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State appeals to lift injunction on law criminalizing treatment of transgender youth

Attorneys for the plaintiffs argued that the state is criminalizing a treatment that is the standard of care, and is discriminating against transgender youth.

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Alabama made its case Friday to the 11th Circuit Court of Appeals that it should be allowed to enforce its law criminalizing medical treatments for transgender minors while awaiting a ruling from a lower court.

U.S. District Judge Liles Burke, a Trump appointee, issued an injunction earlier this year, days after the law went into effect, noting the likelihood of plaintiffs to succeed on the merits of the case.

The state argued before Burke, and carried that argument before the 11th circuit, that medical treatments for transgender youth pose risks that give the state the authority to prohibit the procedures.

“The risks from these treatments are numerous,” said Solicitor General Edmund LaCour, who represented the state. “They include diminished bone density, increased risks of cardiovascular disease, stroke and diabetes – and what the District Court noted in page three of its preliminary injunction opinion – loss of fertility and sexual function. The plaintiffs and the United States think that these are acceptable risks for children to face, and the state disagrees.”

Judge Andrew L. Brasher, identified the plaintiff’s argument that the law violates the Equal Protection Clause as the strongest argument to overcome.

Lacour said the law doesn’t discriminate against transgender youth because cisgender youth have taken the transitioning medications before halting medication and choosing to align with their biological sex.

When it comes to cross-sex hormones, LaCour said the nature of the treatments rules out the argument that it’s sex discrimination.

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“In this instance, it’s only possible for girls to take testosterone for the purposes of transitioning, and that is not the same treatment as a boy taking testosterone to treat an endocrine disorder,” LaCour said. 

Attorneys for the plaintiffs continued their arguments that the medical treatments are recognized by major medical associations and are crucial for helping mental health.

“The state has violated a parent’s fundamental right recognized by the Supreme Court for more than 100 years, to make decisions concerning the care, custody and control of their children,” said Jeffrey Doss, attorney for the plaintiffs. “The state has substituted its judgment for that of parents in consultation with their treating physicians, to decide what is in the best interest of their children by weighing the exact risks identified by the state of Alabama against the recognized therapeutic benefits that the evidentiary record has revealed.”

Judge Barbara Lagoa questioned whether parents could insist on experimental drugs and treatments for their children.

But Doss said that this treatment being banned is the “standard of care” for this medical condition and not an experimental treatment. 

“When you have a safe and effective treatment, with therapeutic benefit, that is the standard of care — then, in that context, a parental judgment concerning medical treatment ought to be protected,” Doss said.

Lagoa also brought up “detransitioners,” which the state has highlighted as evidence that the minors receiving treatment do not have the maturity to make potentially irreversible healthcare decisions.

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“You don’t see that that is a valid concern?” Lagoa asked Doss. “That there are detransitioners and that they do have stories where they were not advised what the treatment entailed and what the repercussions would be?”

Doss resounded that the statistics provided by the state regarding detransitioning youth were before puberty, not at the onset of puberty.

“The evidence presented to the District Court, your Honor, was, once they hit puberty, the likelihood of detransitioning was very, very, very, very, very low,” Doss said. “Like I don’t even know if it was recognized as a risk.”

The court did not reveal a timeline of when it would rule on the appeal. The trial is expected to move forward in district court in the fall of 2023.

Jacob Holmes is a reporter at the Alabama Political Reporter. You can reach him at [email protected]

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