). Under that standard,
the party seeking to uphold the policy carries the burden of āshow-
ing that the [sex-based] classification serves āimportant governmen-
tal objectives and that the discriminatory means employedā are
āsubstantially related to the achievement of those objectives.āā
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22-11707 Opinion of the Court 39
Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (quoting
Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980)).
āFor a government objective to be important, it cannot ārely
on overbroad generalizations about the different talents, capacities,
or preferences of males and females.āā Adams, 57 F.4th at 801 (quot-
ing United States v. Virginia, 518 U.S. 515, 533 (1996)). And for a
policyās means to be substantially related to a government objec-
tive, there must be āenough of a fitā between the means and the
asserted justification. Id. (quoting Danskine v. Mia. Dade Fire Depāt,
253 F.3d 1288, 1299 (11th Cir. 2001)). However, āthe Equal Protec-
tion Clause does not demand a perfect fit between means and ends
when it comes to sex.ā Id.; see also Nguyen v. INS, 533 U.S. 53, 70
(2001) (āNone of our gender-based classification equal protection
cases have required that the [policy] under consideration must be
capable of achieving its ultimate objective in every instance.ā).
In this case, the district court first held that section 4(a)(1)ā
(3) of the Act classifies on the basis of gender nonconformity and
therefore classifies on the basis of sex. In determining that section
4(a)(1)ā(3) classifies on the basis of gender nonconformity, the dis-
trict court reasoned that section 4(a)(1)ā(3) āprohibits transgender
minorsāand only transgender minorsāfrom taking transitioning
medications due to their gender nonconformity.ā And, in holding
that a classification on the basis of gender nonconformity neces-
sarily constitutes a classification on the basis of sex, the district
court cited the reasoning of Bostock v. Clayton County, 140 S. Ct.
1731(2020), and Glenn v. Brumby,663 F.3d 1312
(11th Cir. 2011).
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40 Opinion of the Court 22-11707
After determining that section 4(a)(1)ā(3) of the Act
amounts to a sex-based classification subject to intermediate scru-
tiny, the district court then found that Alabama had not offered any
exceedingly persuasive justification for the classification and thus
concluded that that the Minor Plaintiffs are substantially likely to
succeed on their equal protection claim.
On appeal, Alabama maintains that section 4(a)(1)ā(3) classi-
fies on the bases of age and procedure, not sex or gender noncon-
formity, and is therefore not subject to any heightened scrutiny
above rational basis review. See Gregory v. Ashcroft, 501 U.S. 452,
470 (1991) (ā[A]ge is not a suspect classification under the Equal
Protection Clause.ā); Clark, 486 U.S. at 461 (listing suspect classifi-
cations and making no reference to classifications based on proce-
dures). Alabama further argues that section 4(a)(1)ā(3) would sur-
vive at any level of scrutiny because it āserves the compelling
[state] interest of protecting children from unproven, life-altering
medical interventionsā and because āno other approach would of-
fer children in Alabama adequate protection.ā
In response, the Minor Plaintiffs argue that section 4(a)(1)ā
(3) classifies on the basis of sex both directly, by using sex-based
terms, and indirectly, by classifying on the basis of gender noncon-
formity, and that the district court therefore properly applied inter-
mediate scrutiny. The Minor Plaintiffs also argue that, even if the
more lenient rational basis standard applies, section 4(a)(1)ā(3) does
not pass muster. For its part, the United States makes the argument
that section 4(a)(1)ā(3) ātriggers heightened scrutinyā because it
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22-11707 Opinion of the Court 41
ādiscriminates against transgender persons, who constitute at least
a quasi-suspect classā by themselves, distinct from sex.
Having carefully considered all of these positions, we agree
with Alabama that section 4(a)(1)ā(3) is best understood as a law
that targets specific medical interventions for minors, not one that
classifies on the basis of any suspect characteristic under the Equal
Protection Clause. Section 4(a)(1)ā(3) is therefore subject only to
rational basis reviewāa standard that it almost undoubtedly satis-
fies for the reasons discussed. See supra Section III.A; see also
Skrmetti, 73 F.4th at 419 (finding it āhighly unlikelyā that the plain-
tiffs could show that Tennesseeās substantially similar law ālacks a
rational basisā). Because the district court erroneously departed
from that standard, its assessment regarding the Minor Plaintiffsā
likelihood of success as to their equal protection claim cannot sup-
port the preliminary injunction. We reason as follows.
To begin, we reject the view that section 4(a)(1)ā(3)
amounts to a sex-based classification subject to intermediate scru-
tiny. As mentioned, one of the Minor Plaintiffsā arguments is that
section 4(a)(1)ā(3) directly classifies on the basis of sex because it
āuses explicitly sex-based terms to criminalize certain treatments
based on a minorās āsex.āā Of course, section 4(a)(1)ā(3) discusses
sex insofar as it generally addresses treatment for discordance be-
tween biological sex and gender identity, and insofar as it identifies
the applicable cross-sex hormone(s) for each sexāestrogen for
males and testosterone and other androgens for females. We
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42 Opinion of the Court 22-11707
nonetheless believe the statute does not discriminate based on sex
for two reasons.
First, the statute does not establish an unequal regime for
males and females. In the Supreme Courtās leading precedent on
gender-based intermediate scrutiny under the Equal Protection
Clause, the Court held that heightened scrutiny applies to āofficial
action that closes a door or denies opportunity to women (or to
men).ā Virginia, 518 U.S. at 532. Alabamaās law does not distin-
guish between men and women in such a way. Cf. Adams, 57 F.4th
at 800ā11. Instead, section 4(a)(1)ā(3) establishes a rule that applies
equally to both sexes: it restricts the prescription and administra-
tion of puberty blockers and cross-sex hormone treatment for pur-
poses of treating discordance between biological sex and sense of
gender identity for all minors. See Skrmetti, 73 F.4th at 419 (explain-
ing that this sort of restriction on puberty blockers and cross-sex
hormone treatment ādoes not prefer one sex to the detriment of
the otherā).
Second, the statute refers to sex only because the medical
procedures that it regulatesāpuberty blockers and cross-sex hor-
mones as a treatment for gender dysphoriaāare themselves sex-
based. The Act regulates medical interventions to treat an incon-
gruence between oneās biological sex and oneās perception of oneās
sex. The cross-sex hormone treatments for gender dysphoria are
different for males and for females because of biological differences
between males and femalesāfemales are given testosterone and
males are given estrogen. With regards to puberty blockers, those
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22-11707 Opinion of the Court 43
medications inhibit and suppress the production of testosterone in
males and estrogen in females. For that reason, it is difficult to im-
agine how a state might regulate the use of puberty blockers and
cross-sex hormones for the relevant purposes in specific terms with-
out referencing sex in some way. Thus, we do not find the direct
sex-classification argument to be persuasive.
The Minor Plaintiffsā other sex-based argument is that sec-
tion 4(a)(1)ā(3) indirectly classifies on the basis of sex by classifying
on the basis of gender nonconformity. This is the position that the
district court adopted, citing Bostock and Brumby. Neither of those
cases, however, dealt with the Equal Protection Clause as applied
to laws regulating medical treatments.
Bostock dealt with Title VII of the Civil Rights Act of 1964,
Ā§ 701 et seq., as amended, 42 U.S.C. Ā§ 2000e et seq., in the context of
employment discrimination. See 140 S. Ct. at 1737ā41, 1754 (hold-
ing that ā[a]n employer who fires an individual merely for being
gay or transgender defies [Title VII]ā). After noting that āonly the
words on the page constitute the law adopted by Congress and ap-
proved by the President,ā id. at 1738, the Court in Bostock relied
exclusively on the specific text of Title VII. The Court āpro-
ceed[ed] on the assumption that āsexā . . . refer[s] only to biological
distinctions between male and female.ā Id. at 1739. But the Court
reasoned that the combined ordinary meaning of the words ābe-
cause of,ā id., āotherwise . . . discriminate against,ā id. at 1740, and
āindividual,ā id., led to the conclusion that Title VII makes ā[a]n
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44 Opinion of the Court 22-11707
individual's homosexuality or transgender status . . . not relevant
to employment decisions,ā id. at 1741.
The Equal Protection Clause contains none of the text that
the Court interpreted in Bostock. It provides simply that ā[n]o State
shall . . . deny to any person within its jurisdiction the equal protec-
tion of the laws.ā U.S. Const. amend XIV. Because Bostock there-
fore concerned a different law (with materially different language)
and a different factual context, it bears minimal relevance to the
instant case. See Skrmetti, 73 F.4th at 420 (finding that the reasoning
of Bostock āapplies only to Title VIIā); see also 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 Bostockās reasoning applies to the Equal
Protection Clause of the Fourteenth Amendment because the
Fourteenth Amendment āpredates Title VII by nearly a centuryā
and contains language that is ānot similar in any wayā to Title
VIIās); see Students for Fair Admissions, Inc., v. President & Fellows of
Harvard Coll., 143 S. Ct. 2141, 2220 (2023) (Gorsuch, J., concurring)
(noting the different language in Title VI and the Equal Protection
Clause and explaining ā[t]hat such differently worded provisions
should mean the same thing is implausible on its face.ā)
Brumby, on the other hand, did deal with the Equal Protec-
tion Clause; but, like Bostock, Brumby concerned gender stereotyp-
ing in the context of employment discrimination. See 663 F.3d at
1313ā20 (holding that āa government agent violates the Equal Pro-
tection Clauseās prohibition of sex-based discrimination when he
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22-11707 Opinion of the Court 45
or she fires a transgender or transsexual employee because of his or
her gender non-conformityā). So, while Brumby did involve the
same law at issue hereāthe Equal Protection Clauseāit discussed
that law as applied to a particular factual scenario, i.e., one where
an employer fired an employee for failing to adhere to certain ex-
pectations and stereotypes associated with the employeeās sex.
That is not the scenario presented here. Section 4(a)(1)ā(3) targets
certain medical interventions for minors meant to treat the condi-
tion of gender dysphoria; it does not further any particular gender
stereotype. Insofar as section 4(a)(1)ā(3) involves sex, it simply re-
flects biological differences between males and females, not stere-
otypes associated with either sex.
To be sure, section 4(a)(1)ā(3) restricts a specific course of
medical treatment that, by the nature of things, only gender non-
conforming individuals may receive. But just last year, the Su-
preme Court explained that ā[t]he regulation of a medical proce-
dure that only one sex can undergo does not trigger heightened
constitutional scrutiny unless the regulation is a āmere pretex[t] de-
signed to effect an invidious discrimination against members of one
sex or the other.āā Dobbs, 142 S. Ct. at 2245ā46 (alteration in origi-
nal) (quoting Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974)); see
also id. at 2246 (recognizing that āthe āgoal of preventing abortionā
does not constitute āinvidiously discriminatory animusā against
womenā (quoting Bray v. Alexandria Womenās Health Clinic, 506 U.S.
263, 273ā74 (1993))). By the same token, the regulation of a course
of treatment that only gender nonconforming individuals can un-
dergo would not trigger heightened scrutiny unless the regulation
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46 Opinion of the Court 22-11707
were a pretext for invidious discrimination against such individu-
als. And the district court did not find that Alabamaās law was
based on invidious discrimination.
We similarly reject the United Statesā view that section
4(a)(1)ā(3) is subject to heightened scrutiny because it classiļ¬es on
the basis of transgender status, separate from sex. As we recently
explained, āwe have grave ādoubtā that transgender persons consti-
tute a quasi-suspect class,ā distinct from sex, under the Equal Pro-
tection Clause. Adams, 57 F.4th at 803 n.5. Even if they did, for the
reasons discussed with respect to gender nonconformity, section
4(a)(1)ā(3)ās relationship to transgender status would not trigger
heightened scrutiny. Chieļ¬y, the regulation of a course of treat-
ment that, by the nature of things, only transgender individuals
would want to undergo would not trigger heightened scrutiny un-
less the regulation is a pretext for invidious discrimination against
such individuals, and, here, the district court made no ļ¬ndings of
such a pretext. For these reasons, we conclude that section 4(a)(1)ā
(3)ās relationship to transgender status does not warrant height-
ened scrutiny.
Apart from sex, gender nonconformity, and transgender sta-
tus, the Minor Plaintiļ¬s and the United States do not claim any
other suspect classiļ¬cation. All the parties agree that section
4(a)(1)ā(3) draws distinctions on the basis of age. However, āage is
not a suspect classiļ¬cation under the Equal Protection Clause.ā
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000). As a result,
ā[s]tates may discriminate on the basis of age without oļ¬ending the
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22-11707 Opinion of the Court 47
Fourteenth Amendment if the age classiļ¬cation in question is ra-
tionally related to a legitimate state interest.ā Id. And ā[t]he ra-
tionality commanded by the Equal Protection Clause does not re-
quire States to match age distinctions and the legitimate interests
they serve with razorlike precision.ā Id.
Here, it seems abundantly clear that section 4(a)(1)ā(3) clas-
siļ¬es on the basis of age in a way that is rationally related to a le-
gitimate state interest. As discussed, Alabama has a legitimate in-
terest in āsafeguarding the physical and psychological well-being of
. . . minor[s],ā and notably that interest itself distinguishes minors
from adults. Otto, 981 F.3d at 868 (quoting Ferber, 458 U.S. at 756ā
57); see supra Section III.A. Section 4(a)(1)ā(3) furthers that interest
by restricting the prescription and administration of puberty block-
ers and cross-sex hormone treatment to minors for purposes of
treating discordance between biological sex and sense of gender
identity based on the rational understanding that many minors
may not be ļ¬nished forming their identities and may not fully ap-
preciate the associated risks. Moreover, Alabamaās decision to draw
the line at the age of nineteen suļ¬ciently approximates the divide
between individuals who warrant government protection and indi-
viduals who are better able to make decisions for themselves; it is
neither too over- nor under-inclusive. For these reasons, it is ex-
ceedingly likely that section 4(a)(1)ā(3) satisļ¬es rational basis re-
view as a classiļ¬cation on the basis of age.
Section 4(a)(1)ā(3) is therefore subject only to rational basis
reviewāa standard that it is exceedingly likely to satisfy for the
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48 Opinion of the Court 22-11707
reasons discussed. See supra Section III.A. The district court erred
as a matter of law by applying heightened scrutiny, and that error
tainted its assessment of Plaintiļ¬sā likelihood of success. Because
that is true with respect to both the due process claim and the equal
protection claim, we vacate the preliminary injunction.
****
This case revolves around an issue that is surely of the ut-
most importance to all of the parties involved: the safety and well-
being 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.
Faced with this difficult and delicate set of circumstances,
the district court granted the āextraordinary and drastic remedyā
that is a preliminary injunction and enjoined Alabama from enforc-
ing part of the law in dispute. See Callaway, 489 F.2d at 573. In
doing so, the district court determined that section 4(a)(1)ā(3) of
the Act is subject to heightened scrutiny on due process and equal
protection grounds and therefore the parties challenging the law
had a substantial likelihood of success on the merits as to those
claims. That was erroneous. With respect to the Parent Plaintiffsā
substantive due process claim, the district court divined, without
adequate historical support, that the Due Process Clause of the
Fourteenth Amendment protects the right to ātreat [oneās] children
with transitioning medications subject to medically accepted
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22-11707 Opinion of the Court 49
standards.ā And with respect to the Minor Plaintiffsā equal protec-
tion claim, the district court determined that the law classifies on
the basis of sex, when in reality the law simply reflects real, biolog-
ical differences between males and females and equally restricts the
use of puberty blockers and cross-sex hormone treatment for mi-
nors of both sexes. Because the district court reviewed the law un-
der the wrong standard of scrutiny in connection with both claims,
the issuance of the preliminary injunction constituted an abuse of
discretion. See Curling v. Raffensperger, 50 F.4th 1114, 1121 (11th Cir.
2022) (ā[A] court abuses its discretion in granting a preliminary in-
junction if, in determining whether success is likely, it incorrectly
or unreasonably applies the law.ā).
IV. CONCLUSION
For these reasons, we vacate the district courtās preliminary
injunction on the enforcement of section 4(a)(1)ā(3) of the Act.
VACATED.
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22-11707 BRASHER, J., Concurring 1
BRASHER, Circuit Judge, concurring:
I concur in the Courtās opinion. I write separately to focus
on the plaintiļ¬sā equal protection claim.
The resolution of an equal protection claim often turns on
the level of scrutiny that we applyārational basis, intermediate, or
strict. The plaintiļ¬s argue that the statute classiļ¬es based on sex,
which warrants intermediate scrutiny. The Court rejects that argu-
ment, and, after much deliberation and research, I agree. Ala-
bamaās statute does not treat one sex diļ¬erently than the other. It
does not use sex as a proxy for some more germane classiļ¬cation.
And it is not based on a sex stereotype. Instead, I think the law is
best read to classifyānot based on sexābut as between minors
who want puberty blockers and hormones to treat āa discordance
between [their] sex and sense of gender identity,ā Ala. Code Ā§ 26-
26-2(2), and those minors who want these drugs to treat a diļ¬erent
condition.
But even if the statute did discriminate based on sex, I think
it is likely to satisfy intermediate scrutiny. If Alabamaās statute in-
volves a sex-based classiļ¬cation that triggers heightened scrutiny, it
does so because it is otherwise impossible to regulate these drugs
diļ¬erently when they are prescribed as a treatment for gender dys-
phoria than when they are prescribed for other purposes. As long
as the state has a substantial justiļ¬cation for regulating diļ¬erently
the use of puberty blockers and hormones for diļ¬erent purposes,
then I think this law satisļ¬es intermediate scrutiny.
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2 BRASHER, J., Concurring 22-11707
I.
Iāll start with the level of scrutiny that applies to this law. We
should be cautious when we are asked to extend heightened scru-
tiny to novel facts like these. As Justice Stevens explained in one of
the Courtās leading cases on sex discrimination, the text of the
Equal Protection Clause does not subject state laws to diļ¬erent lev-
els of judicial scrutiny. See Craig v. Boren, 429 U.S. 190, 211ā12 (1976)
(Stevens, J., concurring). The Clause ārequires every State to gov-
ern impartially,ā and it ādoes not direct the courts to apply one
standard of review in some cases and a diļ¬erent standard in other
cases.ā Id.; see also United States v. Virginia, 518 U.S. 515, 570 (1996)
(Scalia, J., dissenting) (calling tiers of scrutiny āmade-up testsā);
Whole Womanās Health v. Hellerstedt, 579 U.S. 582, 638 (2016)
(Thomas, J., dissenting) (calling tiers of scrutiny āincreasingly
meaningless . . . formalismā). Moreover, some of the Supreme
Courtās most recent (and signiļ¬cant) equal protection precedents
donāt apply the tiers of scrutiny. E.g., Obergefell v. Hodges, 576 U.S.
644, 672ā76 (2015).
Nonetheless, the Supreme Court has established the tiers of
scrutiny, and lower courts must apply that doctrine the best we can.
In doing so, I think we must appreciate that the tiers of scrutiny are
āno more scientiļ¬c than their names suggest.ā Virginia, 518 U.S. at
567 (Scalia, J., dissenting). They should be āguidelines informing
our approach to the case at hand, not tests to be mechanically ap-
plied.ā Williams-Yulee v. Fla. Bar, 575 U.S. 433, 457 (2015) (Breyer, J.,
concurring). To that end, when we are asked to apply heightened
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22-11707 BRASHER, J., Concurring 3
scrutiny on novel facts, we need to ensure that the purposes of the
doctrine warrant that approach.
In my view, many judges have mechanically applied inter-
mediate scrutiny to laws like Alabamaās without considering the
reasons we subject sex classiļ¬cations to heightened scrutiny. Con-
sider the Eighth Circuitās decision in Brandt by & through Brandt v.
Rutledge, 47 F.4th 661 (8th Cir. 2022). There, the court concluded
that Arkansasās comparable law discriminates based on sex be-
cause, referring to cross-sex hormones, it said that āmedical proce-
dures that are permitted for a minor of one sex are prohibited for
a minor of another sex.ā Id. at 669. But the court ignored the lawās
ban on puberty blockers, which applies the same way to both sexes.
And, more fundamentally, the court did not explain how applying
heightened scrutiny to a law that regulates sex-speciļ¬c medical in-
terventions is consistent with the reasons the Supreme Court cre-
ated that standard.
Turning back to this case, Alabamaās law is replete with sex-
related language. But, even though the statute uses sex-related lan-
guage, I think it is wrong to say that the statute classiļ¬es based on
sex. The law regulates drugs that ātreat a discordance between [an]
individualās sex and sense of gender identity.ā Ala. Code Ā§ 26-26-
2(2). The law deļ¬nes āsexā as ā[t]he biological state of being male
or female, based on the individualās sex organs, chromosomes, and
endogenous hormone proļ¬les.ā Id. Ā§ 26-26-2(3). Then the law pro-
hibits various treatments āfor the purpose of attempting to alter
the appearance of or aļ¬rm the minorās perception of his or her
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4 BRASHER, J., Concurring 22-11707
gender or sex, if that appearance or perception is inconsistent with
the minorās sex as deļ¬ned in this act.ā Id. Ā§ 26-26-4(a).
I see the word āsexā in this law. But I donāt see a sex classiļ¬-
cationāat least, not as the idea of a sex classiļ¬cation appears in our
equal-protection caselaw. Instead, it seems to me that this sex-re-
lated language classiļ¬es between, on the one hand, those minors
who want these drugs to treat āa discordance between [their] sex
and sense of gender identityā and, on the other hand, those minors
who want these drugs to treat a diļ¬erent condition. The Equal Pro-
tection Clause āis essentially a direction that all persons similarly
situated should be treated alike.ā City of Cleburne, Tex. v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985). So the right question under the
Equal Protection Clause is whether these two groupsāthose who
want to use these drugs to treat a discordance between their sex
and gender identity and those who want to use these drugs to treat
other conditionsāare similarly situated.
That question isnāt one that seems suited to heightened scru-
tiny. The Equal Protection Clause prohibits āgiv[ing] a mandatory
preference to members of either sex over members of the other.ā
Reed v. Reed, 404 U.S. 71, 76 (1971). We apply heightened scrutiny to
sex classiļ¬cations because of an intuition that, ā[r]ather than rest-
ing on meaningful considerations, statutes distributing beneļ¬ts and
burdens between the sexes in diļ¬erent ways very likely reļ¬ect out-
moded notions of the relative capabilities of men and women.ā
City of Cleburne, 473 U.S. at 441. When we apply heightened scru-
tiny to a statute that classiļ¬es based on sex, the point is to ascertain
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22-11707 BRASHER, J., Concurring 5
whether the classiļ¬cation is based on ātraditional, often inaccurate,
assumptions about the proper roles of men and women.ā Miss.
Univ. for Women v. Hogan, 458 U.S. 718, 725ā26 (1982). We are also
seeking to ensure that sex is not being used as an āinaccurate proxy
for other, more germane bases of classiļ¬cation.ā Craig, 429 U.S. at
198.
None of these rationales apply to the line drawn in Ala-
bamaās statute. It doesnāt distribute beneļ¬ts or burdens between
men and women or arguably use sex as a proxy for other interests.
It bans a course of treatmentāpuberty blockers and hormonesā
for a particular condition that aļ¬ects both boys and girls. Another
way to think about it: an injunction against the enforcement of Al-
abamaās law under equal-protection principles will not equalize
burdens or beneļ¬ts 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 pur-
poses or allow them for all purposes.
For its part, the district court applied heightened scrutiny on
the theory that Alabamaās statute discriminates based on a sex ste-
reotype because it targets medical interventions for transgender
people, i.e., those who feel a āa discordance between [their] sex and
sense of gender identity.ā The district court cited Glenn v. Brumby,
663 F.3d 1312, 1320 (11th Cir. 2011), for this proposition, but I think
it misread that precedent. 1 In Glenn, we concluded that a public
1 I donāt fault the district court for reaching the conclusion that it did. The
district court did an admirable job with a difficult case on an expedited
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6 BRASHER, J., Concurring 22-11707
employer engaged in sex discrimination by ļ¬ring a transgender em-
ployee who was born a man because the employee began wearing
stereotypical womenās clothing. Id. at 1314. The employer allowed
biological women to wear stereotypical womenās clothing, but not
biological men. We held that the employer had engaged in sex dis-
crimination under the Equal Protection Clauseānot because it
ļ¬red a transgender employeeābut because it ļ¬red an employee
āon the basis of gender-based behavioral norms.ā Id. at 1316ā17. By
ruling against that practice under the circumstances of that case,
we required the employer to treat men and women equally, no mat-
ter their clothing choices.
Unlike the employerās decision in Glenn, Alabamaās statute
does not ļ¬t the mold of a sex-based stereotype. The statute isnāt
based on a socially constructed generalization about the way men
or women should behave. It does not reinforce an āassumption[]
about the proper roles of men and womenā in our society. Hogan,
458 U.S. at 725ā26. And it doesnāt reļ¬ect societyās ānotions of the
relative capabilities of men and women.ā City of Cleburne, 473 U.S.
at 441. To be sure, the statuteās classiļ¬cation reļ¬ects the govern-
mentās 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 ānot a stereotype.ā Nguyen v. INS,
533 U.S. 53, 68 (2001).
timeframe. One of the benefits of the appellate process is that we have more
time and resources to assess a legal question, which sometimes yields a differ-
ent result.
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22-11707 BRASHER, J., Concurring 7
The district courtāviewing this case through the lens of sex
stereotypingādid not make any ļ¬ndings on whether the state was
justiļ¬ed in treating people diļ¬erently because they want these
drugs to treat a discordance between their sex and gender identity
instead of some other condition. But the state has identiļ¬ed many
reasons for drawing that line. For example, the record reļ¬ects that
other countries are regulating the drugs diļ¬erently for these pur-
poses, and the FDA has not approved them for this purpose alt-
hough it has for others. I cannot say that those reasons fail the leni-
ent standard of rational basis review. See Jones v. Gov. of Fla., 975 F.3d
1016, 1034ā35 (11th Cir. 2020).
II.
Although I believe rational basis scrutiny likely applies, I also
think that, even if Alabamaās statute triggered intermediate scru-
tiny, it would likely survive that heightened scrutiny.
Intermediate scrutiny under the Equal Protection Clause
does not require us to ask whether a law is good or bad policy, but
whether a government has a good reason for using a sex-based clas-
siļ¬cation in a law. The relevant question is whether āthe classiļ¬ca-
tion serves āimportant governmental objectives and that the discrim-
inatory means employedā are āsubstantially related to the achieve-
ment of those objectives.āā Hogan, 458 U.S. at 724 (quoting Wengler
v. Druīists Mutual Ins. Co., 446 U.S. 142, 150 (1980)) (emphasis
added). As I discuss above, the purpose of this heightened scrutiny
is to ensure that laws based on sex classiļ¬cations arenāt using those
classiļ¬cations because of āoutmoded notions of the relative
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8 BRASHER, J., Concurring 22-11707
capabilities of men and women.ā City of Cleburne, 473 U.S. at 441.
Instead, the use of sex must reļ¬ect that it is a āmeaningful consid-
eration[]ā on which the law is based. Id. And so, under intermediate
scrutiny, the governmentās burden is to establish āan āexceedingly
persuasive justiļ¬cationā for the classiļ¬cation.ā Hogan, 458 U.S. at 724
(quoting Kirchberg v. Feenstra 450 U.S. 455, 461 (1981)) (emphasis
added).
Assuming the classiļ¬cation in this law is subject to interme-
diate scrutiny, I believe the state probably has an āexceedingly per-
suasive justiļ¬cationā for regulating these drugs diļ¬erently when
they are used to treat a discordance between an individualās sex and
sense of gender identity than when they are used for other pur-
poses. See Sessions v. Morales-Santana, 582 U.S. 47, 58 (2017) (quoting
Virginia, 518 U.S. at 531). The record reļ¬ects that the use of puberty
blockers and hormones for this purpose speciļ¬cally carries poten-
tially uncertain risks. The record also reļ¬ects that there is uncer-
tainty about how to tell which patients need these interventions for
this purpose and which donāt. Although further fact ļ¬nding in this
litigation will test the plausibility of those concerns, Alabama
doesnāt have to conclusively prove these things to have an im-
portant governmental interest. Intermediate scrutiny permits āthe
legislature [to] make a predictive judgmentā based on competing
evidence. Brown v. Entmāt Merchs. Assān, 564 U.S. 786, 799ā800 (2011)
(discussing relative burdens of intermediate and strict scrutiny).
Likewise, I think the stateās interest is suļ¬ciently related to
the sex classiļ¬cation in the law to the extent there is one. Assuming
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22-11707 BRASHER, J., Concurring 9
this statute involves a sex-based classiļ¬cation, it does so because
there is no other way to regulate treatments for āa discordance be-
tween [an] individualās sex and sense of gender identityā without
drawing such a distinction. Alabama would have to use sex-based
language to regulate those treatments even if it wanted to subsidize
them instead of banning them. So, if intermediate scrutiny applied
here, the āsuļ¬ciently relatedā question collapses into the state in-
terest question: it is whether Alabama has an important govern-
mental interest in regulating the use of puberty blockers and hor-
mones for āa discordance between [an] individualās sex and sense
of gender identityā but not for other uses. Because the record re-
ļ¬ects that the state has that kind of interest, the statuteās classiļ¬ca-
tion likely satisļ¬es intermediate scrutiny.
The plaintiļ¬s argue, in part, that Alabama is not justiļ¬ed in
banning these treatments because there are less restrictive alterna-
tives to a ban. But I donāt think that is how intermediate scrutiny
works under the Equal Protection Clause. Consider how the Su-
preme Court applied intermediate scrutiny in Craig v. Boren, 429
U.S. 190 (1976). There, a state law prohibited sales of alcohol to
men between the ages of eighteen and twenty but not women in
that age range. Id. at 191ā92. The Court accepted that the goal of
this lawāāthe enhancement of traļ¬c safetyāāis an important in-
terest. Id. at 199ā200. But it held that the government did not have
suļ¬cient evidence that a āgender-based distinction closely serves
to achieve that objective.ā Id. at 200. The Court in Craig never asked
whether the stateās decision to ban under-21-year-old men from
drinking alcohol was justiļ¬ed as compared to some less restrictive,
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10 BRASHER, J., Concurring 22-11707
but equally sex-based, alternativeāsuch as making men take addi-
tional driving classes or the like. Instead, the Court assessed only
whether the sex-based classiļ¬cation ļ¬t closely enough to the pur-
poses of the law. Likewise, here, I think we can resolve the plain-
tiļ¬sā equal protection claim by assessing whether the state has an
interest in classifying based on sex without also asking whether,
even if the state were allowed to classify based on sex, the state
could achieve its objective with some lesser restriction.
In short, assuming this law is subject to intermediate scru-
tiny, I think it likely passes. On this record, it seems clear that the
state has an interest in regulating these drugs diļ¬erently when they
are prescribed to treat a discordance between sex and gender than
when they are prescribed to treat other conditions. And the state
cannot do that without drawing the lines it has drawn in this stat-
ute.
III.
Whether rational basis or intermediate scrutiny applies, I be-
lieve this appeal comes out the same way: the state will likely pre-
vail on the merits. Future ļ¬ndings of fact in the district court may
establish otherwise. But at this stage, the plaintiļ¬s have not carried
their burden entitling them to a preliminary injunction. I concur.