An Alabama law protecting minors from gender transition procedures remains in effect after the U.S. Court of Appeals for the Eleventh Circuit declined to rehear the case. Alabama Attorney General Steve Marshall (R) called the decision “a big win to protect children from these untested and life-altering chemical and surgical procedures.”

Transgender activists have kept Alabama in court for more than two years, ever since the spring of 2022, when the Alabama legislature enacted the Vulnerable Child Compassion and Protection Act to protect minors from puberty blockers, cross-sex hormones, and gender transition surgeries.

After an initial, pyrrhic victory (the district judge granted a partial, preliminary injunction against the law but cited the lawyers for judge-shopping), challengers to this commonsense law have scored a steady string of defeats. In August 2023, a three-judge panel of the Eleventh Circuit unanimously ruled in Alabama’s favor, vacating the district court’s preliminary injunction. Activist lawyers with the Southern Poverty Law Center (SPLC) (and the U.S. Department of Justice, who intervened in the lawsuit) appealed to the full Eleventh Circuit (an “en banc” appeal), temporarily delaying the enforcement of the panel’s order. However, the full Eleventh Circuit allowed the law to take effect in January 2024.

When cases are appealed from a federal district court to the appellate level, they are typically reviewed by a panel of three judges on that court. This helps distribute the workload. If the litigants object to the verdict rendered by that three-judge panel, they can either ask the entire circuit court to re-hear the case (“en banc”) or appeal to the Supreme Court.

On Wednesday, the Eleventh Circuit briefly announced it would not rehear the case, “a majority of the judges in active service on this Court having voted against granting rehearing en banc.” The court issued no opinion, but two concurring opinions and three dissenting opinions accompanied the order, totaling 171 pages.

The order did not provide the roll call for the vote, in which 11 of the court’s 12 judges participated, but four judges participated in the dissents, which means the tally must have been 6-5 or 7-4.

The court’s most recent member, Judge Nancy Abudu, recused herself from consideration of this case. Before she was appointed to the Eleventh Circuit by President Joe Biden in 2023, Abudu worked as strategic litigation director of the SPLC, where she oversaw the organization’s challenge to Alabama’s law.

All three dissents focused not on equal protection but on substantive due process, alleging that parents have a right to put their children on puberty blockers and cross-sex hormones. “Should a parent of a child be prevented from seeking medical care because of the sex of their child?” asked Judge Charles R. Wilson, who recently dissented from a decision to reinstate the Florida SAFE Act, and whose dissent was joined by Judge Adalberto Jordan.

Jordan’s dissent, which was joined by Judges Robin S. Rosenbaum and Jill A. Pryor, criticized the panel for “defining the asserted right in too granular a way.” The Eleventh Circuit panel had cited precedents that “a substantive due process analysis must focus on the specific right asserted, rather than simply rely on a related general right” and had concluded that there was no right to “treat [one’s] children with transitioning medications subject to medically accepted standards.”

Rosenbaum’s dissent, joined by Judge Jill Pryor and in part by Judge Jordan, waxed warmest. “If ever a case warranted en banc review, this is it,” she declared. “The panel opinion’s reasoning strips every parent in this Circuit of their fundamental right to direct that their children receive any medical treatment (no matter how well-established and medically endorsed) — except for those medical treatments in existence as of 1868.”

Rosenbaum continued spicily, “Yes, 1868 — before modern medicine. So in the states of Alabama, Florida, and Georgia, blistering, blood-letting, and leeches are in, but antibiotics, antivirals, and organ transplants are out. Yet nothing in the law handcuffs us to nineteenth-century medicine.”

These colorful condemnations are red herring, of course. Alabama’s law renounced not modern medical science but post-scientific experimentation. The panel distinguished gender transition procedures from regular medical treatment because it is different.

In her concurrence, Judge Barbara Lagoa responded to Rosenbaum, “Frankly, whether puberty blockers and cross-sex hormones qualify as ‘life-saving’ treatment — or even ‘medical care’ — is a policy question informed by scientific, philosophical, and moral considerations. Neither an unelected district judge nor unelected circuit judges should resolve that debate for the State of Alabama.”

Lagoa recited the WPATH files, the Cass Report, and four stories of detransitioners as further reasons for caution in mandating gender transition procedures by judicial fiat.

Last but not least, Chief Judge William H. Pryor, Jr. delivered a surprising denunciation of substantive due process itself, or at least the expansion of it. “The doctrine of substantive due process does violence to the text of the Constitution, enjoys no historical pedigree, and offers judges little more than shifting and unilluminating standards with which to protect unenumerated rights,” he wrote. “Unelected judges with life tenure enjoin enforcement of laws enacted by elected representatives following regular procedures, all in the name of fundamental rights that the Constitution never names but allegedly secures.”

Of course, Pryor is in no position to repudiate the doctrine of substantive due process; only the Supreme Court can do that. In lieu of that, he reached a more modest conclusion, “In the absence of clear guidance from the Supreme Court, we should hesitate to expand the reach of this flawed doctrine.”

While these five opinions give insight into the perspectives of various judges on the Eleventh Circuit, none of them were signed by a majority of the court. They help to advance the conversation, but they are not binding.

Additionally, only six of 11 judges (two for the decision, four against) joined any of the opinions, not enough to form a majority. This injects a note of caution into any conclusions drawn from their order. It could be that a majority of judges agreed with the panel’s decision. It could be that some members of the court preferred not to add to the court’s caseload by agreeing to re-hear the entire case. It could be that the judges were looking ahead to the Supreme Court hearing and deciding a challenge out of the Sixth Circuit to Tennessee’s SAFE Act in their next term, a decision that would almost certainly override whatever decision the Eleventh Circuit reached in this case.

For now, however, Alabama’s law remains in effect, as well as similar laws in Georgia and Florida. As Attorney General Marshall said, this is a “win to protect children.”