Paul Eknes-Tucker v. Governor of the State of Alabama

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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,

Plaintiffs-Appellees,

versus

GOVERNOR, OF THE STATE OF ALABAMA,

ATTORNEY GENERAL, STATE OF ALABAMA,

DISTRICT ATTORNEY, FOR MONTGOMERY COUNTY,

DISTRICT ATTORNEY, FOR CULLMAN COUNTY,

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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 WILLIAM PRYOR, Chief Judge, WILSON, JORDAN,

ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,

and BRASHER, Circuit Judges. ∗

BY THE COURT:

A petition for rehearing having been filed and a mem-

ber of this Court in active service having requested a poll on

whether this case should be reheard by the Court sitting en

banc, and a majority of the judges in active service on this

Court having voted against granting rehearing en banc, it is

ORDERED that this case will not be reheard en banc.

∗ Judge Nancy Abudu recused herself and did not participate in the en banc

poll.

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WILLIAM PRYOR, Chief Judge, respecting the denial of rehearing en

banc:

I agree with the decision not to rehear this appeal en banc

and write only to respond to a dissenting opinion. Our respected

colleague argues that the “complex[]” doctrine of substantive due

process is “hard,” Jordan Dissent at 1, but the difficulty is inevitable.

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. Unmoored from text and history,

the drift of the doctrine—“neither linear nor consistent,” id. at 20—

is predictable. So too is its patchy legacy: unelected judges with life

tenure enjoin enforcement of laws enacted by elected representa-

tives following regular procedures, all in the name of fundamental

rights that the Constitution never names but allegedly secures. In

the absence of clear guidance from the Supreme Court, we should

hesitate to expand the reach of this f lawed doctrine. And our Court

wisely declines to do so here.

As John Hart Ely famously put it, the phrase “substantive

due process” is a “contradiction in terms,” like “‘green pastel red-

ness.’” JOHN HART ELY, DEMOCRACY AND DISTRUST 18 (1980). The

Fifth and Fourteenth Amendments prohibit the federal and state

governments from depriving any person of life, liberty, or property

“without due process of law.” That constitutional guarantee is

about legal procedures, not the substance of laws. For that reason,

the Supreme Court has declared—unanimously—that the

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“language” of the Due Process Clauses does not “suggest[],” let

alone support, the “substantive content” that courts often have

poured into them. Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214,

225–26 (1985) (citation and internal quotation marks omitted). So,

the Due Process Clauses are a “most curious place” to ground all-

but-indefeasible protections for fundamental rights. McDonald v.

City of Chicago, 561 U.S. 742, 809 (2010) (Thomas, J., concurring in

part and in the judgment). Yet the doctrine of substantive due pro-

cess shields individuals from even “general and prospective legisla-

tion enforced with all proper procedure.” Nathan S. Chapman &

Michael W. McConnell, Due Process as Separation of Powers, 121

YALE L.J. 1672, 1792 (2012).

In addition to incorporating against the States most of the

protections that the Bill of Rights guarantees against the federal

government, the doctrine bars state infringement of “fundamental

rights that are not mentioned anywhere in the Constitution.” Dobbs

v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2246 (2022). That bar

is not absolute, at least in theory; a challenged law may deprive an

individual of a fundamental right if it satisfies strict scrutiny. See

Waldman v. Conway, 871 F.3d 1283, 1292 (11th Cir. 2017). But strict

scrutiny does not pertain to either the form of adjudication that

must accompany the deprivation or the procedures that the adju-

dication must observe—that is, to process. See Ryan C. Williams, The

One and Only Substantive Due Process Clause, 120 YALE L.J. 408, 419

(2010). The condition rests instead on the importance of the goal

of the law and the narrowness of its means—that is, on nonproce-

dural grounds. See Waldman, 871 F.3d at 1292. And even when no

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fundamental interest is at stake, the doctrine bars any “arbitrary

and oppressive exercise of government power” and all government

conduct that “shocks the conscience.” Id. (citation and internal

quotation marks omitted).

The doctrine of substantive due process has “long been con-

troversial,” Dobbs, 142 S. Ct. at 2246, because its potent strictures

on democratic self-governance have “no footing in constitutional

text” or history. Sosa v. Martin County, 57 F.4th 1297, 1305–06 (11th

Cir. 2023) (en banc) (Newsom, J., concurring). Under the “tradi-

tional view,” the Founders would have understood the Due Process

Clause of the Fifth Amendment either not to “constrain the legis-

lature at all” or to “limit the legislature’s discretion in prescribing

certain modes of judicial procedure.” Williams, supra, at 454. That

traditional view remains dominant. See, e.g., MICHAEL STOKES

PAULSEN & LUKE PAULSEN, THE CONSTITUTION 216 (2015) (due pro-

cess required “executive branch and judicial officials [to] act in ac-

cordance with the legal rules—laws—that ha[d] been made in ad-

vance of the events at hand”); Chapman & McConnell, supra, at

1679; Timothy M. Tymkovich, Joshua Dos Santos & Joshua J.

Craddock, A Workable Substantive Due Process, 95 NOTRE DAME L.

REV. 1961, 1966–67 (2020). Disagreement on the edges of the scope

of the right should not obscure the bottom line: substantive due

process is an ahistorical “legal fiction.” McDonald, 561 U.S. at 811

(Thomas, J., concurring in part and in the judgment). And nothing

relevant had changed by 1868. Even then, there was almost no his-

torical support for the policy-second-guessing function that the

doctrine performs today. See Chapman & McConnell, supra, at

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1679–80, 1801, 1807; Williams, supra, at 499; Tymkovich et al., su-

pra, at 1972–73.

Some scholars argue that the phrase “due process of law”

was a “legal term of art with substantive content” when the Four-

teenth Amendment was ratified in 1868. See, e.g., Williams, supra,

at 496 (presenting the argument). But that argument is “hardly air-

tight,” id., and “[n]o evidence” establishes that the word “process”

“meant something different” in 1868, set aside 1791, from what it

does now, see ELY, supra, at 18. To trained observers no less than the

ordinary man, the choice of the phrase “due process of law” to af-

ford constitutional protection to substantive rights would have

seemed “very odd.” Chapman & McConnell, supra, at 1725.

A constitutional doctrine that lacks foundation in text or his-

tory must draw its content from another source, and substantive

due process has offered judges little more than “scarce and open-

ended” platitudes. Collins v. City of Harker Heights, 503 U.S. 115, 125

(1992). The doctrine has been said to protect rights that comprise

the “essence of a scheme of ordered liberty,” McDonald, 561 U.S. at

760 (plurality opinion) (citation and internal quotation marks omit-

ted), or to bar state action that “shocks the conscience,” Waldman,

871 F.3d at 1292 (citation and internal quotation marks omitted).

These “vague shibboleths” clarify little. Sierra v. City of Hallandale

Beach, 996 F.3d 1110, 1128 (11th Cir. 2021) (Newsom, J., concur-

ring). That feature of substantive due process sits dangerously

alongside the power that the doctrine gives life-tenured judges: to

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declare unconstitutional, and enjoin enforcement of, duly enacted

laws of elected representatives of the People.

Unconstrained power tempts usurpation. The history of

substantive due process bears out that plain truth. In many deci-

sions, the Supreme Court has stated that the approach to constitu-

tional decision-making typified by Lochner v. New York, 198 U.S. 45

(1905), was “illegitimate,” an “intrusion by the courts into a realm

properly reserved to the political branches of government.” Cass

R. Sunstein, Lochner’s Legacy, 87 COLUM. L. REV. 873, 874 (1987).

The “freewheeling judicial policymaking” that marked “discred-

ited” decisions like Lochner and Roe v. Wade, 410 U.S. 113 (1973), see

Dobbs, 142 S. Ct. at 2248, is a feature, not a bug, of substantive due

process. And it discredits the judiciary itself. See, e.g., Dred Scott v.

Sandford, 60 U.S. (19 How.) 393 (1857).

Because the doctrine can empower judges to “usurp” au-

thority that the Constitution leaves to elected representatives, see

Dobbs, 142 S. Ct. at 2247, the Supreme Court has sought to disci-

pline its application. The Court has stated, for example, that a right

or liberty must be “deeply rooted” in our “history and tradition” to

be immune from legislative encroachment. Washington v. Glucks-

berg, 521 U.S. 702, 720–21 (1997) (citation and internal quotation

marks omitted). In this analysis, “liberty” must be defined “in a

most circumscribed manner,” in reference to “specific historical

practices.” Obergefell v. Hodges, 576 U.S. 644, 671 (2015). That is, the

asserted right must be “careful[ly] descri[bed].” Reno v. Flores, 507

U.S. 292, 302 (1993).

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Sometimes courts have defined the asserted unenumerated

right at a specific level. In Reno, for example, the Supreme Court

rejected the proposed general description of the right at issue—

“freedom from physical restraint”—and defined the right instead

more specifically as the “right of a child who has no available par-

ent, close relative, or legal guardian, and for whom the government

is responsible, to be placed in the custody of a willing-and-able pri-

vate custodian rather than of a government-operated or govern-

ment-selected child-care institution.” Id. (quotation marks omit-

ted). And in Doe v. Moore, we rejected a “broad framing” of the

rights at issue—including the rights “to family association” and to

“be free of threats to their persons and members of their immedi-

ate families”—for a more “careful” description: the “right of a per-

son, convicted of ‘sexual offenses,’ to refuse subsequent registra-

tion of his or her personal information with Florida law enforce-

ment and [to] prevent publication of this information on Florida’s

Sexual Offender/Predator website.” 410 F.3d 1337, 1343–44 (11th

Cir. 2005).

To be sure, the Glucksberg test has proved occasional. In Law-

rence v. Texas, the Supreme Court endorsed the uncircumscribed

view that the Due Process Clause protected a “liberty of the person

both in its spatial and in its more transcendent dimensions.” 539

U.S. 558, 562 (2003). And in Obergefell, the Court set aside the Glucks-

berg test and defined the right to marry in a more “comprehensive

sense.” 576 U.S. at 671.

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Yet what judicial creativity gives, a measure of judicial re-

straint can take away. For example, Dobbs did not mention the al-

ternative Obergefell method. So I agree with our dissenting col-

league that binding precedents like these are “not . . . reconcilable”

on the key question of how narrowly to define the liberty interest.

Jordan Dissent at 20.

This inconsistency is unsurprising. It is inevitable. The “con-

troversial nature” of the doctrine of substantive due process—its

lack of footing in text or history and the absence of consistent and

meaningful legal standards to guide judicial analysis—make the

caselaw “contradictory” and “imprecise.” Tymkovich et al., supra,

at 1963.

With good reason, the Supreme Court has long counseled

“reluctan[ce] to expand the concept of substantive due process.”

Collins, 503 U.S. at 125. Judicial restraint, with its respect for the sep-

aration of powers and for federalism, demands “utmost care” be-

fore courts interfere. See id. We must “guard against the natural hu-

man tendency” to conf late what due process requires with “our

own ardent views about the liberty that Americans should enjoy.”

Dobbs, 142 S. Ct. at 2247. And we must remember that the amor-

phous doctrine of substantive due process does not shield every

“important, intimate, and personal decision[]” from legislative im-

pairment. Glucksberg, 521 U.S. at 727. So, when we consult “juris-

prudence as a whole” to glean guidance, Jordan Dissent at 20, we

should be skeptical about any argument to extend this misguided

doctrine, with its checkered past, to define an unenumerated right

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at a high level of generality and enjoin enforcement of a law en-

acted by representatives of the People. Difficult questions of mo-

rality, parental rights, and medicine are properly left to democracy,

and we should not pretend that the Due Process Clauses give une-

lected judges the authority to second-guess public policy.

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LAGOA, Circuit Judge, Concurring in the denial of rehearing en

banc:

Sydney Wright took large doses of cross-sex hormones for a

year. In Wright’s words, her grandfather “saved [her] life” when

he persuaded her to stop. As a teenager, Wright’s father kicked her

out of the house after he learned that she was attracted to women,

and Wright began questioning if she “was really a man” because

she “was attracted to girls.” Wright saw a counselor who recom-

mended that she begin taking testosterone and undergo a double

mastectomy. The counselor never explored the negative effects of

Wright’s relationship with her parents or the years of sexual mo-

lestation that she endured as a child. Wright started testosterone

injections after a ten-minute appointment with a physician who

told her to learn “on YouTube” how to “give [herself] the shots.”

Testosterone caused Wright’s voice to deepen, perma-

nently. She also gained fifty pounds and became pre-diabetic. After

a year, her blood thickened, her red-blood-cell count increased, and

she developed a blood disorder that could lead to heart attack and

stroke. She also began experiencing excruciating abdominal pain,

which she continues to suffer from. One day, her grandfather—

who Wright describes as “the most important man in [her] life”—

had a “down-to-earth” talk with her. With “tears in his eyes,” he

expressed concern about her treatment and asked her to take a

three-year break to reevaluate her decision. According to Wright,

her grandfather was “worried about [her] health,” and he “never

cared how [she] looked.” Wright agreed to take a break, and on

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further reflection, realized that she needed counseling, not hor-

mone medications. Wright still suffers negative side effects from

cross-sex hormones, including digestive problems, tachycardia,

and an increased red-blood-cell count. Her gynecologist also told

her that she may never be able to have children.

The record contains many stories of others who were irre-

versibly harmed by similar medications. 1 The Alabama Legislature

decided to respond through Alabama’s Vulnerable Child Compas-

sion and Protection (“Act”). In relevant part, section 4(a)(1)–(3) of

the Act provides that “no person shall” prescribe or administer pu-

berty blocking medication or cross-sex hormones to a minor “for

the purpose of attempting to alter the appearance of or affirm the

minor’s perception of his or her gender or sex, if that appearance

or perception is inconsistent with the minor’s sex.” A federal dis-

trict court preliminarily enjoined enforcement of part of the Act

under the Due Process Clause and the Equal Protection Clause of

the Fourteenth Amendment. But we reversed. Now, a majority

of the active judges on this Court have correctly determined not to

1 See, e.g., Appendix A (KathyGrace Duncan), Appendix B (Carol Frietas), Ap-

pendix C (Corinna Cohn). One of the dissents argues that we should disregard

Wright’s testimony and the testimonies of Duncan, Frietas, and Cohn because

all of them were at least eighteen years old when they started to medically

transition and because “their ‘treatment’ did not follow WPATH Standards of

Care.” Rosenbaum Dis. Op. at 10–11, 10 n.8. But that is not a reason to dis-

regard their testimony, which demonstrates that those who are eighteen or

older may fail to understand the dangerous, long-term effects cross-sex hor-

mones and puberty blockers can have. If anything, these testimonies show

why a legislative body may choose to restrict the use of these drugs by minors.

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rehear this case en banc. The Act, “like other health and welfare

laws, is entitled to a ‘strong presumption of validity.’” Dobbs v. Jack-

son Women’s Health Org., 597 U.S. 215, 301 (2022) (quoting Heller v.

Doe ex rel. Doe, 509 U.S. 312, 319 (1993)).

Judge Rosenbaum’s dissent characterizes the panel opinion

as holding that parents do not have a constitutional right to access

“life-saving medical care” for their children. Rosenbaum Dis. Op.

at 4; see also Jordan Dis. Op. at 22 (describing the asserted right as

“the right of parents to obtain medically-approved treatment for

their children”). But 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. See Kadel v. Folwell, 100 F.4th 122, 196 (4th Cir. 2024) (en

banc) (Wilkinson, J., dissenting) (“Self-governance is notably ab-

sent when the many voices seeking to provide answers are silenced

by federal judges shrouded in an authority of their own design.”).

Indeed, “when a legislature ‘undertakes to act in areas

fraught with medical and scientific uncertainties, legislative options

must be especially broad and courts should be cautious not to re-

write legislation.’” Kansas v. Hendricks, 521 U.S. 346, 360 n.3 (1997)

(quoting Jones v. United States, 463 U.S. 354, 370 (1983)). And this

case only serves to underscore why. While we must evaluate the

district court’s work on the record it had in front of it at the time,

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recent revelations confirm the danger that comes from hastening

to afford constitutional protection in this area.

For example, in April 2024, Dr. Hillary Cass—the chair of a

policy group commissioned by England’s National Health Service

(“NHS”)—published the results of her four-year review of the use

of puberty blockers and cross-sex hormones on minors. 2 Cass

found no evidence that puberty blockers improve gender dyspho-

ria and no evidence that cross-sex hormones reduce suicide risk for

children suffering from gender dysphoria. See The Cass Review,

supra n.2, at 179, 186, 195. Cass also documented the extensive

risks associated with puberty blockers. See, e.g., id. at 177–78. In

conjunction with the Cass Review, NHS announced “that there is

not enough evidence to support the safety or clinical effectiveness

of [puberty suppressing hormones] to make the treatment rou-

tinely available at this time.” 3 And, on May 29, 2024, the United

Kingdom’s Secretary of State for Health and Social Care and North-

ern Ireland’s Minister for Health issued a temporary emergency or-

der that “prohibits”—with limited exceptions—puberty blockers

2 The Cass Review, Independent review of gender identity services for children and

young people (2024), https://cass.independent-review.uk/wp-content/up-

loads/2024/04/CassReview_Final.pdf [https://perma.cc/9F73-D7BW]

(hereinafter, “The Cass Review”).

3 Clinical Policy: Puberty suppressing hormones (PSH) for children and young people

who have gender incongruence/gender dypsphoria [1927], Nat’l Health Serv., Eng.

(Mar. 12, 2024), https://www.england.nhs.uk/wp-content/up-

loads/2024/03/clinical-commissioning-policy-gender-affirming-hormones-

v2.pdf [https://perma.cc/383H-LBVX] (hereinafter, “NHS Clinical Policy”).

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for people under the age of 18. See TransActual CIC v. Sec’y of State

for Health and Social Care [2024] EWHC 1936 (Admin), ¶¶ 2, 142–48.

On July 29, 2024, the UK’s High Court dismissed a legal challenge

to the emergency order, citing the Cass Review as “powerful scien-

tific evidence in support of restrictions on the supply of puberty

blockers on the grounds that they were potentially harmful.” See

id. ¶¶ 210, 257.

Also, in March 2024, a whistleblower leaked documents and

recordings impugning the credibility of the World Professional As-

sociation for Transgender Health (WPATH), 4 which promulgates

the “Standards of Care” that the district court relied on in its order.

Eknes-Tucker v. Marshall (“Eknes-Tucker I”), 603 F. Supp. 3d 1131,

1138–39 (M.D. Ala. 2022). The leaked documents suggest that

WPATH officials are aware of the risks of cross-sex hormones and

other procedures yet are mischaracterizing and ignoring infor-

mation about those risks. See, e.g., infra at 47–49. Again, I highlight

these developments only to demonstrate the ill-suitedness of this

area for judicial intervention.

The propriety of the medications at issue is a quintessential

legislative question, not a constitutional one. Judges Jordan and

Rosenbaum would have this Court end the debate by judicially

fencing off these questions from state legislatures. But our

4 Mia Hughes, The WPATH Files, Environmental Progress (2024),

https://static1.squarespace.com/static/56a45d683b0be33df885def6/t/65ea1

c1ea42ff5250c88a2f5/1709841455308/WPATH+Report+and+Files%28N%2

9.pdf [https://perma.cc/5HLY-TSUR] (hereinafter, “The WPATH Files”).

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experience with the intersection of the Constitution and these

types of issues suggests that this is a misguided effort. See Roe v.

Wade, 410 U.S. 113 (1973), overruled by Dobbs, 597 U.S. at 302 (“re-

turn[ing]” “authority to the people and their elected representa-

tives” to regulate abortion). Compare Buck v. Bell, 274 U.S. 200

(1927), with Box v. Planned Parenthood Ind. & Ky., Inc., 587 U.S. 490,

499–500 (2019) (Thomas, J., concurring) (noting that Buck v. Bell

“gave the eugenics movement added legitimacy and considerable

momentum”). Our panel opinion correctly declined to remove

these issues from the political process by rejecting a novel reading

of the Fourteenth Amendment that is unmoored from text, history,

and tradition.

I. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

The panel opinion provides a thorough summary of the fac-

tual background and procedural history. See Eknes-Tucker v. Gover-

nor of Alabama (“Eknes-Tucker II”), 80 F.4th 1205, 1211–19 (11th Cir.

2023). Here, I provide a summary of the relevant provisions of the

Act and a brief overview of the procedural history.

A. The Act

The Alabama Legislature passed the Act on April 7, 2022,

and Governor Ivey signed it the next day. Section 3(1) incorporates

the definition of “minor” found in another part of the code, which

is a “person who is under 19 years of age.” Ala. Code § 43-8-1(18).

And section 3(3) defines “sex” to mean “[t]he biological state of be-

ing male or female, based on the individual’s sex organs,

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chromosomes, and endogenous hormone profiles.” Section 4(a)

then states, in part, that “no person shall engage in or cause” the

prescription or administration of (1) “puberty blocking medication

to stop or delay normal puberty,” (2) “supraphysiologic 5 doses of

testosterone or other androgens to females,” or (3) “supraphysio-

logic doses of estrogen to males,” “for the purpose of attempting

to alter the appearance of or affirm the minor’s perception of his or

her gender or sex, if that appearance or perception is inconsistent

with the minor’s sex.” 6 Section 4(b), however, provides an excep-

tion if “a procedure [is] undertaken to treat a minor born with a

medically verifiable disorder of sex development,” and includes

some examples of such disorders. 7

5 Supraphysiologic means of or pertaining to an amount “greater than nor-

mally present in the body.” See Supraphysiologic, Merriam-Webster,

https://www.merriam-webster.com/medical/supraphysiological

[https://perma.cc/QW8K-882J].

6 Section 4 also forbids performing surgeries that sterilize, performing surger-

ies that “artificially construct tissue with the appearance of genitalia that differs

from the individual’s sex,” and removing “any healthy or non-diseased body

part or tissue, except for a male circumcision.” Act § 4(a)(4)–(6). Plaintiffs

originally challenged these portions of the Act also, but represented at the be-

ginning of the preliminary-injunction hearing below that they were no longer

seeking a preliminary injunction with respect to them. See Eknes-Tucker I, 603

F. Supp. 3d at 1139 n.5.

7 These disorders include: (1)“[a]n individual born with external biological sex

characteristics that are irresolvably ambiguous, including an individual born

with 46 XX chromosomes with virilization, 46 XY chromosomes with under

virilization, or having both ovarian and testicular tissue”; and (2) “[a]n individ-

ual whom a physician has otherwise diagnosed with a disorder of sexual de-

velopment, in which the physician has determined through genetic or

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B. Procedural History

Shortly after the Governor signed the Act, the Plaintiffs—

including transgender minors (the “Minor Plaintiffs”) and their par-

ents (the “Parent Plaintiffs”)—sued several Alabama state officials

(collectively, “Alabama”). Relevant to this appeal, the Plaintiffs al-

leged that the Act violated the Due Process Clause of the Four-

teenth Amendment by depriving the Parent Plaintiffs of their right

to direct the upbringing of their children, and alleged that the Act

violated the Equal Protection Clause by discriminating against the

Minor Plaintiffs on account of their sex and transgender status.

The Plaintiffs then moved for a preliminary injunction. 8 Af-

ter a three-day hearing—at which the district court heard evidence

from both sides about the efficacy of the treatments proscribed by

the Act, see Eknes-Tucker II, 80 F.4th at 1215–18—the district court

granted the Plaintiffs’ motion with respect to Section 4(a)(1)–(3),

see Eknes-Tucker I, 603 F. Supp. 3d at 1138, 1151. The district court

concluded that the Plaintiffs had a substantial likelihood of success

on the merits as to their due-process and equal-protection claims.

With respect to the due-process claim, the district court concluded

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.” Act § 4(b).

8 The United States moved to intervene on behalf of the Plaintiffs under Fed-

eral Rule of Civil Procedure 24 and filed its own motion to enjoin enforcement

of the Act on equal-protection grounds. The district court granted interven-

tion and the United States’s motion for injunctive relief to the same extent it

granted the Plaintiffs’ motion. Eknes-Tucker I, 603 F. Supp. 3d at 1151.

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that the Parent Plaintiffs were substantially likely to show that they

have a “fundamental right to treat their children with transitioning

medications subject to medically accepted standards,” and that sec-

tion 4(a)(1)–(3) violates this right, triggering strict scrutiny. Id. at

1144–45. And, in the eyes of the district court, section 4(a)(1)–(3)

likely failed to satisfy strict scrutiny. Id. at 1146. With respect to

the equal-protection claim, the district court concluded that the Act

“amounts to a sex-based classification,” meaning it needed to sat-

isfy intermediate scrutiny. Id. at 1147. Again, the district court

found that the Act likely failed to meet this burden. Id. at 1148.

Alabama subsequently appealed.

II. ANALYSIS

On appeal, the panel unanimously concluded that the dis-

trict court abused its discretion by preliminarily enjoining Alabama

officials from enforcing section 4(a)(1)–(3) of the Act. Eknes-Tucker

II, 80 F.4th at 1210. We held that the Due Process Clause does not

secure “a constitutional right to ‘treat [one’s] children with transi-

tioning medications subject to medically accepted standards,’” and

that the Act does not discriminate “on the basis of sex or any other

protected characteristic.” Id. at 1210–11, 1219–31 (alteration in the

original). Thus, we concluded that section 4(a)(1)–(3) was subject

only to rational-basis review, and, as a consequence, the district

court’s “determination that the plaintiffs have established a sub-

stantial likelihood of success on the merits [could not] stand.” Id.

at 1210–11; see id. at 1231. We therefore vacated the preliminary

injunction. Id. at 1211, 1231.

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Some of my dissenting colleagues interpret the Fourteenth

Amendment differently. I respectfully disagree. Below, I first ex-

plain why the panel’s understanding of the Fourteenth Amend-

ment is consistent with text, history, tradition, and existing prece-

dent. I then explain why Alabama’s decision is a rational exercise

of its police power.

A. Substantive Due Process

The Due Process Clause of the Fourteenth Amendment pro-

vides that no State shall “deprive any person of life, liberty, or prop-

erty, without due process of law.” U.S. Const. amend. XIV, § 1.

Because this Clause makes no express mention of a parent’s right

to access cross-sex hormones and puberty blockers on behalf of a

child, the Parent Plaintiffs “must show that the right is somehow

implicit in the constitutional text.” Dobbs, 597 U.S. at 235.

“The most familiar office of [the Due Process] Clause is to

provide a guarantee of fair procedure in connection with any dep-

rivation of life, liberty, or property by a State.” Collins v. City of

Harker Heights, 503 U.S. 115, 125 (1992). But the Supreme Court

has said that the Due Process Clause protects “two categories of

substantive rights”—a great majority of those enumerated in the

first eight Amendments as well as “a select list of fundamental

rights that are not mentioned anywhere in the Constitution.”

Dobbs, 597 U.S. at 237. The Supreme Court has long been “reluc-

tant” to add a new right to this list, Collins, 503 U.S. at 125, because

“[i]dentifying unenumerated rights carries a serious risk of judicial

overreach,” Dep’t of State v. Muñoz, 144 S. Ct. 1812, 1821–22 (2024);

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cf. United States v. Johnson, 921 F.3d 991, 1021 (11th Cir. 2019) (en

banc) (Rosenbaum, J., dissenting) (recognizing that “the ‘doctrine

of judicial self-restraint requires us to exercise the utmost care

whenever we . . . break new ground’” (alteration in the original)

(quoting Collins, 503 U.S. at 125)). Otherwise, “the liberty pro-

tected by the Due Process Clause” would simply reflect the “policy

preferences” of the federal judiciary. Washington v. Glucksberg, 521

U.S. 702, 720 (1997).

Out of this cautious approach grew the requirement that a

substantive-due-process analysis “must begin with a careful de-

scription of the asserted right.” Reno v. Flores, 507 U.S. 292, 302

(1993). Heeding this directive, the panel opinion’s description of

the right claimed here came directly from the district court, which

concluded that the Parent Plaintiffs likely have a “fundamental

right to treat their children with transitioning medications subject

to medically accepted standards.” Eknes-Tucker I, 603 F. Supp. 3d at

1144.

The dissents take issue with this framing. Judge Jordan de-

scribes our analysis as “too simple” and says that we “ignore[] many

Supreme Court cases that define fundamental rights at a much

more general level without requiring established and precise his-

torical pedigrees.” Jordan Dis. Op. at 2. He “cite[s] with confidence

to the dissent of Justice Stevens in McDonald,” id. at 7, where Justice

Stevens suggested that courts need not “define the asserted right at

the most specific level, thereby sapping it of a universal valence and

moral force it might otherwise have,” McDonald v. City of Chicago,

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561 U.S. 742, 882 (2010) (Stevens, J., dissenting). Judge Jordan

would instead define the right as a parent’s right “to obtain medi-

cally-approved treatment for their children.” Jordan Dis. Op. at 22.

Judge Rosenbaum defines the right at stake as “parents’ fun-

damental right to direct that their child receive well-established,

evidence-based, non-experimental medical treatment, subject to

medically accepted standards and a physician’s independent exam-

ination and medical judgment.” Rosenbaum Dis. Op. at 1. Her

opinion also faults our panel for “hyper-narrowly describ[ing] the

asserted right.” Id. at 31.

And Judge Wilson argues that en banc review is justified be-

cause of Judges Jordan and Rosenbaum’s disagreement with our

framing of the supposed right at stake, as well as the fact that the

district court also framed the right at a higher level of generality.

Wilson Dis. Op. at 1–2.

Respectfully, the panel’s framing of the right is squarely

within the approach taken by our Circuit, as Judge Jordan acknowl-

edges. See Jordan Dis. Op. at 1 (recognizing that “[t]here is admit-

tedly some support in our cases for the panel’s approach”). For

example, in Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005), the plain-

tiffs challenged, among other things, Florida’s sex offender registra-

tion/notification scheme. Id. at 1339. The plaintiffs argued that

this scheme—under which sex offenders registered and then the

state published their information on the internet—violated sub-

stantive due process. Id. at 1342. Specifically, the plaintiffs alleged

that it infringed their “rights to family association, to be free of

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threats to their persons and members of their immediate families,

to be free of interference with their religious practices, to find

and/or keep any housing, and . . . to find and/or keep any employ-

ment.” Id. at 1343.

But instead of accepting this broad framing of the supposed

rights at stake, this Court “endeavor[ed] to create a more careful

description of the asserted right in order to analyze its importance.”

Id. A “careful description of the fundamental interest at issue here,”

we explained, “allows us to narrowly frame the specific facts before

us so that we do not stray into broader ‘constitutional vistas than

are called for by the facts of the case at hand.’” Id. at 1344 (quoting

Williams v. Att’y Gen. of Ala., 378 F.3d 1232, 1240 (11th Cir. 2004)).

This did not mean, we said, that “cases involving other privacy in-

terests or burdens on those interests” were irrelevant, only that

“we must quantify the claimed right in narrow terms before ana-

lyzing its historical importance in the second prong where discus-

sion of prior case law is more appropriate.” Id. at 1344 n.4. So,

after reviewing the law and the parties’ arguments, we determined

that that supposed right at issue there was “the right of a person,

convicted of ‘sexual offenses,’ to refuse subsequent registration of

his or her personal information with Florida law enforcement and

prevent publication of this information on Florida’s Sexual Of-

fender/Predator website.” Id. at 1344.

Similarly, in Morrissey v. United States, 871 F.3d 1260 (11th

Cir. 2017), the plaintiff alleged that the IRS’s disallowance of a

claimed deduction for IVF-related costs infringed “his fundamental

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right to reproduce.” Id. at 1268. We recognized that the Supreme

Court had “referred to procreation as ‘fundamental to the very ex-

istence and survival of the [human] race’ and as a ‘basic civil right[]

of man.’” Id. (alterations in the original) (quoting Skinner v. Okla-

homa, 316 U.S. 535, 541 (1942)). But the question in Morrissey, we

said, was “not whether the Constitution protects a right to ‘procre-

ation’ generally.” Id. at 1269. Rather than rest at this level of gen-

erality, this Court went further, providing that the pertinent ques-

tion in the case was “whether a man has a fundamental right to

procreate via an IVF process that necessarily entails the participa-

tion of an unrelated third-party egg donor and a gestational surro-

gate.” Id.

The approach taken by these cases explains our framing of

the alleged “right” at issue here. 9 And while it is true that a plurality

of the Supreme Court has recognized, at a high level of generality,

“the fundamental right of parents to make decisions concerning the

care, custody, and control of their children,” Troxel v. Granville, 530

U.S. 57, 66 (2000) (plurality opinion), there is no accompanying sug-

gestion from the Court that plaintiffs asserting a supposed right un-

der this umbrella are exempt from the “careful description” re-

quirement found elsewhere in the case law. To the contrary, as a

recent decision makes clear, the Court has continued to define

9 As I discuss below, even if we were to accept the framing offered by either

Judge Jordan or Judge Rosenbaum, both still fail to “engage[] in a careful anal-

ysis of the history of the right at issue.” Dobbs, 597 U.S. at 238.

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alleged unenumerated rights narrowly so as to maintain fidelity to

the facts before it in each case. See Muñoz, 144 S. Ct. at 1822. 10

There is also the fact that most of the cases concerning pa-

rental rights “pertain to issues of education, religion, or custody.”

Eknes-Tucker II, 80 F.4th at 1222. In Meyer v. Nebraska, 262 U.S. 390

(1923), the Supreme Court set aside a schoolteacher’s conviction,

which was predicated on the violation of a state law forbidding the

teaching of most foreign languages before the eighth grade. Id. at

396–97, 401–403. Among other things, the Court reasoned that the

“liberty” guaranteed by the Due Process Clause included the right

to “establish a home and bring up children.” Id. at 399. Two years

later, in Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary,

268 U.S. 510 (1925), the Supreme Court concluded that an Oregon

law—which required children from ages eight to sixteen to attend

public school—“unreasonably interfere[d] with the liberty of par-

ents and guardians to direct the upbringing and education of chil-

dren under their control.” Id. at 530, 534–35; see also id. at 535 (“The

child is not the mere creature of the state; those who nurture him

and direct his destiny have the right, coupled with the high duty,

to recognize and prepare him for additional obligations.”).

Child labor laws were at issue in Prince v. Massachusetts, 321

U.S. 158 (1944). The petitioner, a Jehovah’s Witness, was the aunt

10 In Muñoz, the respondent invoked the “fundamental right of marriage,” but

the Court pushed further, concluding that the respondent actually “claim[ed]

something distinct: the right to reside with her noncitizen spouse in the United

States.” 144 S. Ct. at 1822 (emphasis omitted).

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and custodian of a nine-year-old girl. Id. at 159, 161. After allowing

the girl to assist with sidewalk preaching efforts, the petitioner was

charged with furnishing the girl with magazines to sell and permit-

ting her to work in violation of the law. Id. at 160, 162. Pointing

to Meyer and Pierce, the Court said that it “is cardinal with us that

the custody, care and nurture of the child reside first in the parents,

whose primary function and freedom include preparation for obli-

gations the state can neither supply nor hinder.” Id. at 166. At the

same time, the Court recognized “that the state has a wide range

of power for limiting parental freedom and authority in things af-

fecting the child’s welfare” and that the “state’s authority over chil-

dren’s activities is broader than over like actions of adults.” Id. at

167–68.

In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Supreme Court

held that Wisconsin’s compulsory-school attendance law for stu-

dents up to the age of sixteen violated the First and Fourteenth

Amendments. Id. at 234. The Court described the interest at stake

as “the fundamental interest of parents . . . to guide the religious

future and education of their children.” Id. at 232; see id. at 233

(“[T]he Court’s holding in Pierce stands as a charter of the rights of

parents to direct the religious upbringing of their children.”). But

even in Yoder, the Court made clear that “the power of the parent,

even when linked to a free exercise claim, may be subject to limi-

tation under Prince if it appears that parental decisions will jeopard-

ize the health or safety of the child, or have a potential for signifi-

cant social burdens.” Id. at 233–34.

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The Supreme Court’s other parental-rights cases mostly in-

volve custody issues. Stanley v. Illinois, 405 U.S. 645 (1972), for ex-

ample, concerned an unwed father’s challenge to Illinois’s proce-

dure for custody determinations upon the death of the mother. Id.

at 646–47. The Court held that the procedure—which presumed

unwed fathers are unfit to raise their children—was at odds with

the Fourteenth Amendment. Id. at 657–58. Along the way, the

Court recognized that the father’s interest in “retaining custody of

his children is cognizable and substantial” and that a parent’s inter-

est “in the companionship, care, custody, and management of his

or her children ‘come[s] to this Court with a momentum for re-

spect lacking when appeal is made to liberties which derive merely

from shifting economic arrangements.’” Id. at 651–52 (alteration

in the original) (quoting Kovacs v. Cooper, 336 U.S. 77, 95 (1949)

(Frankfurter, J., concurring)). At issue in Quilloin v. Walcott, 434

U.S. 246 (1978), was the constitutionality of the application of

Georgia’s adoption law “to deny an unwed father authority to pre-

vent adoption of his illegitimate child.” Id. at 247. While the Court

recognized that “the relationship between parent and child is con-

stitutionally protected” and said that “it is now firmly established

that ‘freedom of personal choice in matters of . . . family life is one

of the liberties protected by the Due Process Clause of the Four-

teenth Amendment,’” it concluded that Georgia’s law was not un-

constitutional as applied. Id. at 255 (alteration in the original)

(quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–640

(1974)).

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In Santosky v. Kramer, 455 U.S. 745 (1982), the Supreme

Court considered the constitutionality of New York’s statutory

scheme governing the termination of parental rights in cases of per-

manent neglect. Id. at 748–52. The Court held that the parents in

that case were deprived of due process, as the statute at issue re-

quired only a “fair preponderance of the evidence” to support a

finding of permanent neglect. Id. at 747, 768. Along the way to

that conclusion, the Court referenced the “fundamental liberty in-

terest of natural parents in the care, custody, and management of

their child.” Id. at 753.

And Troxel concerned the constitutionality of Washington’s

statute that afforded “[a]ny person” the ability to petition a court

for visitation rights. 530 U.S. at 61 (plurality opinion). A plurality

of the Court said that this statute—which allowed a state court to

grant such rights if in the best interest of the child, even if the child’s

parent opposed—unconstitutionally infringed on “the fundamen-

tal right of parents to make decisions concerning the care, custody,

and control of their children,” as applied to facts of the case at issue.

Id. at 66–67.

We are not free to divorce the facts of these cases from the

rules they set forth. See, e.g., Edwards v. Prime, Inc., 602 F.3d 1276,

1298 (11th Cir. 2010) (“[R]egardless of what a court says in its opin-

ion, the decision can hold nothing beyond the facts of that case.”);

Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir.

2003) (“Whatever their opinions say, judicial decisions cannot

make law beyond the facts of the cases in which those decisions are

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announced.”); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 333

(1827) (Marshall, C.J., dissenting) (“[T]he positive authority of a de-

cision is co-extensive only with the facts on which it is made.”). As

the Supreme Court recently reminded, judicial “opinions dispose

of discrete cases and controversies and they must be read with a

careful eye to context.” Nat’l Pork Producers Council v. Ross, 598 U.S.

356, 373–74 (2023); accord Illinois v. Lidster, 540 U.S. 419, 424 (2004)

(explaining that courts should “read general language in judicial

opinions . . . as referring in context to circumstances similar to the

circumstances then before the Court and not referring to quite dif-

ferent circumstances that the Court was not then considering”).

Therefore, without an accompanying historical showing justifying

such a move, we cannot extend the holdings of these cases to the

facts here.

Both Judge Jordan and Judge Rosenbaum rely most heavily

on another case, Parham v. J. R., 442 U.S. 584 (1979). But no matter

how many times they turn to Parham, it does not “control[] the

analysis.” Rosenbaum Dis. Op. at 29. As we explained in the panel

opinion, Parham does not provide that the Fourteenth Amendment

guarantees parents the ability to disregard state regulations on

available medical care. Eknes-Tucker II, 80 F.4th at 1222–23. And a

sister circuit agrees. See L.W. ex rel. Williams v. Skrmetti, 83 F.4th

460, 477 (6th Cir. 2023) (“Nothing in Parham supports an affirma-

tive right to receive medical care, whether for a child or an adult,

that a state reasonably bans.”).

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In Parham, a group of minors brought a procedural-due-pro-

cess challenge to Georgia’s statutory scheme governing the admis-

sion of children to mental hospitals. 442 U.S. at 587–88. Im-

portantly, this scheme allowed parents to apply for their child’s

hospitalization. Id. at 590–91. Judges Jordan and Rosenbaum are

correct that the Court considered the interests of the parents in

reaching a conclusion as to the procedural protections owed to the

plaintiffs under the Due Process Clause. Id. at 601–04. Drawing

from its precedents, the Court said that a parent’s “high duty . . . to

recognize and prepare [their children] for additional obligations”

includes a duty to “recognize symptoms of illness and to seek and

follow medical advice.” Id. at 602 (second alteration in the original)

(quoting Pierce, 268 U.S. at 535). Because of this, the Court said that

the presence of disagreement between parent and child as to the

proper course of treatment “does not diminish the parents’ author-

ity to decide what is best for the child,” and does not provide cause

for governmental intervention. Id. at 603–04. With respect to vol-

untary commitment, the Court concluded that its precedents “per-

mit the parents to retain a substantial, if not the dominant, role in

the decision, absent a finding of neglect or abuse, and that the tra-

ditional presumption that the parents act in the best interests of

their child should apply.” Id. at 604. But, in light of “the child’s

rights and the nature of the commitment decision,” the Court also

cautioned that “parents cannot always have absolute and unre-

viewable discretion to decide whether to have a child institutional-

ized.” Id. Instead, the Court said, any decision is “subject to a phy-

sician’s independent examination and medical judgment.” Id.

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The Court ultimately concluded that “some kind of inquiry

should be made by a ‘neutral factfinder’ to determine whether the

statutory requirements for admission are satisfied,” but it rejected

a “formalized, factfinding hearing” because that could lead to a

“significant intrusion into the parent-child relationship.” Id. at 606,

610. “Pitting the parents and child as adversaries,” said the Court,

“often will be at odds with the presumption that parents act in the

best interests of their child.” Id. at 610.

In determining Parham’s relevance to this case, context is

again key. See Nat’l Pork Producers, 598 U.S. at 373–74. In other

words, we must not “rely[] on general statements from [Parham]

dealing with governmental actions not even remotely similar to

those involved here.” Parham, 442 U.S. at 608 n.16. While this case

is about a conflict between the Parent Plaintiffs and Alabama over

substantive-due-process requirements, Parham was concerned with

procedural-due-process requirements in a context that could pit

parents and children “as adversaries.” Id. at 610. And in Parham,

the question before the Court involved a Georgia law permitting

institutionalization as a state-approved form of medical treatment.

As we pointed out in the panel opinion, the question in Parham was

not whether, under the Fourteenth Amendment, a Georgia law

barring institutionalization had to give way in light of a parent’s de-

sire to institutionalize their child. See Eknes-Tucker II, 80 F.4th at

1223. Parham did not say, for example, that Georgia was constitu-

tionally forbidden from ending its voluntary commitment scheme

if parents disagreed with that decision. In fact, the Court indicated

that the opposite was true. See Parham, 442 U.S. at 604 (“Parents in

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Georgia in no sense have an absolute right to commit their children

to state mental hospitals; the statute requires the superintendent of

each regional hospital to exercise independent judgment as to the

child’s need for confinement.”). The Parham Court also recognized

that “a state is not without constitutional control over parental dis-

cretion in dealing with children when their physical or mental

health is jeopardized.” Id. at 603. 11

Importantly, the Supreme Court later rejected an attempt to

turn Parham into the decision some of the dissenters want it to be.

In Cruzan ex rel. Cruzan v. Director, Missouri, Department of Health,

497 U.S. 261 (1990), the Court refused to read Parham, “a decision

which allowed a State to rely on family decisionmaking,” as setting

forth “a constitutional requirement that the State recognize such

11 Judge Rosenbaum states that this analysis “elementally misunderstands the

nature of a fundamental right,” as “[c]onstitutional protections are not so sus-

ceptible to state-law abrogation.” Rosenbaum Dis. Op. at 24; see also Jordan

Dis. Op. at 23–25. In the abstract, she is of course correct that a state law

cannot trump an individual right afforded by the federal constitution. But

here, we are tasked with the antecedent question: whether the Parent Plain-

tiffs are substantially likely to show that they have such a right in the first place.

To do so, we must consult text, history, and tradition, as informed by binding

precedent, to determine whether the Due Process Clause affords such a right

and strips Alabama of the authority to enforce the Act. See United States v.

Comstock, 560 U.S. 126, 159 (2010) (Thomas, J., dissenting) (“The States . . . are

free to exercise all powers that the Constitution does not withhold from

them.”). The point we made in the panel opinion, Eknes-Tucker II, 80 F.4th at

1223, is that Parham does not recognize the right claimed by the Parent Plain-

tiffs, and thus does not stand for the proposition that Alabama lacks the au-

thority to enforce the Act in light of parental dissent.

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decisionmaking.” Id. at 286. “[C]onstitutional law,” according to

the Court, “does not work that way.” Id.

Attempts to distinguish away Cruzan come up empty. Judge

Rosenbaum reads Parham to recognize a fundamental right and

then says that Cruzan, with its different facts, did not limit that

right. See Rosenbaum Dis. Op. at 19–23. But Cruzan did not distin-

guish Parham on any of the grounds offered by Judge Rosenbaum.

Instead, the Court in Cruzan disagreed with the petitioner’s view of

“constitutional law,” as evidenced by the petitioner’s reading of

Parham, which is like the reading offered by Judges Jordan and Ros-

enbaum. See Cruzan, 497 U.S. at 286. The panel’s refusal to adopt

a view of constitutional law rejected by the Supreme Court is

hardly “sidestep[ping]” Supreme Court precedent. Rosenbaum

Dis. Op. at 23.

In short, while some of the dissenters chant Parham “like a

mantra,” they “cannot give [Parham] substance that it lacks.” Sec.

& Exch. Comm’n v. Jarkesy, 144 S. Ct. 2117, 2138 (2024). Parham

does not lead to the conclusion that the Parent Plaintiffs have a

constitutional right to override Alabama’s decision regarding the

availability of the medications prohibited for use by minors under

the Act.

Thus, though purporting to simply apply Supreme Court

precedent, both Judge Jordan and Judge Rosenbaum would have

us mark out new terrain. 12 While the Supreme Court’s substantive-

12 This Court’s decisions similarly provide no support for the understanding of

the Due Process Clause shared by Judges Jordan and Rosenbaum, the district

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due-process precedents do not rule out such a move, they do de-

mand a showing that a right is “deeply rooted in [our] history and

tradition” and “essential to our Nation’s ‘scheme of ordered lib-

erty.’” Dobbs, 597 U.S. at 237 (alteration in the original) (quoting

Timbs v. Indiana, 586 U.S. 146, 150 (2019)). To conduct this inquiry,

we must engage “in a careful analysis of the history of the right at

issue.” Id. at 238. This analysis is “essential whenever we are asked

to recognize a new component of the ‘liberty’ protected by the Due

Process Clause because the term ‘liberty’ alone provides little guid-

ance.” Id. at 239. It also guards against “usurp[ing] authority that

the Constitution entrusts to the people’s elected representatives”

and engaging in “freewheeling judicial policymaking.” Id. at 239–

40.

The approach taken by the district court—and by extension

those defending its decision—does not pay “careful ‘respect [to] the

teachings of history.’” Moore v. City of East Cleveland, 431 U.S. 494,

503 (1977) (plurality opinion) (quoting Griswold v. Connecticut, 381

U.S. 479, 501 (1965) (Harlan, J., concurring in the judgment)). The

Supreme Court’s opinion in Timbs traced the right at issue in that

case “back to [the] Magna Carta, Blackstone’s Commentaries, and

35 of the 37 state constitutions in effect at the ratification of the

court, and the Appellees. Eknes-Tucker II, 80 F.4th at 1223–24, 1223 n.15. Judge

Jordan criticizes the panel’s characterization of Bendiburg v. Dempsey, 909 F.2d

463 (11th Cir. 1990), Jordan Dis. Op. at 3–5, but I do not see how his criticism

ultimately supports his argument. In other words, even if we assume Bendi-

burg is “largely irrelevant,” id. at 5, this does not change the fact that this

Court’s cases do not support Judge Jordan’s reading of the Due Process Clause.

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Fourteenth Amendment.” Dobbs, 597 U.S. at 238 (citing Timbs, 586

U.S. at 151–54). And the Supreme Court’s opinion in Glucksberg

“surveyed more than 700 years of ‘Anglo-American common law

tradition.’” Id. at 239 (quoting Glucksberg, 521 U.S. at 711). But the

district court failed to point to any ratification-era support for its

decision—“no state constitutional provision, no statute, no judicial

decision, [and] no learned treatise.” Id. at 251; see Eknes-Tucker II,

80 F.4th at 1221 (“[T]he district court’s order does not feature any

discussion of the history of the use of puberty blockers or cross-sex

hormone treatment or otherwise explain how that history informs

the meaning of the Fourteenth Amendment at the time it was rat-

ified—July 9, 1868.”). 13

Judges Jordan and Rosenbaum similarly fail to supply the

needed historical support. This holds true even if we assume that

they correctly framed the alleged right at stake. Finding the proper

level of specificity does not exempt one from “engag[ing] in a care-

ful analysis of the history of the right at issue.” Dobbs, 597 U.S. at

238. And neither Judge Jordan nor Judge Rosenbaum has demon-

strated that the ability to obtain medically-approved or non-exper-

imental treatment, despite state regulation to the contrary, is

13 A word about the so-called “1868 Methodology.” See Rosenbaum Dis. Op.

at 1–2, 32–37. Judge Rosenbaum mischaracterizes the panel opinion as con-

cluding that parents have the fundamental right to direct that their children

receive “medical treatments in existence as of 1868.” Id. at 1. That issue, of

course, was not before the panel. And the panel opinion merely notes the

absence of any historical support for the position reached by the district

court—a deficiency not cured on appeal.

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“deeply rooted in [our] history and tradition.” Id. at 237 (alteration

in the original) (quoting Timbs, 586 U.S. at 150). If their understand-

ing of the Due Process Clause was correct, we would expect to see

some evidence of such a right’s existence before and after the Four-

teenth Amendment’s ratification. But, at least on the arguments

presented in this case, no one comes close to demonstrating the

existence of a right “deeply rooted in this Nation’s history and tra-

dition” and “implicit in the concept of ordered liberty.” Id. at 231

(quoting Glucksberg, 521 U.S. at 721).

This lack of history should not be surprising given that

“States traditionally have had great latitude under their police pow-

ers to legislate as to the protection of the lives, limbs, health, com-

fort, and quiet of all persons.” Medtronic, Inc. v. Lohr, 518 U.S. 470,

475 (1996) (quoting Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724,

756 (1985)); cf. Muñoz, 144 S. Ct. at 1823 (refusing to recognize a

right under Glucksberg when “the through line of history” is recog-

nition of the government’s power to regulate). Included within

these police powers is the authority to legislate to “preserv[e] and

promot[e] the welfare of the child,” Santosky, 455 U.S. at 766, and

to “safeguard[] the physical and psychological well-being of a mi-

nor,” Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty., 457 U.S.

596, 607 (1982), even if, in some cases, this limits parental discre-

tion, see Prince, 321 U.S. at 167. Indeed, the Supreme Court has

“sustained legislation aimed at protecting the physical and emo-

tional well-being of youth even when the laws have operated in the

sensitive area of constitutionally protected rights.” New York v. Fer-

ber, 458 U.S. 747, 757 (1982).

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Importantly, a state’s exercise of this authority is not contin-

gent on the approval of the expert class. The Constitution’s con-

tours are not shaped by expert opinion. See Dobbs, 597 U.S. at 272–

73 (suggesting that the position of groups like the American Medi-

cal Association does not “shed light on the meaning of the Consti-

tution”); Otto v. City of Boca Raton, 981 F.3d 854, 869 (11th Cir. 2020)

(explaining that “institutional positions cannot define the bounda-

ries of constitutional rights”). “[F]rom time immemorial,” the

states have regulated those who practice medicine. Dent v. West

Virginia, 129 U.S. 114, 122 (1889); see Watson v. Maryland, 218 U.S.

173, 176 (1910) (“It is too well settled to require discussion at this

day that the police power of the states extends to the regulation of

certain trades and callings, particularly those which closely concern

the public health.”). And the Due Process Clause does not mandate

the opposite arrangement.

Additionally, neither Judge Jordan nor Judge Rosenbaum

has assembled a historical record demonstrating that adults them-

selves possess the constitutional right to access the medications at

issue, or any specific medication, for that matter. And the weight

of the authority indicates that the opposite is true. Many of our

sister circuits “have rejected arguments that the Constitution pro-

vides an affirmative right of access to particular medical treatments

reasonably prohibited by the Government.” Abigail All. for Better

Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 710

(D.C. Cir. 2007) (en banc); see id. at 710 n.18 (collecting cases);

Mitchell v. Clayton, 995 F.2d 772, 775 (7th Cir. 1993) (“[M]ost federal

courts have held that a patient does not have a constitutional right

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to obtain a particular type of treatment or to obtain treatment from

a particular provider if the government has reasonably prohibited

that type of treatment or provider.”). Instead, “our Nation’s his-

tory evidences increasing regulation of drugs as both the ability of

government to address these risks has increased and the risks asso-

ciated with drugs have become apparent.” Abigail All., 495 F.3d at

711. Because we have recognized that a parent’s right to “make

decisions for his [son or daughter] can be no greater than his rights

to make medical decisions for himself,” Doe ex rel. Doe v. Pub. Health

Tr. of Dade Cnty., 696 F.2d 901, 903 (11th Cir. 1983), these cases

strongly support the result reached by the panel opinion. This is

especially true because the “state’s authority over children’s activi-

ties is broader than over like actions of adults.” Prince, 321 U.S. at

168.

For all these reasons, the panel was correct to conclude that

the Parent Plaintiffs have failed to establish the existence of a fun-

damental right. I write further, though, to highlight additional

doubts that I have about the Parent Plaintiffs’ arguments.

First, even if the historical record lent credence to the idea

that there was a parental right to obtain medically approved or

non-experimental medications in the face of governmental prohi-

bition, I am skeptical that this right would be implicated here. “[I]n

areas where there is medical and scientific uncertainty,” state legis-

latures are afforded “wide discretion to pass legislation.” Gonzales

v. Carhart, 550 U.S. 124, 163 (2007). And with this wide discretion

comes an exceedingly narrow role for federal courts. If it were

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otherwise, we would often find ourselves answering questions that

should be answered by the political branches. Instead of merely

“say[ing] what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch)

137, 177 (1803), we would be “decid[ing] the proper balance be-

tween the uncertain risks and benefits of medical technology,” Ab-

igail All., 495 F.3d at 713, and imposing a “constitutional straight-

jacket” in the process, Skrmetti, 83 F.4th at 473. That is not our role.

Below, the district court extended the Constitution’s protec-

tions despite considerable uncertainty, based in part on its conclu-

sion that Alabama failed to produce “evidence showing that transi-

tioning medications jeopardize the health and safety of minors suf-

fering from gender dysphoria.” Eknes-Tucker I, 603 F. Supp. 3d at

1145. But that statement is not quite right. 14 As I explain in my

discussion of rational-basis review, Alabama did in fact produce ev-

idence to that effect. 15 See infra at 43–47. And recent revelations

only serve to confirm the impropriety of the district court’s inter-

vention. I make note of them not because they change our review

of the district court’s order, but because they highlight the issues

14 Indeed, elsewhere in its order, the district court recognized that “transition-

ing medications” come with “[k]nown risks,” including “loss of fertility and

sexual function.” Eknes-Tucker I, 603 F. Supp. 3d at 1139; see also id. at 1145

(recognizing that the “Defendants offer some evidence that transitioning med-

ications pose certain risks”).

15 For example, studies suggest that significant health risks may stem from the

use of these medications, including sterility, sexual dysfunction, lower bone

density, high blood pressure, breast cancer, liver disease, cardiovascular dis-

ease, and weight gain.

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that often arise when courts extend the Constitution’s protections

to areas subject to all sorts of uncertainty.

For example, when the district court entered the order un-

der review, it concluded that “no country or state in the world cat-

egorically bans the[] use” of puberty blockers and cross-sex hor-

mones “as Alabama has.” Eknes-Tucker I, 603 F. Supp. 3d at 1145.

But other countries have started to adopt Alabama’s position. In

March 2024, England’s NHS announced that puberty blockers are

no longer available as a routine treatment for English minors suf-

fering from gender dysphoria. NHS “concluded that there is not

enough evidence to support the safety or clinical effectiveness” of

such drugs “to make the treatment routinely available at this

time.” 16 NHS Clinical Policy, supra n.3, at 3. And as noted earlier,

the UK has also temporarily banned puberty blockers (with limited

exceptions) through an emergency order, which the UK’s High

Court recently sustained. See TransActual CIC [2024] EWHC 1936

(Admin), ¶¶ 142–48, 257.

The district court also relied heavily on the Standards of

Care promulgated by WPATH, Eknes-Tucker I, F. Supp. 3d at 1138–

39, 1145, which one dissenter considers the “leading authority” in

16 NHS has also placed severe restrictions on “gender affirming hormones,”

allowing for their use only after a child has turned sixteen and meets several

other criteria. See Prescribing of Gender Affirming Hormones (masculinising or fem-

inising hormones) as part of the Children and Young People’s Gender Service, Nat’l

Health Serv., Eng., (Mar. 21, 2024), https://www.england.nhs.uk/wp-con-

tent/uploads/2024/03/clinical-commissioning-policy-prescribing-of-gender-

affirming-hormones.pdf [https://perma.cc/Q2TX-5KWP].

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this area. Rosenbaum Dis. Op. at 29. But recent revelations indi-

cate that WPATH’s lodestar is ideology, not science. For example,

in one communication, a contributor to WPATH’s most recent

Standards of Care frankly stated, “[o]ur concerns, echoed by the

social justice lawyers we spoke with, is that evidence-based review

reveals little or no evidence and puts us in an untenable position in

terms of affecting policy or winning lawsuits.” This only reinforces

the district court’s improper reliance on the scientific claims of an

advocacy organization to craft constitutional law. Indeed, as oth-

ers have recognized, WPATH’s Standards of Care “reflect not con-

sensus, but merely one side in a sharply contested medical debate

over sex reassignment surgery.” Gibson v. Collier, 920 F.3d 212, 221

(5th Cir. 2019); see also Edmo v. Corizon, Inc., 949 F.3d 489, 497 (9th

Cir. 2020) (O’Scannlain, J., opinion respecting the denial of rehear-

ing en banc) (“The WPATH Standards are merely criteria promul-

gated by a controversial private organization with a declared point

of view.”). 17

These revelations only further underscore the reality that a

judge is not fit, in a preliminary posture and on a limited record, to

remove matters like this one from an ongoing public debate. Even

assuming parents possessed a right to compel access to certain

17 As the Fifth Circuit went on to explain, one of the doctors who helped draft

a previous edition of WPATH’s Standards of Care testified that the Standards

of Care “is not a politically neutral document.” Gibson, 920 F.3d at 222 (em-

phasis omitted) (quoting Kosilek v. Spencer, 774 F.3d 63, 78 (1st Cir. 2014) (en

banc)). Instead, “WPATH aspires to be both a scientific organization and an

advocacy group for the transgendered.” Id. (quoting Kosilek, 774 F.3d at 78).

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medical treatments for their children, this right certainly does not

include the ability to access substances that gravely threaten a

child’s development. Cf. Prince, 321 U.S. at 165 (“It is the interest

of youth itself, and of the whole community, that children be both

safeguarded from abuses and given opportunities for growth into

free and independent well-developed men and citizens.”). And if it

turns out that the substances at issue here have such effects, a judi-

cial ruling to the contrary would facilitate, rather than prevent, ir-

reparable harm.

Some substantive-due-process cases may be hard. Jordan

Dis. Op. at 1. This one is not. Judge Jordan reminds us “that it is a

constitution we are expounding.” Jordan Dis. Op. at 2 (alteration

adopted) (quoting Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398,

443 (1934)). 18 But “[p]recisely because ‘it is a constitution we are

expounding,’ we ought not to take liberties with it.” Nat’l Mut. Ins.

Co. of Dist. Of Col. v. Tidewater Transfer Co., 337 U.S. 582, 647 (1949)

(Frankfurter, J., dissenting) (quoting McCulloch v. Maryland, 17 U.S.

(4 Wheat.) 316, 407 (1819)). Our legal tradition rightly entrusts par-

ents with broad authority in the lives of their children. But that

18 As Justice Scalia explained, this line from Chief Justice Marshall has long

been misread to justify interpreting the Constitution in a way that is un-

moored from its text and history. See Antonin Scalia, Essay: Assorted Canards

of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 594–96 (1989); see

also Ogden, 25 U.S. (12 Wheat.) at 332 (Marshall, C.J., dissenting) (The Consti-

tution’s words “are to be understood in that sense in which they are generally

used by those for whom the instrument was intended [and] its provisions are

neither to be restricted into insignificance, nor extended to objects not com-

prehended in them, nor contemplated by its framers.”).

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tradition also provides no basis for concluding that this authority

extends to the circumstances presented by this case. The district

court thus erred by applying heightened scrutiny. The Act need

only satisfy the rational-basis test, and the Parent Plaintiffs do not

have a substantial likelihood of success in arguing that it does not.

See infra at 42–52.

B. Equal Protection

Judge Rosenbaum’s and Judge Wilson’s dissents also disa-

gree with our equal-protection holding, arguing that the Act dis-

criminates based on sex and transgender status. Rosenbaum Dis.

Op. at 46–63; Wilson Dis. Op. at 3–5. But the Act applies equally

to everyone regardless of their sex or transgender status. And

transgender status is not a classification protected by the Equal Pro-

tection Clause. These points are discussed in turn below.

1. The Act does not discriminate based on sex.

Supposedly, the Act unconstitutionally discriminates based

on sex because “but for the Minors’ birth-assigned sex,” they could

access puberty blockers and cross-sex hormones. Rosenbaum Dis.

Op. at 49. For example, Judge Rosenbaum notes that the Act pro-

hibits a “birth-assigned boy” from “tak[ing] estrogen” for the pro-

scribed purpose while a “birth-assigned girl” can take estrogen to

cure “an estrogen deficiency.” Id. In other words, Judge Rosen-

baum argues that the Equal Protection Clause requires Alabama to

make cross-sex hormones and puberty blockers available for the

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proscribed purpose so long as Alabama allows the use of puberty

blockers and cross-sex hormones for other purposes.

Therein lies the problem with her reasoning: The Act dis-

criminates based on purpose, not sex. The Act prohibits everyone

under the age of nineteen—regardless of their sex—from using

cross-sex hormones or puberty blockers “for the purpose of attempt-

ing to alter the appearance of or affirm [their] perception of [their]

gender or sex, if that appearance or perception is inconsistent with

[their] sex.” Act § 3–4(a) (emphasis added); Ala. Code § 43-8-1(18).

Likewise, the Act allows everyone under the age of nineteen—re-

gardless of their sex—to use cross-sex hormones and puberty block-

ers for other purposes, such as treating central precocious puberty.

Act § 4(b)(2).

True, the Act uses sex-specific terminology. See Wilson Dis.

Op. at 4–5. The Act prohibits prescribing or administering “su-

praphysiologic doses of testosterone . . . to females” and prescrib-

ing or administering “supraphysiologic doses of estrogen to males.”

Act § 4(a)(2)–(3). But this sex-specific language actually preserves

evenhandedness. Because of biological realities, the cross-sex hor-

mone regimen that one undergoes is necessarily dependent on

one’s sex. Males cannot use testosterone for the prohibited pur-

pose, and females cannot use estrogen for the prohibited purpose.

To the extent that the Act includes provisions that reference only

one sex, see id., it simply reflects these realities to equally proscribe

cross-sex hormones for both males and females. If the Act re-

stricted only the use of testosterone—but not estrogen—for the

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proscribed purpose, it would discriminate against females. And if

the Act restricted only the use of estrogen—but not testosterone—

for the proscribed purpose, it would discriminate against males. In

other words, the Act uses sex-specific language because it regulates

sex-specific medications. And, as noted in our panel opinion, “[t]he

regulation of a medical procedure that only one sex can undergo

does not trigger heightened constitutional scrutiny unless the reg-

ulation is a ‘mere pretex[t] designed to effect an invidious discrim-

ination against members of one sex or the other.’” Eknes-Tucker II,

80 F.4th at 1229 (alterations in the original) (quoting Dobbs, 597 U.S.

at 236).

Judge Rosenbaum and Judge Wilson both invoke Bostock v.

Clayton County, 590 U.S. 644 (2020). Rosenbaum Dis. Op. at 50, 54–

56; Wilson Dis. Op. at 3–4. But the meaning of the Equal Protec-

tion Clause was not at issue in Bostock, and the Supreme Court ex-

pressly declined to “prejudge” whether its reasoning applied to

other laws “that prohibit sex discrimination.” Bostock, 590 U.S. at

681. Notwithstanding Bostock’s limited holding, Judge Rosenbaum

reads Bostock to announce a new principle that applies to every anti-

discrimination provision in federal law, including a constitutional

provision that was ratified in 1868. Supposedly, after Bostock, all

classifications “based on transgender status” are classifications

“based on sex.” Rosenbaum Dis. Op. at 54. That reading ignores

the reasoning in Bostock.

Bostock relied heavily on the unique text of Title VII—

particularly, the words “because of,” “otherwise . . . discriminate

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against,” and “individual.” Eknes-Tucker II, 80 F.4th at 1228–29 (al-

teration in the original) (quoting Bostock, 590 U.S. at 656–58); see 42

U.S.C. § 2000e-2(a)(1). The Equal Protection Clause does not in-

clude any of this language. See U.S. Const. amend. XIV, § 1 (“No

State shall . . . deny to any person within its jurisdiction the equal

protection of the laws.”). As Justice Gorsuch—the author of Bos-

tock—observed when comparing the text of Title VI and the text of

the Equal Protection Clause, it “is implausible on its face” that

“such differently worded provisions should mean the same thing.”

Students for Fair Admissions, Inc. v. President & Fellows of Harvard

Coll., 600 U.S. 181, 308 (2023) (Gorsuch, J., concurring). Justice

Gorsuch’s point is no less relevant to Title VII and the Equal Pro-

tection Clause. See Skrmetti, 83 F.4th at 484 (finding that the rea-

soning of Bostock “applies only to Title VII”); 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 Bostock’s reasoning applies to the Equal

Protection Clause because the Fourteenth Amendment “predates

Title VII by nearly a century” and contains language that is “not

similar in any way” to Title VII’s); cf. Fowler v. Stitt, 104 F.4th 770,

801–02 (10th Cir. 2024) (Hartz, J., dissenting in part) (disagreeing

with the majority’s reflexive application of Bostock to the Equal Pro-

tection Clause). Because the language of the Equal Protection

Clause does not resemble the language of Title VII, Bostock’s rea-

soning does not apply here.

Next, two dissents cite Glenn v. Brumby, 663 F.3d 1312 (11th

Cir. 2011), and both claim that we distinguished Brumby by

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confining it to employment discrimination. Rosenbaum Dis. Op.

at 57; Wilson Dis. Op. at 3–4. Respectfully, the majority opinion

and Judge Brasher’s concurrence explained that Brumby is distin-

guishable because Brumby dealt with sex-based stereotypes about

how men should dress, not biological realities. Eknes-Tucker II, 80

F.4th at 1229 (“Insofar as section 4(a)(1)–(3) involves sex, it simply

reflects biological differences between males and females, not ste-

reotypes associated with either sex.”); id. at 1234 (Brasher, J., con-

curring) (“Unlike the employer’s decision in [Brumby], Alabama’s

statute does not fit the mold of a sex-based stereotype. The statute

isn’t based on a socially constructed generalization about the way

men or women should behave.”).

Judge Rosenbaum responds that it is a form of stereotyping

to prohibit minors from taking transitioning medications. See Ros-

enbaum Dis. Op. at 52–53. But there is a difference between pro-

hibiting biological men from wearing dresses, see Brumby, 663 F.3d

at 1314, 1318–19, and prohibiting minor boys from taking estrogen

“for the purpose of attempting to alter the appearance of or affirm

the minor’s perception of his . . . gender or sex, if that appearance

or perception is inconsistent with [his] sex,” Act § 4(a). The former

restriction is a stereotype about how men should dress, the latter

restriction is based on physical differences between males and fe-

males. And, as the Supreme Court has recognized, “[p]hysical dif-

ferences between men and women . . . are enduring.” United States

v. Virginia, 518 U.S. 515, 533 (1996). The recognition of those phys-

ical differences, which are inherent in the biology of every man and

woman, “is not a stereotype.” Nguyen v. I.N.S., 533 U.S. 53, 68

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(2001); see also Eknes-Tucker II, 80 F.4th at 1234 (Brasher J., concur-

ring).

Overall, the Act applies equally to minor males and minor

females. Both sexes can use puberty blockers and cross-sex hor-

mones to treat a medical disorder, Act § 4(b)(2), but neither sex

may use puberty blockers and cross-sex hormones “for the purpose

of attempting to alter the appearance of or affirm [their] perception

of [their] gender or sex, if that appearance or perception is incon-

sistent with [their] sex.” Id. § 4(a). Thus, our panel correctly held

that the Act is subject to rational-basis scrutiny, not intermediate

scrutiny. Eknes-Tucker II, 80 F.4th at 1230.

2. The text of the Act is neutral as to transgender status, and

transgender status is not a quasi-suspect classification.

Judge Rosenbaum also claims that the Act triggers interme-

diate scrutiny because transgender status is a quasi-suspect classifi-

cation. Rosenbaum Dis. Op. at 58–63. But as our panel opinion

explained, even if transgender status is a quasi-suspect classifica-

tion, the Act would not trigger heightened scrutiny because it dis-

criminates solely based on “purpose.” Act § 4(a); Eknes-Tucker II,

80 F.4th at 1228. Under the plain terms of the Act, any minor can

access puberty blockers and cross-sex hormones for an acceptable

purpose, such as treating central precocious puberty. Act

§ 4(b)(2). 19 To be sure, a facially evenhanded regulation can be

19 Judge Rosenbaum also states that people are not truly “transgender” if they

“experience some form of gender incongruence” but “ultimately embrace

their birth-assigned gender or detransition.” Rosenbaum Dis. Op. at 59. But

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subject to heightened scrutiny if it is a mere pretext for invidious

discrimination against a protected class. See Shaw v. Reno, 509 U.S.

630, 643–44 (1993). But the district court made no findings of such

a pretext here. Judge Rosenbaum’s argument fails on this point

alone.

More generally, transgender status is not a quasi-suspect

classification in the first place. While sitting en banc, we already

declined to recognize transgender status as a quasi-suspect classifi-

cation. See Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th

791, 803 n.5 (11th Cir. 2022) (en banc) (expressing “grave ‘doubt’

that transgender persons constitute a quasi-suspect class”). Fur-

ther, the Supreme Court “has not recognized any new constitu-

tionally protected classes in over [five] decades, and instead has re-

peatedly declined to do so.” Ondo v. City of Cleveland, 795 F.3d 597,

609 (6th Cir. 2015). Since 1973, the Supreme Court has declined to

recognize poverty, age, and mental disability as suspect or quasi-

suspect classifications. See San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1, 28–29 (1973) (poverty); Massachusetts Bd. of Ret. v. Mur-

gia, 427 U.S. 307, 313–14 (1976) (age); City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 442 (1985) (mental disability); see also Lyng

if that’s true, then not everyone who seeks medications “for the purpose of

attempting to alter the appearance of” their “sex,” is, in fact, transgender. Act

§ 4(a). Thus, if Judge Rosenbaum is correct, then the Act does not discriminate

based on transgender status—not everyone who seeks the relevant medication

for the relevant purpose would, in fact, be transgender.

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v. Castillo, 477 U.S. 635, 638 (1986) (“Close relatives are not a ‘sus-

pect’ or ‘quasi-suspect’ class.”).

Judge Rosenbaum would chart new territory by treating

transgender status as a quasi-suspect classification. The district

court never held that, see Eknes-Tucker I, 603 F. Supp. 3d at 1146–

48, and neither Judge Rosenbaum’s dissent nor Judge Wilson’s dis-

sent cite any record evidence suggesting that transgender persons

are a “discrete group” defined by “obvious, immutable, or distin-

guishing characteristics” and that they are “politically powerless.”

Lyng, 477 U.S. at 638. Unlike race, sex, or national origin,

transgender status is not “an immutable characteristic determined

solely by the accident of birth.” Frontiero v. Richardson, 411 U.S.

677, 686 (1973). Studies show that 61% to 88% of children with

gender dysphoria become comfortable with their sex “over the

course of puberty.” A trait is not “immutable” if it is “subject

to . . . change.” Adams, 57 F.4th at 807 (quoting Immutable, Oxford

English Dictionary (2d ed. 1989)).

Furthermore, transgender persons are not a “discrete

group” that exhibits “obvious” or “distinguishing” characteristics.

Lyng, 477 U.S. at 638. WPATH itself defines “transgender” as an

“[a]djective” used to describe anyone “who cross[es] or trans-

cend[s] culturally defined categories of gender.” Possible gender

identities described by WPATH and the American Psychological

Association include “boygirl,” “girlboy,” “genderqueer,” “bi-

gender,” “pangender,” “androgyne,” “genderless,” “gender neu-

tral,” “neutrois,” “agender,” and “genderfluid,” just to name a few.

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According to the American Psychological Association, possible

gender identities exist on a “wide spectrum” that defies the binary

nature of sex. That theory has no practical limits. Also, one of the

dissents argues that people are not truly “transgender” if they “ex-

perience some form of gender incongruence” but “ultimately em-

brace their birth-assigned gender or detransition.” Rosenbaum

Dis. Op. at 59. But if that’s true, then someone who currently iden-

tifies as a “boygirl,” for example, might not actually be transgender

based on their future self-perceptions or actions. A classification is

neither “obvious” nor “distinguishing” if it turns on a future that is

presently unknown. Like Rodriguez, this case “comes to us with no

definitive description of the classifying facts or delineation of the

disfavored class.” 411 U.S. at 19.

Finally, transgender people are not “politically powerless.”

Lyng, 477 U.S. at 638. “A national anti-discrimination law, Title VII,

protects transgender individuals in the employment setting,” and

“[f]ourteen States have passed laws specifically allowing some of

the treatments sought here.” Skrmetti, 83 F.4th at 487. The White

House recognizes an annual “Transgender Day of Visibility.” See

Proclamation No. 10724, 89 Fed. Reg. 22901 (March 29, 2024). The

Department of Justice is devoting considerable time and resources

as an intervenor plaintiff in this litigation. Twenty states and the

District of Columbia filed an amicus brief in support of the Plain-

tiffs. And every major law firm that has participated in this litiga-

tion has supported the Plaintiffs. All of these facts contradict a no-

tion of political powerlessness. True, Judge Rosenbaum cites sta-

tistics about the lamentable harassment that transgender people

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experience, Rosenbaum Dis. Op. at 60–61, but Cleburne is clear that

“some degree of prejudice from at least part of the public at large”

is not sufficient. 473 U.S. at 445. Significantly, in Cleburne, the Su-

preme Court rejected the argument that mental disability is a sus-

pect classification, id. at 442–46, despite a history of compulsory

sterilization, exclusion from public schools, and a system of “state-

mandated segregation and degradation” “that in its virulence and

bigotry rivaled, and indeed paralleled, the worst excesses of Jim

Crow,” id. at 462–63 (Marshall, J., concurring in the judgment and

dissenting in part). And since Cleburne, the Supreme Court has

never recognized a new suspect or quasi-suspect classification.

Neither the Plaintiffs, nor the district court, nor the dissenters have

provided a basis for us to do so here.

Because the Act does not discriminate based on a suspect or

a quasi-suspect classification, the Act is subject to rational-basis re-

view. Id. at 440, 446. To satisfy rational-basis review, Alabama

needs only one “conceivable basis” to proscribe cross-sex hor-

mones and puberty blockers for minors. See Jones v. Governor of Flor-

ida, 975 F.3d 1016, 1034 (11th Cir. 2020) (en banc) (quoting FCC v.

Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993)). As explained in the

next section, there are many conceivable bases for the Act, and

thus, the Plaintiffs lack a substantial likelihood of success on their

due process and equal protection claims.

C. Rational-Basis Review

Under rational-basis review, the question “is simply whether

the challenged legislation is rationally related to a legitimate state

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interest.” Lofton v. Sec’y of Dep’t of Child. & Fam. Servs., 358 F.3d

804, 818 (11th Cir. 2004). Alabama satisfied this remarkably lenient

standard for at least five reasons.

First, Alabama provided significant evidence that the medi-

cations covered by the Act are dangerous and ineffective. Alt-

hough the district court disagreed with that evidence, it acknowl-

edged that Alabama “offer[ed] some evidence that transitioning

medications pose certain risks.” Eknes-Tucker I, 603 F. Supp. 3d at

1145. That is sufficient to satisfy the rational-basis test. The Ala-

bama legislature is entitled to look at the competing evidence and

draw its own conclusions. Heller, 509 U.S. at 319 (“[R]ational-basis

review in equal protection analysis ‘is not a license for courts to

judge the wisdom, fairness, or logic of legislative choices.’” (quot-

ing Beach Commc’ns, 508 U.S. at 313)). To be sure, Alabama did not

need to cite any “evidence or empirical data” supporting the Act.

Beach Commc’ns, 508 U.S. at 315. “[R]ational speculation” would

have been sufficient. Id. Even so, Alabama’s evidence of the dan-

gers of cross-sex hormones and puberty blockers was legion.

Alabama provided declarations from six medical experts—

three endocrinologists (including two pediatric endocrinologists),

a clinical psychologist, a psychotherapist, and a pediatrician—who

testified to the acute dangers posed to children by these medica-

tions. Alabama also submitted six journal articles and public-health

reports that documented concerning data and evidence about the

proscribed treatments. And Alabama provided written testimony

from detransitioners, including Sydney Wright (discussed above),

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KathyGrace Duncan (Appendix A), Carol Frietas (Appendix B), and

Corinna Cohn (Appendix C). Although the district court’s order

discussed the testimony of Dr. James Cantor and Sydney Wright,

the district court never mentioned any of the other evidence de-

scribed in this paragraph. See Eknes-Tucker I, 603 F. Supp. 3d at

1142–43, 1145–46.

Alabama also presented evidence that healthcare authorities

and medical organizations in several countries—including Eng-

land, Finland, and Sweden—urge (and, in some cases, mandate)

that doctors rarely prescribe puberty blockers and cross-sex hor-

mones. In Sweden, for example, doctors can provide minors with

puberty blockers and cross-sex hormones in “exceptional cases”

only. Sweden’s National Board of Health and Welfare determined

that “the risks of puberty suppressing treatment with GnRH-ana-

logues and gender-affirming hormonal treatment currently out-

weigh the possible benefits.”

The information that has emerged since the panel’s opinion

only confirms what the panel already concluded: Alabama has a

rational basis for the Act. As discussed earlier, in March 2024, for

example, England’s NHS announced “that there is not enough ev-

idence to support the safety or clinical effectiveness of [puberty

suppressing hormones] to make the treatment routinely available”

in England. NHS Clinical Policy, supra n.3, at 3. And, in April 2024,

Dr. Hillary Cass published the results of a four-year review of pu-

berty blockers and cross-sex hormones in minors. See The Cass Re-

view, supra n.2. While formulating her report, Cass chaired a

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policy working group that the NHS commissioned in January 2020.

Id. at 75. The policy working group systematically examined “the

published evidence on the use of puberty blockers and [cross-sex]

hormones in children and young people” with the goal of “in-

form[ing] [NHS’s] policy position on their future use.” Id. Cass

found “no evidence that puberty blockers improve body image or

dysphoria, and very limited evidence for positive mental health

outcomes.” Id. at 179. Cass also concluded that puberty blockers

may negatively impact “neurocognitive development” and will

likely compromise a patient’s “bone density.” Id. at 178. Regarding

cross-sex hormones, Cass’s “systematic review” found inadequate

evidence supporting the “widespread” view—expressed in Judge

Rosenbaum’s dissent—that cross-sex hormones “reduce[] suicide

risk” for children suffering from gender dysphoria. Id. at 186, 195.

Cass also provided multiple reasons to question the reliability of

WPATH and concluded that the most recent iteration of the Stand-

ards of Care “overstates the strength of the evidence” supporting

its recommendations. Id. at 132; see also id. at 129–30 (concluding

that WPATH’s Standards suffer from a low “[r]igour of develop-

ment” and the lack of “[e]ditorial independence,” among other

things).

Second, Alabama had a rational basis to prohibit cross-sex

hormones and the other proscribed medications for minors be-

cause minors cannot appreciate the life-altering nature of the med-

ical treatments. The law frequently limits the ability of minors to

consent to certain activities. And evidence in the record suggests

that minors are incapable of knowingly consenting to the use of the

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proscribed medications. Alabama presented evidence from many

detransitioners who uniformly testified that they were not aware

of the long-term impacts of the treatments they underwent. Next,

Alabama provided declarations from several parents who testified

to the negative effects of cross-sex hormones and puberty blockers

on their children, even if their children suffered from gender dys-

phoria and desired medical transition. Furthermore, Alabama pre-

sented written testimony from nine parents who said that doctors,

therapists, and other practitioners pressured them to start their

children on cross-sex hormones and puberty blockers or otherwise

circumvented their wishes. For example, when one mother’s

twelve-year-old daughter said that she was a boy, the mother asked

her daughter’s gender clinic for a counseling referral before hor-

mone therapy. But an endocrinologist rebuffed the mother’s re-

quest, stating in front of the twelve-year-old daughter that the

mother needed “to get on board” with providing puberty blockers

and hormones if she did not “want [her] daughter to commit sui-

cide.”

This record evidence is consistent with information that has

come to light after the district court issued its order. As Dr. Cass

found in her April 2024 study, we know very little about the long-

term risks of these medications, which makes the idea of “informed

consent” nearly impossible for anyone, but especially for children

and adolescents. See The Cass Review, supra n.2, at 193–97.

Third, as discussed above, studies show that most children

with gender dysphoria grow out of it. As one of Alabama’s experts

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testified, “every study without exception has come to the identical

conclusion: Among prepubescent children who feel gender dys-

phoric, the majority cease to want to be the other gender over the

course of puberty—ranging from 61–88% desistance across the

large, prospective studies.” Alabama also presented evidence that

children are starting to identify as transgender because of social

contagion, not gender dysphoria. Teenage girls, in particular, are

starting to suddenly identify as transgender even if they have no

history of gender dysphoria as children. And, according to one of

Alabama’s experts, “[t]he majority of cases appear to occur within

clusters of peers and in association with increased social media use

and especially among people with autism or other neurodevelop-

mental or mental health issues.” Even the Plaintiffs’ expert, Dr.

Linda Hawkins, testified that gender clinics are “seeing an increase

in youth . . . who are exploring gender . . . . [T]hat is something

that is gaining popularity right now.” Alabama has a legitimate in-

terest in preventing harm to children who often do not suffer from

gender dysphoria, and even if they do, likely will grow out of it. It

is thus rational to require children to wait to undergo this type of

medical treatment until they are adults.

Fourth, notwithstanding assurances from organizations like

WPATH, there are significant unknowns about these treatments,

which recent developments only serve to highlight. The district

court’s order relied on WPATH’s Standards of Care, Eknes-Tucker

I, 603 F. Supp. 3d at 1138–39, which claim to provide “the highest

standards” for “safe,” “effective,” and “evidence-based” treatment

for people suffering from gender dysphoria. Judge Rosenbaum also

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suggests that courts should look to WPATH’s Standards of Care

for narrow tailoring purposes. Rosenbaum Dis. Op. at 44. But a

March 2024 leak of documents and audio recordings suggests that

WPATH is not genuine in its claim that these treatments are safe,

effective, and well understood, particularly for minors. See The

WPATH Files, supra n.4, at 72–241.

For instance, in a leaked recording of a WPATH Panel, Dr.

Daniel Metzger—an endocrinologist—frankly discussed the diffi-

culties of helping children and adolescents understand the effects

of cross-sex hormones and puberty blockers. Id. at 184–85. He

acknowledged, “the thing you have to remember about kids is that

we’re often explaining these sorts of things to people who haven’t

even had biology in high school yet.” Id. at 184. Later at the same

panel, he said, “it’s always a good theory that you talk about fertil-

ity preservation with a 14 year old, but I know I’m talking to a blank

wall.” Id. at 192. Another provider at the same panel discussed the

difficulty in helping nine-, ten-, and eleven-year-olds understand

the long-term effects of puberty blockers on their fertility. Id. at

193. “I’m definitely a little stumped,” she admitted. Id.

In one of the leaked documents, Dr. Marci Bowers—a gyne-

cological surgeon and WPATH’s President—states: “[A]cknowl-

edgement that de-transition exists to even a minor extent is consid-

ered off limits for many in our community.” Id. at 111. Bowers

agreed with this practice, continuing, “I do see talk of the [detran-

sition] phenomenon as distracting from the many challenges we

face.” Id. These recent revelations only further confirm the

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unsettled nature of this field, the risks involved for Alabama’s

youth, and the need for judicial caution.

Finally, it is rational for Alabama to conclude that there are

alternatives to childhood use of cross-sex hormones and puberty

blockers. Although the suicide rate is high in the transgender com-

munity, Dr. Cass’s April 2024 study concluded that “there is no ev-

idence that gender-affirmative treatments reduce [suicidality.]” See

The Cass Review, supra n.2, at 195. The report continued that the

available evidence “suggests that these deaths are related to a range

of other complex psychosocial factors and to mental illness.” Id.

Alabama could rationally conclude that suicidality—which is a

mental-health problem—should be treated with counseling, medi-

cation, and other forms of psychotherapy.

Comparatively, none of the studies that Judge Rosenbaum’s

dissent relies on provide a solid basis for her claim that “studies

have repeatedly shown that gender-affirming hormone therapy

markedly decreases suicidality and depression among transgender

minors who want such care.” Rosenbaum Dis. Op. at 41 n.22. Start

with the Tordoff study. Judge Rosenbaum claims that puberty

blockers and “gender-affirming” hormones led to a “60% decrease

in depression” and a “73% decrease in suicidality.” Id; see Diana M.

Tordoff, et al., Mental Health Outcomes in Transgender and Nonbinary

Youths Receiving Gender-Affirming Care, 5 J. Am. Med. Ass’n Network

Open 1, (2022). But this is misleading, as almost all the participants

who did not take puberty blockers or cross-sex hormones dropped

out of the study before its conclusion, weakening any potential

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conclusions. Tordoff, et al., Mental Health Outcomes, 5 J. Am. Med.

Ass’n Network Open at at 1; Tordoff, et al., Mental Health Outcomes,

Supplemental Online Content, eTable 2, eTable 3.

Next is the Green study. Judge Rosenbaum claims that this

study demonstrates a “40% decrease in depression and suicidality.”

Rosenbaum Dis. Op. at 41 n.22. It is true that the study represented

that receipt of hormone therapy was associated with lowered odds

of recent depression and the serious consideration of suicide in the

past year. Amy E. Green et al., Association of Gender-Affirming Hor-

mone Therapy With Depression, Thoughts of Suicide, and Attempted Su-

icide Among Transgender and Nonbinary Youth, 70 J. of Adolescent

Health 643, 647 (2022). But significantly, the authors also noted

that, because of the study’s cross-sectional design, “causation

[could not] be inferred.” Id. at 648.

Judge Rosenbaum next relies on the Turban study, which

she claims demonstrates a “statistically significant decrease in sui-

cidal ideation.” Rosenbaum Dis. Op. at 41 n.22; see Jack L. Turban

et al., Pubertal Suppression for Transgender Youth and Risk of Suicidal

Ideation, 145 Pediatrics 1, 5–6 (2020). This study pulled data from

the 2015 US Transgender Survey, but out of the 3,494 participants

in the study, only 89 reported that they received puberty blockers.

Id. at 3–4. The authors reported that “[t]reatment with pubertal

suppression among those who wanted it was associated with lower

odds of lifetime suicidal ideation when compared with those who

wanted pubertal suppression but did not receive it.” Id. at 5. But

near the end of their paper, the authors admit that the design of

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their study “does not allow for determination of causation.” Id. at

7. Further, as detailed in a review of the study, there are good rea-

sons to question the data set used by the authors, for it “included

older respondents who, in fact, had no opportunity to obtain these

drugs and so cannot be used for comparison.” Michael Biggs, Pu-

berty Blockers and Suicidality in Adolescents Suffering from Gender Dys-

phoria, 49 Archives of Sexual Behav. 2227, 2228 (2020). The Turban

study also fails to control for preexisting psychological problems.

In order to provide true insight, the study would need to measure

“the respondent’s psychological problems before [the puberty

blockers were] prescribed or withheld.” Id. (emphasis omitted).

Without this information, “a negative association found many

years after treatment is compatible with three scenarios: puberty

blockers reduced suicidal ideation; puberty blockers had no effect

on suicidal ideation; [or] puberty blockers increased suicidal idea-

tion, albeit not enough to counteract the initial negative effect of

psychological problems on eligibility.” Id. And finally, England’s

National Institute for Health and Care Excellence excluded the

Turban study from its evidence report because the data for puberty

blockers was “not reported separately from other interventions.”

Therefore, the Turban study, as with the others already discussed,

provides no probative causal connection between suicidality and

the use of puberty blockers.

Finally, Judge Rosenbaum turns to the Allen study, which

she claims documents a “75% decrease in suicidality.” Rosenbaum

Dissenting Op at 41 n.22; see Luke Allen et al., Well-being and Sui-

cidality Among Transgender Youth after Gender-affirming Hormones, 7

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Clinical Practice in Pediatric Psychology 302, 306 (2019). But like

the other studies, the Allen study’s authors could not conclude that

the hormone treatments were “causally responsible for the benefi-

cial outcomes observed,” because, in this case, the study lacked a

control group. Id. at 309. The authors also did not screen for

whether the patient was actively receiving psychotherapy, which

further weakens any inference of causation. See id. at 308.

In all, none of these studies provides real support for Judge

Rosenbaum’s discussion of the supposed benefits of cross-sex hor-

mones and puberty blockers. Nor do they undermine Cass’s four-

year independent review of the available evidence, which con-

cluded that “there is no evidence that gender-affirmative treatments

reduce [suicidality.]” See The Cass Review, supra n.2, at 195 (em-

phasis added). All of this underscores that this is an issue for the

political branches, not the judicial branch.

Ultimately, the Alabama legislature is entitled to review all

the available evidence and decide whether to circumscribe cross-

sex hormone and puberty blocking medications for the purposes

set forth in the Act. On rational-basis review, our role is not “to

judge the wisdom, fairness, or logic of [that] legislative choice[].”

Beach Commc’ns, 508 U.S. at 313. Our role is to simply ask whether

there is a “conceivable basis” for Alabama’s law. Id. at 315. Under

this lenient standard, the existing evidence overwhelmingly sug-

gests that Alabama has a rational basis for the Act. Our panel opin-

ion correctly determined that the Act likely satisfies rational-basis

scrutiny.

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III. CONCLUSION

Alabama enacted an entirely rational law. The Fourteenth

Amendment, as informed by text, history, tradition, and our prec-

edents, does not prevent Alabama from doing so. Instead of acting

as a “super-legislature,” Day-Brite Lighting Inc. v. Missouri, 342 U.S.

421, 423 (1952), our Court has correctly allowed Alabama to “safe-

guard[] the physical and psychological well-being” of its minors,

Globe Newspaper Co., 457 U.S. at 607. I therefore concur in the de-

cision to deny rehearing en banc.

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Appendix A: KathyGrace Duncan 20

1. I am over the age of 18 years and am not a party to this ac-

tion. I have actual knowledge of the following facts and if called

upon to testify to them could and would do so competently. I am

submitting this Declaration in support of Defendants’ opposition

to Plaintiffs’ Motion for a Temporary Restraining Order and Pre-

liminary Injunction.

2. Alabama’s Vulnerable Child Compassion and Protection

Act (“VCCAP”) is a necessary, potentially life-saving law that will

protect vulnerable children and their parents from the heartbreak-

ing regret, irreversible physical changes, sexual dysfunction and

emotional pain that I have experienced after undertaking medical

and surgical interventions aimed at “transitioning” me from a fe-

male to a “male.”

3. From a very young age, I was what is called today “gender

non-conforming.” I preferred male clothing, I thought I was a

“boy” and I wanted to live as one.

4. I grew up in a dysfunctional family in which my mother was

often the victim of my father’s emotional and verbal abuse. As a

result I internalized the message that “my dad would love me if I

were a boy.”

20 The following appendices are reproductions of written declarations submit-

ted by Alabama.

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5. Sexual abuse by a family member between the ages of 10

and 12 further convinced me that being a girl meant being unsafe

and unlovable.

6. In sixth grade, I learned about female to male transsexuals.

I believed that my distress was caused by not having the “right”

body and the only way to live a normal life was to medically tran-

sition and become a heterosexual male.

7. At age 19, I began living as a man named Keith and went to

a therapist who formally diagnosed me with gender dysphoria. I

began testosterone and a year later had a mastectomy. At the time,

I believed it was necessary so that what I saw in the mirror matched

what I felt on the inside.

8. I never viewed my condition as touching on mental health

issues, and neither did the therapist who diagnosed me. The ques-

tion of whether my self-perception and desire to transition was re-

lated to [my] mental health issues was never explored.

9. After 11 years passing as a man and living what I thought

was a relatively “happy” and stable life (which included having a

number of girlfriends), I realized that I was living a lie built upon

years of repressed pain and abuse. Hormones and surgery had not

helped me resolve underlying issues of rejection, abuse, and sexual

assault. I came to understand that my desire to live as a man was a

symptom of deeper unmet needs.

10. With the help of life coaches and a supportive community, I

returned to my female identity and began addressing the underly-

ing issues that had been hidden in my attempt to live as a man. I

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experienced depression that I had repressed for years and grieved

over the irreversible changes to my body.

11. If someone had walked with me through my feelings in-

stead of affirming my desire to transition, then I would have been

able to address my issues more effectively and not spend so many

years making and recovering from a grave mistake.

12. Alabama’s VCCAP Act is necessary and essential because it

will give children and adolescents a chance to walk through their

feelings and address their underlying issues effectively without be-

ing pulled onto the affirmation conveyor belt. Hormones and sur-

gery are irreversible decisions that children and adolescents are in-

capable of making.

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Appendix B: Carol Frietas

1. I am over the age of 18 years and am not a party to this ac-

tion. I have actual knowledge of the following facts and if called

upon to testify to them could and would do so competently. I am

submitting this Declaration in support of Defendants’ opposition

to Plaintiffs’ Motion for a Temporary Restraining Order and Pre-

liminary Injunction.

2. Alabama’s Vulnerable Child Compassion and Protection

Act (“VCCAP”) is a necessary, potentially life-saving law that will

protect vulnerable children and their parents from the heartbreak-

ing regret, irreversible physical changes, and emotional pain that I

have experienced after undertaking medical and surgical interven-

tions aimed at “transitioning” me from a female to a “male.”

3. As a youth, I was what today is called “gender non-conform-

ing,” but I lived in a household where gender expression was

strictly aligned with cultural stereotypes. I was not allowed to wear

boys’ clothes or play boys’ sports.

4. At puberty I realized I was same-sex attracted with crushes

on girls. I became depressed and anxiety-ridden as I feared what

“being gay” might mean to how I lived my life and my family rela-

tionships. I dropped out of school.

5. At age 20, I began to meet other LGBT youth and my life

stabilized. However, I also learned that many masculine females,

like me, felt that they were “born in the wrong body” and were

transitioning, so I adopted that persona.

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6. I went to a gender therapist who diagnosed me with gender

dysphoria and told me that transition was the only treatment that

would alleviate my discomfort and anxiety.

7. However, at that time there were gatekeeping standards for

gender transition, which required that I first live as man for six

months, including using a male name, showing a male appearance,

and using male spaces. I had very large breasts and could not pass

for a male in male spaces, so I did not pursue testosterone at that

time. I viewed myself as a male trapped in the “wrong body,” but

my mental health otherwise was stable.

8. In 2014, I revisited the idea of transitioning, believing it

would make me feel better because I was undergoing trauma in

various forms. My grandmother who had practically raised me

died. I had suffered severe abuse and neglect in childhood, and in

retrospect believe I was experiencing symptoms of PTSD from

that. I had just become a new mother a couple of months before

my brother-in-law committed suicide.

9. I spiraled downward and wanted out. I couldn’t commit su-

icide because I was a mother, so I returned to the idea of transition,

believing it would help me feel better. By that time the require-

ments for testosterone had lessened. I went to Planned

Parenthood for testosterone and was given it right away, with no

information. I was not given any information on uterine atrophy,

vaginal atrophy, or other effects of testosterone and the staff did

not talk about any of my emotional or mental health issues.

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10. Four months after starting testosterone, I went to a plastic

surgeon for a mastectomy. I needed a letter from a therapist and

received one from the therapist who had affirmed me and origi-

nally recommended transition. As was true with testosterone, I

was not given any information about the procedure. Instead I had

a consultation with the surgeon, who said “this is what we are go-

ing to do,” drew on my chest, took pictures and asked me what I

wanted out of the surgery. He said “we’ll create a masculine look-

ing chest, you’ll look great.”

11. During the first four months on testosterone menstruation

stopped, my sex drive went way up, my voice deepened, and facial

and body hair came in. As I continued on testosterone, my person-

ality changed drastically and my verbal abilities declined. Testos-

terone lowered and muted my emotions and empathy, but also

gave me a lot of energy and a sense of a high. My depression and

anxiety worsened to the point that I was having such severe panic

attacks that I could not leave home. I told my doctors that I

thought the testosterone was making the anxiety worse, but they

said no.

12. I went to a psychiatrist . . . specifically to deal with the de-

pression and I was provided with an anti-depressant that really

worked. I felt mentally stable and able to address the trauma that

led me to transition.

13. Within a month of starting the anti-depressant, I realized

that I had not needed to transition. It was the biggest mistake I had

ever made. I did not detransition for a year because I couldn’t

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believe that it was so easy, i.e., that anti-depressants alleviated my

depression and enabled me to think clearly and reason better. This

allowed me [to] address my internalized homophobia and child-

hood abuse through therapeutic means.

14. Meanwhile, my health began going downhill. Before going

on testosterone, I had no health problems. After being on it for

four years, I was pre-diabetic, had high cholesterol, and had a high

red blood cell count to the point that doctors were recommending

that I donate blood to reduce the volume.

15. I stopped taking testosterone and four months later my

blood work was back down to normal. I thought to myself “How

do they [doctors] not know about this?” Going off testosterone al-

lowed me to finally sleep. I felt like I never slept all the time that I

was taking testosterone. Going off testosterone also helped with

empathy and other emotions. My personal relationships, including

my relationship with my wife, were better.

16. I believe that healthcare providers did not ask me about

mental health issues because they believed that those issues were

caused by gender dysphoria and that transitioning would fix the

problem. In fact, the opposite was true.

17. I would have been spared physical, psychological, and emo-

tional losses if I had received a proper diagnosis and treatment for

PTSD and depression before undergoing years of medical and sur-

gical interventions. Alabama’s VCCAP Act is necessary and essen-

tial because it will give children and adolescents the chance to work

through and address their underlying issues such as depression or

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PTSD effectively without being pulled onto the affirmation con-

veyor belt. Hormones and surgery are irreversible decisions that

children and adolescents are incapable of making.

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Appendix C: Corinna Cohn

My name is Corinna Cohn. I am over the age of 19, I am

qualified to give this declaration, and I have personal knowledge of

the matters set forth herein.

In or about 2nd grade, I saw a psychologist for problems re-

lated to being bullied and emotional regulation. After less than a

year, my parents chose to discontinue therapy. I continued to be

bullied and had problems forming friendships. Other boys ex-

cluded me from social activities. Later in elementary school I be-

gan to pray to be made into a girl, which I thought would allow me

to fit in better. This became a fixation for me.

In high school, I confessed to my parents that I wanted to

become a woman. They brought me to see the same psychologist

I’d had as a child, and she diagnosed me with having gender iden-

tity disorder. Upon receiving my diagnosis, my parents again chose

to discontinue my therapy. I continued to have problems socializ-

ing at school and experienced depression and anxiety on a daily ba-

sis.

At the age of 17, I gained access to the Internet. This was

prior to the popularization of the World Wide Web, but I was able

to use message boards . . . in order to find other members of what

today would be called the “trans community.” Adult transgender

women befriended me, supplied me with validation and support,

and provided information on how I could transition to become a

transgender woman.

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At the age of 18, I resumed my sessions with my psycholo-

gist with the goal of receiving a prescription for cross-sex hormones

and eventual sex reassignment surgery. Due to my prior relation-

ship with my psychologist, I was able to gain a letter of recommen-

dation to an endocrinologist and was prescribed estrogen. The en-

docrinologist was referred to me by transgender friends on the In-

ternet. I began living as a woman and had my legal identification

updated to reflect my chosen name.

I had sex reassignment surgery in Neenah, Wisconsin in

1994. I was only 19 years old. Securing the appointment required

letters from two therapists along with a letter from my endocrinol-

ogist. My surgeon told me I was the second-youngest patient he

had operated on. The surgery involved the removal of my testicles,

penectomy, and vaginoplasty. It was successful and without com-

plication.

After healing from my sex change surgery I thought that my

transition journey was over. I discontinued therapy, and I began

focusing on my career. I found it was easier to socialize and make

new friends with my new confidence and feelings of being my au-

thentic self. As I reached my late twenties, my friends began pair-

ing off and starting families. I discovered that it was very difficult

to find a partner who wanted to do the same with me.

Although I was in denial for several years, I eventually real-

ized that my depression and anxiety related to my gender identity

had not resolved. It was not unusual for me to spend entire week-

ends in my room crying and entertaining thoughts of suicide.

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In my mid-thirties I became interested in radical feminism.

I am not a feminist, nor have I ever been, but I wanted to reconcile

how feminist concepts applied to people like myself: males who try

to turn ourselves into women. One of the concepts I found pivotal

was the feminist criticism of biological essentialism, which chal-

lenges the idea that men and women are destined to fulfill rigid sex

roles. Once I understood this criticism I realized that my more ste-

reotypically feminine attitudes and behaviors did not therefore

make me a woman, but rather a feminine man. In retrospect, my

self-perception of being a woman also required that I overlook or

discount traits that are more stereotypically masculine. Although

it took time for this realization to fully sink in, a side effect was that

I stopped having bouts of depression and anxiety related to my gen-

der identity. I have not had any depressive episodes related to gen-

der identity in ten years. As a teenager I was unprepared to under-

stand the consequences of my decision to medicalize my transition

despite the rigorous controls that were in place to ensure that pa-

tients would not be harmed from gender affirming care.

...

I wish I could persuade other boys who wish to become

women that the changes they seek are only superficial. Hormones

and surgery are unable to reveal an authentic self, and anyone who

promises otherwise is, in my opinion, deliberately misleading

young people to follow a one-way track to a lifetime of medicaliza-

tion. Although some people may choose to transition, and may

even enjoy a higher quality of life, there is no reason why this

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irreversible decision needs to be made in adolescence. Adults who

advocate for adolescent transition do so without understanding

what tradeoffs early transition entails, which includes the loss of

fertility, the likelihood of sexual dysfunction, and the likelihood of

surgical complication inflicted at an early age from elective proce-

dures. Unfortunately, I do understand some of these tradeoffs

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WILSON, Circuit Judge, dissenting from the denial of rehearing en

banc, joined by JORDAN, Circuit Judge:

This case presents numerous questions “of exceptional im-

portance” worthy of en banc review. Fed. R. App. P. 35(a)(2). See-

ing that this case implicates the contours of substantive due pro-

cess, fundamental rights, and equal protection, it is difficult to en-

vision issues of greater importance.

I. Substantive Due Process

The divergent descriptions of the fundamental right at issue

and disagreement over whether substantive due process protects

that right demonstrate a need for rehearing en banc.

The district court relied on the Supreme Court’s decision in

Troxel v. Granville, among others, which recognized the fundamen-

tal right of parents to “make decisions concerning the care, cus-

tody, and control of their children.” 530 U.S. 57, 66 (2000) (plurality

opinion); see also Pierce v. Soc’y of the Sisters of the Holy Names of Jesus

and Mary, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S.

390, 399 (1923). The district court then determined that this recog-

nized fundamental right includes the “right to treat [one’s] children

with transitioning medications subject to medically accepted stand-

ards.” Eknes-Tucker v. Marshall, 603 F. Supp. 3d 1131, 1144 (N.D. Ala.

2022). Judge Rosenbaum takes a parallel approach in her dissent

from denial of rehearing. She identifies the fundamental right at

issue as one that sits within Parham v. J.R.’s more general fundamen-

tal right. See 442 U.S. 584, 602 (1979). However, her articulation is

more specific; she describes the fundamental right at issue as the

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“right to direct that [one’s] child receive well-established, evidence-

based, non-experimental medical treatment, subject to medically

accepted standards and a physician’s independent examination and

medical judgment.” Rosenbaum Dissent at 1. Meanwhile, Judge

Jordan broadly describes the fundamental right as “the right of par-

ents to obtain medically-approved treatment for their children.”

Jordan Dissent at 22. In contrast, the panel describes the funda-

mental right at issue as only “the right to treat [one’s] children with

transitioning medications subject to medically accepted standards,”

which it views as separate and distinct from the fundamental right

to “make decisions concerning the ‘upbringing’ and ‘care, custody,

and control’ of one’s children.” Eknes-Tucker v. Governor of Alabama,

80 F.4th 1205, 1224 (11th Cir. 2023). All four opinions articulate the

fundamental right at issue with varying degrees of specificity. Re-

hearing en banc would have provided us with an opportunity to

clarify the fundamental right at issue and the protections guaran-

teed by the Due Process Clause. 1

1 Incidentally, I note several inconsistencies in Judge Lagoa’s Statement. For

one, the Statement discusses the facts and introduces new factual material.

See Judge Lagoa’s Statement at 4–6, 29–31, 44, 48–49. We must respect the

district court as the finder of fact. See Gonzalez v. Governor of Georgia, 978 F.3d

1266, 1270 (11th Cir. 2020). Neither the panel nor Judge Lagoa can reevaluate

factual determinations or consider materials not before us, as the Statement

does. See also Rosenbaum Dissent at 8 n.7. Further, I struggle with Judge La-

goa’s discussion of medical findings, given her pronouncement that “[n]either

an unelected district judge nor unelected circuit judge should resolve” policy

questions informed by scientific, philosophical, and moral considerations. If

this case presents policy questions that courts are ill-suited to resolve, a

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II. Equal Protection

Like Judge Rosenbaum, I am also concerned with the panel’s

equal protection analysis—particularly its quick and improper dis-

missal of Bostock and Brumby. The panel concludes that because

Bostock and Brumby involved gender stereotyping in the context of

employment discrimination, their holdings are irrelevant here. I

am not so sure.

In Brumby, we explained that “[a] person is defined as

transgender precisely because of the perception that his or her be-

havior transgresses gender stereotypes,” and accordingly held that

“discrimination against a transgender individual because of her

gender-noncomformity is sex discrimination.” Glenn v. Brumby, 663

F.3d 1312, 1316–17 (11th Cir. 2011). Our analysis drew from “foun-

dational cases” in which the Supreme Court “concluded that dis-

criminatory state action could not stand on the basis of gender ste-

reotypes.” Id. at 1319. But these cases were not limited to the em-

ployment context and included examples of gender stereotyping in

the provision of social security benefits, military benefits, educa-

tion, and child support payments. Id. at 1319–20. The same is true

of Bostock, which held that “discrimination based on . . .

transgender status necessarily entails discrimination based on sex.”

Bostock v. Clayton Cnty., 590 U.S. 644, 669 (2020). In reaching this

holding, the Supreme Court also relied on precedent describing in-

stances of discrimination more broadly. See id. at 677–78. The

statement for denial of rehearing en banc is not the place for credibility deter-

minations regarding evidence.

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panel looks only to Bostock and Brumby’s employment outcome, ra-

ther than drawing from the underlying reasoning in each case to

determine when gender and sex stereotyping rises to the level of a

constitutional violation. 2 See Fowler v. Stitt, 104 F.4th 770, 790 (10th

Cir. 2024) (“Although that was the only question the Supreme

Court decided, the Court did not indicate that its logic concerning

the intertwined nature of transgender status and sex was confined

to Title VII.”).

Judge Brasher’s concurrence, in which he states that the Act

does not contain a sex classification, is also indicative of the need

for en banc review. Eknes-Tucker, 80 F.4th at 1233 (Brasher, J., con-

curring). The Act is aimed at addressing the treatment of minors

who experience “a discordance between the individual’s sex and

sense of identity.” Ala. Code § 26-26-2(16). The word “sex” is not

only, as Judge Brasher concedes, riddled throughout the Act, it is

used to separate minors who experience a “discordance” between

their birth-assigned sex and gender identity from those who do not

2 See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (explaining that

gender stereotyping can play a role in gender-based discrimination); City of

L.A., Dep’t of Water and Power v. Manhart, 435 U.S. 702, 709–10 (1978) (stating

that employment practices which classify people based on sex often “preserve

traditional assumptions about groups rather than thoughtful scrutiny of indi-

viduals”); Stanton v. Stanton, 421 U.S. 7, 14–15 (1975) (finding that “‘old no-

tions’” of the traditional roles of men and women did not support Utah’s sex-

based classification of child support payments).

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experience such a “discordance.” This seems like a sex-based clas-

sification. 3

The Act as it stands now shapes the way parents of

transgender children may care for their children, while parents of

cisgender children remain unaffected. Should a parent of a child be

prevented from seeking medical care because of the sex of their

child? See Stanton, 421 U.S. at 14–15 (“A child, male or female, is

still a child.”). Reading the Act as though it does not distinguish

and classify minors will only lead to future confusion and contra-

dictory results in the interpretation of similar state statutes across

the circuit.

* * *

For these reasons, it is difficult to envision issues of greater

importance than those presented here. We should have reheard

this case en banc. Accordingly, I respectfully dissent from our re-

fusal to do so.

3 See Kadel v. Folwell, 100 F.4th 122, 146 (4th Cir. 2024) (en banc) (“[G]ender

dysphoria is so intimately related to transgender status as to be virtually indis-

tinguishable from it. The excluded treatments aim at addressing incongruity

between sex assigned at birth and gender identity, the very heart of

transgender status.”).

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JORDAN, Circuit Judge, joined by ROSENBAUM and JILL PRYOR, Cir-

cuit Judges, dissenting from the denial of rehearing en banc.

Substantive due process is hard. Acknowledging the com-

plexity of the doctrine, I write to discuss what I perceive to be some

analytical flaws in the panel’s opinion.

I

In this case, the panel characterized the liberty interest in

part by asking whether there is a history of recorded uses of tran-

sitioning medications for transgender individuals (e.g., puberty

blockers and cross-sex hormone treatments) as of 1868, when the

Fourteenth Amendment was ratified. Finding no such history, the

panel concluded that there is no fundamental right for parents to

treat their children with such medications. See Eknes-Tucker v. Gov-

ernor of Alabama, 80 F.4th 1205, 1220–21, 1224 (11th Cir. 2023).

The panel’s decision necessarily means that the fundamental

right of parents to obtain medical treatment for their children ex-

tends only to procedures and medications that existed in 1868, and

not to modern advances like the polio vaccine (developed in the

1950s), cardiac surgery (first performed in 1893), organ transplants

(first successfully completed in 1954), and treatments for cancer

like radiation (first used in 1899) and chemotherapy (which started

in the 1940s). See Judge Rosenbaum Dissent at Part II.A.2. There

is admittedly some support in our cases for the panel’s approach,

see Morrissey v. United States, 871 F.3d 1260, 1269–70 (11th Cir. 2017)

(holding that a man does not have a substantive due process right

to procreate through in-vitro fertilization because that technology

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was only successfully developed in the 1970s), but that analysis is

too simple and ignores many Supreme Court cases that define fun-

damental rights at a much more general level without requiring es-

tablished and precise historical pedigrees. Cf. Obergefell v. Hodges,

576 U.S. 644, 664 (2015) (“The generations that wrote and ratified

the Bill of Rights and the Fourteenth Amendment did not presume

to know the extent of freedom in all of its dimensions, and so they

entrusted to future generations a charter protecting the right of all

persons to enjoy liberty as we learn its meaning.”); Home Bldg. &

Loan Ass’n v. Blaisdell, 290 U.S. 398, 442–43 (1934) (“It is no answer

to say that this public need was not apprehended a century ago, or

to insist that what the provision of the Constitution meant to the

vision of that day it must mean to the vision of our time. If by the

statement that what the Constitution meant at the time of its adop-

tion it means today, it is intended to say that the great clauses of

the Constitution must be confined to the interpretation of the

framers, with the conditions and outlook of their time, would have

placed upon them, the statement carries its own refutation. It was

to guard against such a narrow conception that Chief Justice Mar-

shall uttered the memorable warning: ‘We must never forget, that

it is a constitution we are expounding[.]’”) (internal citations and

quotations omitted).

Some have said that in constitutional law the “[l]evel of gen-

erality is everything[.]” L.W. v. Skrmetti, 83 F.4th 460, 475 (6th Cir.

2023), cert. granted, --- S.Ct. ----, 2024 WL 3089532 (2024). Even if it

is not everything, the level of generality is very important and often

determinative. In my view, the panel asked the wrong question by

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defining the asserted right in too granular a way, and as a result

reached the wrong answer. Cf. Ala. Legis. Black Caucus v. Alabama,

575 U.S. 254, 279 (2015) (“Asking the wrong question may well have

led to the wrong answer.”). In the pages that follow, I try to explain

why.

II

When it comes to challenges to legislation, the substantive

component of the Due Process Clause “protects those fundamen-

tal rights and liberties which are, objectively, deeply rooted in this

Nation’s history and tradition, . . . and implicit in the concept of

ordered liberty, such that neither liberty nor justice would exist if

they were sacrificed[.]” Washington v. Glucksberg, 521 U.S. 702, 720–

21 (1997) (citations and internal quotation marks omitted). But

substantive due process also sometimes protects against abusive ex-

ecutive action. In that context the question is whether the conduct

at issue constitutes an “abuse of power . . . which shocks the con-

science.” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).

The panel here in part relied on the substantive due process

aspect of our decision in Bendiburg v. Dempsey, 909 F.2d 463, 468

(11th Cir. 1990), calling it the “most relevant” Eleventh Circuit

precedent dealing with “parents’ liberty interest to control the up-

bringing of their children.” Eknes-Tucker, 80 F.4th at 1223. I think

the panel incorrectly characterized Bendiburg and mistakenly

viewed it as the “most relevant” of our cases.

In Bendiburg, a father asserted a substantive due process

claim based on the involuntary insertion of a certain catheter on

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his son by private parties allegedly acting in concert with state offi-

cials. The district court in Bendiburg characterized the substantive

due process claim as one alleging abusive executive action, and re-

jected it: “The most widely accepted view is that substantive due

process is violated by government conduct that ‘shocks the con-

science’ or when the government engages in action ‘which offends

those canons of decency and fairness which express the notions of

justice of English speaking peoples.’ The question before the court

is thus whether the evidence of record suggests state conduct that

was so shocking or egregious as to give rise to a claim for damages

under the concept of substantive due process. The court finds that

it does not.” Bendiburg v. Dempsey, 707 F. Supp. 1318, 1324 (N.D.

Ga. 1989) (citations omitted).

On appeal, the Bendiburg panel af

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