Circuit Court Allows Alabama to Enforce Law Protecting Minors from Gender Transitions

Alabama may resume enforcement of a law protecting minors from the harmful effects of gender transition procedures, the Court of Appeals for the 11th Circuit ruled in a brief order Thursday. The Vulnerable Child Compassion and Protection (VCAP) Act has been blocked in federal court since May 2022 amid an unusually eventful 18 months of legal pinball and faces a hearing by the full 11th Circuit later this year. “It’s been a long, hard road,” Becky Gerritson, executive director of the Eagle Forum of Alabama (EFA), said on “Washington Watch.” “There still will be a trial later on this year, but this is very good news.”

In August, a three-judge panel of the 11th Circuit vacated a federal district judge’s preliminary injunction against the VCAP Act in a unanimous opinion. Given the “strong disagreement between the parties over what is best for those children,” they stated, “these types of issues are quintessentially the sort that our system of government reserves to legislative, not judicial, action.”

The panel decided the judge had come to the wrong conclusion on both constitutional questions disputed in the case. On Substantive Due Process, “the district court divined” a parental “right to ‘treat [one’s] children with transitioning medications subject to medically accepted standards’” — “without adequate historical support.” On Equal Protection, “the district court determined that the law classifies on the basis of sex, when in reality the law simply reflects real, biological differences between males and females and equally restricts the use of puberty blockers and cross-sex hormone treatment for minors of both sexes.”

However, the lower court’s preliminary injunction remained in effect while the Southern Poverty Law Center (SPLC), who challenged the law, and the U.S. Department of Justice (DOJ), who intervened in the suit, appealed their decision to the full circuit court. Alabama Attorney General Steve Marshall (R) then asked the 11th Circuit to allow the state to enforce the law while the case is pending — a request the court granted on Thursday.

“This is a significant victory for our country, for children, and for common sense,” said Marshall. “The physical and psychological safety of our children can now be better protected from these untested and life-altering chemical and surgical procedures through the implementation of the Alabama Vulnerable Child Compassion and Protection Act.”

“This is great news. ‘Gender-affirming care’ — and I say that with quotes — has been leading healthy children into a world of misery,” Gerritson responded. “So, now the law will go into effect, and there will be the medical protocols that will be able to slowly wean these children off.” As a result, she said, children’s “bodies hopefully maintain their fertility. Girls will not be losing their voices. They won’t be subjugated to a lifetime of dependency on prescription drugs.”

As evidence that Alabama’s law was urgently needed, Gerritson appealed to the “known FDA reported side effects” of puberty blockers, which are “being used off label,” prescribed for “normal, healthy children.” For example, side effects of Lupron, a common puberty blocker, include “halting social, sexual, emotional, and intellectual development, arresting bone growth, decreased bone thickness, prevention of brain maturation, and causing immature growth of sexual organs and infertility. … It’s good that we are stopping these.”

The known side effects of cross-sex hormones are similarly ominous, continued Gerritson. They include “permanent sterility, and voice changes, loss of facial hair … strokes, liver disease, blood clots, diabetes, migraines, [and] heart disease,” she listed. On the other hand, “there is not one long-term, comprehensive study that shows that these interventions help the mental health of these children,” she added.

As a result of the law, Gerritson hoped “that the tide, socially, will begin to turn, and that people will realize they need to focus on the mental health” of children, embracing “compassionate, talk therapy to get to the root of why they hate their bodies, and find out if there are any other medical conditions like autism or compulsive obsessive disorders.”

These hoped-for salutary effects are what inspired Gerritson and others to keep fighting to protect Alabama’s children, even when it turned into a “long, hard road.”

Indeed, Gerritson’s nonprofit experienced the weaponization of the Biden administration DOJ in August 2022. Soon after intervening in the SPLC’s lawsuit against Alabama, the DOJ subpoenaed the EFA — which was not a party in the lawsuit, and which has one-and-a-half paid employees — demanding that they turn over 11 separate forms of documentation, including internal white papers, policy goals, meeting minutes, and mailings, stretching all the way back to 2017, on the theory that the EFA may have played a role in the law’s passage. In response, the EFA cited rules of outside discovery by which the DOJ was only entitled to information that was “relevant to any party’s claim or defense and proportional to the needs of the case.” In the end, the judge quashed the DOJ’s subpoena against EFA as overly broad.

Nor was the DOJ’s targeting of EFA the only irregularity in the case. In May of 2022, SPLC attorneys filed a lawsuit in the Northern District of Alabama, only to voluntarily withdraw the case days later and refile it nearly verbatim in the Middle District of Alabama. Senators on the Judiciary Committee remarked that SPLC attorneys withdrew the case because they “Fail[ed] to secure a sympathetic Judge.” In the end, the case was reassigned to the original judge, who granted SPLC their preliminary injunction — which was later vacated by the 11th Circuit — but recommended they be investigated for “judge shopping.”

SPLC’s legal team who filed the case (Eknes-Tucker v. Marshall) was indeed investigated for judge shopping (see in re: Vague). After more than a year, the three-judge panel finally issued their report on October 3, 2023; however, it remains subject to further modifications by the court and currently remains sealed.

Nevertheless, according to documents sleuthed out by the Ethics and Public Policy Center’s (EPPC) Ed Whelan, the lawyers being investigated have challenged the report’s legal conclusions — but not its factual findings — on appeal and have meanwhile asked the court to keep the report sealed, as its contents would hurt their professional reputation. These facts led Whelan to conclude, “It’s evident from their filings (as well, of course, from the very fact that they are challenging the report on appeal) that the panel concluded that they did indeed engage in improper judge-shopping.”

Due to the SPLC’s chaotic attempts to change the judicial venue, the presiding district judge wasn’t ready to issue an opinion by the law’s effective date. So, technically, the VCAP Act went into effect for several days in May 2022 before the judge issued a preliminary injunction against it. That injunction remained in place until August 2023, by which time two other appeals courts had ruled on the merits of similar laws to protect minors from gender transition procedures. The Eighth Circuit had upheld a preliminary injunction against Arkansas’s SAFE Act, passed in 2021, but the Sixth Circuit had ruled against preliminary injunctions against similar laws passed in Tennessee and Kentucky in 2023.

Faced with decisions from other circuits pointing in opposite directions, the 11th Circuit panel chose to side with the Sixth Circuits legal reasoning and vacated the district judge’s preliminary analysis, ruling that he “erred” in his legal analysis. In response, a district judge in the Northern District of Georgia, which is also part of the 11th Circuit, stayed the preliminary injunction she had just issued against that state’s SAFE Act-style law.

However, the preliminary injunction remained in effect for a limited window, giving the challengers an opportunity to appeal, and for the appellate court to make a ruling. This is why, although the 11th Circuit vacated the preliminary injunction in August, Alabama could not enforce the law until the court allowed them to do so.

In the interim, the Biden DOJ asked the presiding federal judge to pause the lawsuit — which is now proceeding beyond the preliminary stage to an actual trial — because of appeals proceeding in other jurisdictions. In addition to the SPLC and DOJ appealing the appellate panel’s decision to the full 11th Circuit, the DOJ has also appealed to the Supreme Court, asking them to review the Sixth Circuit’s decision upholding similar laws in Tennessee and Kentucky. In a decision issued after Christmas, the district judge declined to pause the case until a higher court actually agreed to hear the appeal. A pause in proceedings “may indeed be the most efficient way to proceed in this case, but not unless a higher court signals that it will decide the governing standard of review,” he wrote.

Meanwhile, for now, Alabama may enforce the law, which protects minors with gender dysphoria from the harmful effects of puberty blockers, cross-sex hormones, and gender transition surgeries. “It’s time to step back from medical high-risk interventions, and do talk therapy, and help these children,” said Gerritson.