". . . and having done all . . . stand firm." Eph. 6:13


Could Dobbs Be Used to Protect Children from Gender Transitions?

June 29, 2022

Alabama Attorney General Steve Marshall (R) asked the 11th Circuit Court of Appeals to reinstate the state’s Vulnerable Child Compassion and Protection (VCAP) Act, a bill similar in function to the Save Adolescents from Experimentation (SAFE) Act,which went into effect on May 8. The Southern Poverty Law Center (SPLC) sued to block the bill, and a judge agreed to partially block the law. However, due to strange filing practices — SPLC lawyers sued in the Northern District Court of Alabama, voluntarily withdrew the filing, and then refiled an “all but identical” lawsuit in the Middle District Court of Alabama — the three federal district courts in Alabama are investigating the SPLC for judge shopping.

Meanwhile, the appeals process for VCAP proceeds. Marshall’s argument relies heavily on the Supreme Court’s recent Dobbs v. Jackson Women’s Health decision, which overruled Roe v. Wade, specifically their standard that implicit rights protected by the Due Process Clause of the 14th Amendment must be “deeply rooted in this Nation’s history and tradition.”

The Court stated in Dobbs:

“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).”

Marshall based his arguments on this language repeatedly. He used it to argue against a right to transitioning treatments. “Transitioning treatments are neither “deeply rooted” nor “implicit in the concept of ordered liberty.” Rather, “they are ‘decidedly modern phenomena,’” he said. “And when applied to children, they are outright experimental.”

He also used it to show that opposing counsel failed to demonstrate how there was a right to transitioning treatments. “Neither the district court nor Plaintiffs even attempted to show how such a right is deeply rooted in our nation’s history and traditions, which it obviously is not,” he said. Additionally, “the court identified no evidence that such a purported right is deeply rooted in our history or traditions.” Therefore, he concluded, “no one — adult or child — has a right to transitioning treatments that is deeply rooted in our Nation’s history and tradition.”

Alabama’s argument in defense of their law to protect gender transition procedures relied on Dobbs repeatedly. In addition to the “Due Process Clause” line of argument, their brief also invoked the Dobbs ruling to argue:

  • “States are not required to forfeit their right to regulate medicine whenever a parent and some critical mass of medical interest groups have a different opinion.”
  • Parents do not necessarily “have a fundamental right as parents to obtain interventions for their children that neither they nor their children have a personal, fundamental right to access — particularly where the novel interventions threaten children’s ‘health and safety.’”
  • “The Act does not discriminate based on sex or gender identity” because “‘The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny.’”

The Office of the Attorney General in Alabama has taken full advantage of the Supreme Court’s decision to cede power to set abortion policy back to the states. It has taken the court’s logic and transferred to a new application: a defense of “the State’s compelling interest in protecting children from dangerous, experimental treatments.”

Joshua Arnold is a senior writer at The Washington Stand.