Opposition Brief — Paul A. Eknes-Tucker, et al., Petitioners v. Steven T. Marshall, Attorney General of Alabama, et al.

Supreme Court briefJan 27, 2025

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Nos. 24-582, 24-612

In the Supreme Court of the United States

──────────────────────────

UNITED STATES OF AMERICA,

Petitioner,

STEVEN T. MARSHALL,

ATTORNEY GENERAL OF ALABAMA, et al.,

Respondents.

──────────────────────────

PAUL A. EKNES-TUCKER et al.,

Petitioners,

STEVEN T. MARSHALL,

ATTORNEY GENERAL OF ALABAMA, et al.,

Respondents.

──────────────────────────

On Petitions for Writs of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

──────────────────────────

RESPONDENTS’ BRIEF IN OPPOSITION

──────────────────────────

Christopher Mills

Steve Marshall

SPERO LAW LLC

Alabama Attorney General

557 E. Bay St., #22251

Edmund G. LaCour Jr.

Charleston, SC 29451

Solicitor General

Counsel of Record

John J. Bursch

A. Barrett Bowdre

ALLIANCE DEFENDING

Principal Deputy Solicitor General

FREEDOM

STATE OF ALABAMA

440 First Street, NW

OFFICE OF ATTORNEY GENERAL

Suite 600

501 Washington Ave.

Washington, DC 20001

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@AlabamaAG.gov

Counsel for Respondents (continued on next page)

]

James A. Campbell

Roger G. Brooks Sr.

ALLIANCE DEFENDING

FREEDOM

44180 Riverside Pkwy

Lansdowne, VA 20176

Jonathan A. Scruggs

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

David H. Thompson

Peter A. Patterson

Brian W. Barnes

John D. Ramer

COOPER & KIRK, PLLC

1523 New Hampshire Ave., NW

Washington, D.C. 20036

QUESTIONS PRESENTED

In 2022, the Alabama Legislature determined that

using puberty blockers, cross-sex hormones, and sexchange surgeries to treat minors suffering from gender dysphoria carried significant risks such as sterility and sexual dysfunction and had not been shown to

resolve the underlying psychological maladies at issue. “For these reasons,” the Legislature concluded

that “the decision to pursue a course of hormonal and

surgical interventions to address a discordance between the individual’s sex and sense of identity should

not be presented to or determined for minors who are

incapable of comprehending the negative implications

and life-course difficulties attending to these interventions.”

Plaintiffs and the United States challenged Alabama’s law and sought a preliminary injunction,

which the district court granted on both equal protection and substantive due process grounds. The court

acknowledged that “transitioning medications come

with risks” like “loss of fertility and sexual function.”

App.3a.1 “Nevertheless,” the court said, a private advocacy organization—the World Professional Association for Transgender Health (WPATH)—“recognizes

transitioning medications as established medical

treatments.” Id. So the court enjoined Alabama’s law.

App.29a.

The Eleventh Circuit vacated the injunction, holding that the district court erred by applying heightened scrutiny and finding that Alabama’s health-and1 Appendix citations are to Plaintiffs’ appendix in Eknes-Tucker,

No. 24-612.

welfare law likely passes rational-basis review. A year

later, the court of appeals denied Plaintiffs’ petition

for rehearing en banc.

While the Eleventh Circuit was deciding the preliminary injunction appeal, Alabama prepared for final adjudication, conducting extensive discovery and

moving for summary judgment. That motion is now

pending before the district court, but the case has

been stayed pending this Court’s decision in United

States v. Skrmetti, No. 23-477 (argued Dec. 4, 2024).

The questions presented are:

1. Whether the Equal Protection Clause of the

Fourteenth Amendment forbids States from

prohibiting pediatric sex-change procedures for

minors.

2. Whether the Due Process Clause provides parents a fundamental right to obtain sex-change

procedures for their children that the State otherwise prohibits.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

TABLE OF CONTENTS ........................................... iii

TABLE OF AUTHORITIES........................................ v

INTRODUCTION ........................................................1

STATEMENT OF THE CASE ....................................4

Alabama Enacts the Vulnerable Child

Compassion and Protection Act ....................4

Petitioners Secure a Preliminary

Injunction .......................................................9

The Eleventh Circuit Vacates the

Injunction and Denies En Banc Review ..... 12

Alabama Conducts Discovery and Moves

For Summary Judgment ............................. 15

REASONS FOR DENYING THE PETITIONS........ 20

The Equal Protection Clause Does Not

Prohibit States From Regulating The

Provision Of Risky Sex-Change

Procedures To Minors .................................. 20

A. Alabama’s Law Classifies By Age

and Procedure, Not Sex or

“Gender Identity.” .................................. 20

B. Petitioners’ “Same Treatments”

Fallacy Cannot Conjure a SexBased Classification ............................... 23

II.

The Due Process Clause Does Not Afford

Parents A Fundamental, Deeply Rooted

Right To Bypass State Law To Medically

Transition Their Children ............................ 32

III. This Case, In This Posture, Is A Poor

Vehicle For Review ....................................... 35

CONCLUSION .......................................................... 37

TABLE OF AUTHORITIES

Cases

Bostock v. Clayton County,

590 U.S. 644 (2020) ............................ 11, 13, 23, 24

Clark v. Jeter,

486 U.S. 456 (1988) .............................................. 21

Craig v. Boren,

429 U.S. 190 (1976) .............................................. 30

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ...................... 13, 22, 31, 32, 34

Doe v. Kentucky,

No. 23-492 (petition filed Nov. 3, 2023) .............. 36

Engquist v. Oregon Dep’t of Agr.,

553 U.S. 591 (2008) .............................................. 24

Gregory v. Ashcroft,

501 U.S. 452 (1991) .............................................. 21

In re Amie Vague,

No. 2-22-mc-3977 (M.D. Ala. Oct. 3, 2023) ...........9

Kadel v. Folwell,

100 F.4th 122 (4th Cir. 2024) ................................3

L.W. v. Skrmetti,

73 F.4th 408 (6th Cir. 2023) ................................ 13

L.W. v. Skrmetti,

83 F.4th 460 (6th Cir. 2023) ........ 21, 22, 30, 33, 34

L.W. v. Skrmetti,

No. 23-466 (petition filed Nov. 1, 2023) .............. 36

Lange v. Houston Cnty.,

101 F.4th 793 (11th Cir. 2024) ............................ 26

Loving v. Virginia,

388 U.S. 1 (1967) .................................................. 31

Parham v. J.R.,

442 U.S. 584 (1979) ....................................... 34, 35

PJ ex rel. Jensen v. Wagner,

603 F.3d 1182 (10th Cir. 2010) ............................ 36

Sessions v. Morales-Santana,

582 U.S. 47 (2017) ................................................ 30

Troxel v. Granville,

530 U.S. 57 (2000) ................................................ 13

United States v. Skrmetti,

No. 23-477 (petition filed Nov. 6, 2023) .... ii, 1-4, 7

................................................. 17, 20, 22-24, 29, 36, 37

Washington v. Davis,

426 U.S. 229 (1976) .............................................. 31

Washington v. Glucksberg,

521 U.S. 702 (1997) ........................................ 32, 33

Whalen v. Roe,

429 U.S. 589 (1977) .............................................. 33

Statutes

Ala. Code §26-26-1 et seq .............................................4

Ala. Code §26-26-2(11) ................................................8

Ala. Code §26-26-2(15) ................................................8

Ala. Code §26-26-2(16) ................................................8

Ala. Code §26-26-4(a) ..................................................5

vii

Ala. Code §26-26-6.......................................................5

Rules

S.Ct.R. 10(c) ......................................................... 35, 36

Constitutional Provisions

U.S. Const. Amend. XIV, §1

(Due Process Clause) ....................ii, 11, 20, 32, 33

U.S. Const. Amend. XIV, §1

(Equal Protection Clause) ...ii, 2, 11, 12, 20, 23, 24

Other Authorities

American Society of Plastic Surgeons, Aesthetic

Genital Plastic Surgery Surgical Options:

What Is A Vaginoplasty?,

https://perma.cc/5WFH-57QP............................. 25

Anna Miroshnychenko, Gordon Guyatt, et al.,

Gender-Affirming Hormone Therapy for

Individuals With Gender Dysphoria: A

Systematic Review and Meta-Analysis, ARCH.

OF DISEASE IN CHILDHOOD (Jan. 24, 2025),

https://perma.cc/ABW5-6H6T............................. 18

Anna Miroshnychenko, Gordon Guyatt, et al.,

Puberty Blockers for Youth Experiencing

Gender Dysphoria: A Systematic Review and

Meta-Analysis, ARCH. OF DISEASE IN

CHILDHOOD (Jan. 24, 2025),

https://perma.cc/AL6T-VGTW ............................ 18

Azeen Ghorayshi, Scotland Pauses Gender

Medications for Minors, N.Y. TIMES (Apr. 18,

2024), https://perma.cc/4YV6-FCX5 ................... 17

viii

Azeen Ghorayshi, U.S. Study on Puberty

Blockers Goes Unpublished Because of

Politics, N.Y. TIMES (Oct. 23, 2024),

https://perma.cc/8M5A-4M3W ............................ 18

Craig Alter et al. (eds.), Precocious Puberty,

ENDOCRINE SOCIETY (Jan. 24, 2022),

https://perma.cc/6Q3E-PEMP............................. 26

E. Coleman et al., WPATH Standards of Care for

the Health of Transgender & Gender Diverse

People, Version 8, 23 INT’L J. OF

TRANSGENDER HEALTH S18 (Sept. 15, 2022),

https://perma.cc/Y9G6-TP3M ..... 16, 18, 25, 29, 34

Ezra D. Oosthoek, Annelou de Vries, et al.,

Gender-affirming Medical Treatment for

Adolescents: A Critical Reflection on

“Effective” Treatment Outcomes, 25 BMC

MEDICAL ETHICS 154 (2024),

https://perma.cc/8W4R-CEG7 ............................. 19

Fan Liang, Johns Hopkins Medicine,

Vaginoplasty for Gender Affirmation,

https://perma.cc/RFU9-S72N.............................. 25

Jayne Leonard, What Causes High Testosterone

in Women?, MEDICAL NEWS TODAY (Jan. 12,

2023), https://perma.cc/BT38-L79X.................... 28

Kamran Abbasi, “Medication is Binary,” BMJ

(Apr. 2024), https://perma.cc/KUM3-XL2S ..........2

Karen O. Klein, Review of Hormone Replacement

Therapy in Girls and Adolescents with

Hypogonadism, 32 J. PEDIATRIC &

ADOLESCENT GYNECOLOGY 460 (2019),

https://perma.cc/2H7W-5G42 ............................. 29

Leor Sapir, A Consensus No Longer,

CITY JOURNAL (Aug. 12, 2024),

https://perma.cc/4KLM-B8MQ ........................... 25

Matt Lavietes, Britain Bans Puberty Blockers for

Transgender Minors, NBC NEWS (Dec. 11,

2024), https://perma.cc/3Q4S-NV8E .............. 1, 17

Maria Vogiatzi et al., Testosterone Use in

Adolescent Males: Current Practice and

Unmet Needs, 5 J. ENDOCRINE SOC’Y 1 (2021),

https://perma.cc/SZ3D-QE2A ............................. 27

WPATH 28th Scientific Symposium Schedule

(Sept. 2024), https://perma.cc/2SZF-QUMY ...... 19

INTRODUCTION

The primary difference between this case and

United States v. Skrmetti, No. 23-477 (argued Dec. 4,

2024), is that Alabama enacted its law a year before

Tennessee did. The upshot is that Alabama was able

to conduct robust discovery to test the carefully curated evidentiary record Petitioners relied on to secure a preliminary injunction.2 What it found is nothing less than a national medical, legal, and political

scandal. If it wasn’t clear before, it is now: Pediatric

sex-change procedures are not safe, and the interest

groups advocating their use have prioritized ideology

over the welfare of vulnerable children. See Brief of

Alabama as Amicus Curiae, No. 23-477, United States

v. Skrmetti (U.S. Oct. 15, 2024) (discussing evidence

Alabama uncovered in discovery).

Other countries have come to similar conclusions,

as have half the States. Shortly after the Court heard

oral argument in Skrmetti, the United Kingdom “indefinitely banned new prescriptions of puberty blockers to treat minors for gender dysphoria.”3 Dr. Hilary

Cass, the pediatrician who conducted the yearslong

independent review for England’s National Health

Service, concluded: “I can’t think of another area of

paediatric care where we give young people a

2 Respondents use “Plaintiffs” to refer to the private plaintiffs in

Eknes-Tucker and “Petitioners” to refer to Plaintiffs and the

United States collectively.

3 Matt Lavietes, Britain Bans Puberty Blockers for Transgender

Minors, NBC NEWS (Dec. 11, 2024), https://perma.cc/3Q4SNV8E.

potentially irreversible treatment and have no idea

what happens to them in adulthood.”4

That much of this evidence came to light after the

preliminary injunctions were entered in Alabama and

Tennessee makes it unsurprising that the United

States sought certiorari in a case without such evidence—and that it then tried to halt discovery in Alabama’s case. See Brief of Alabama as Amicus Curiae

at 1-7, No. 23-477, United States v. Skrmetti (U.S. Feb.

2, 2024). And it is perhaps understandable that Petitioners now ask the Court to review Alabama’s preliminary injunction from nearly three years ago on a

stale, incomplete record rather than wait for final adjudication—even though the State’s summary judgment motion is pending before the district court and

will be resolved once this Court decides Skrmetti.

Those are all good reasons to deny certiorari. More

fundamentally, the issues presented are simply not

worth the Court’s review at this time. The Eleventh

Circuit’s unanimous decision applied blackletter law

to correctly hold that States have the authority to regulate risky medical procedures in the face of shifting

scientific understanding and debate. The events that

have taken place in the years since the district court

entered its injunction simply underscore the wisdom

of that ruling.

Petitioners attempt to conjure heightened scrutiny

from the Equal Protection Clause, but their incantations turn entirely on the “same treatments” fallacy:

the idea that using testosterone to treat a boy’s

Kamran Abbasi, “Medication is Binary,” BMJ (Apr. 2024),

https://perma.cc/KUM3-XL2S.

endocrine disorder is the “same treatment” as using

the drug to disrupt the healthy physical development

of an adolescent girl suffering from psychological distress. “These are not the same!” Kadel v. Folwell, 100

F.4th 122, 188 (4th Cir. 2024) (Richardson, J., dissenting). Though the drug is the same, the differing diagnoses, treatment purposes, and risk-benefit profiles

make the treatments altogether different—just as

providing the steroid to a Tour de France cyclist would

also be a different treatment.

By analogy, consider a drug that could be used only

for transitioning. As the United States has conceded,

banning such a drug would not raise an equal protection issue.5 But if the drug had another use—say, to

treat migraines—Petitioners would cry “same treatments!” and argue that the Constitution mandates

heightened review of a law distinguishing between

the uses. Yet in neither scenario—whether the drug

has one use or two—would any regulation discriminate based on sex. The regulation would be a health

and welfare provision subject only to rational-basis review.

Plaintiffs—not joined by the United States—also

argue that heightened scrutiny attaches by way of a

purported substantive-due-process right of parents to

obtain sex-change procedures for their children. There

is no such right that is deeply rooted in our Nation’s

history and tradition, and the general recognition that

parents can direct the medical care of their children

does not afford them the ability to subject every

Transcript of Oral Argument at 57-58, United States v.

Skrmetti, No. 23-477 (U.S. Dec. 4, 2024).

restricted treatment to strict scrutiny (and make

judges de facto medical regulators in the process).

Were it otherwise, parents could unlock access to vaccines before FDA approval and to medical marijuana

or euthanasia drugs that a State prohibits.

At bottom, this case is about who decides how

States should regulate a quickly evolving area of medicine. The Constitution is clear: “Absent a constitutional mandate to the contrary, these types of issues

are quintessentially the sort that our system of government reserves to legislative, not judicial, action.”

App.73a. The Court should deny certiorari after ruling

for Tennessee in Skrmetti.6

STATEMENT OF THE CASE

A. Alabama Enacts the Vulnerable Child

Compassion and Protection Act.

On April 8, 2022, Governor Kay Ivey signed into

law the Alabama Vulnerable Child Compassion and

Protection Act, Ala. Code §§26-26-1 et seq. The Act

prohibits the prescription or administration of sexchange procedures—puberty blockers, cross-sex hormones, and surgeries—to minors “if the practice is

performed 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

6 In the event the Court in Skrmetti rules that heightened scru-

tiny applies to Tennessee’s law, the Court should remand this

case to the Eleventh Circuit to apply that standard. Under that

scenario, Alabama’s law would remain in force because the Eleventh Circuit stayed the district court’s injunction in a separate

order, D.Ct.Doc.400—properly so given Judge Brasher’s conclusion that the law likely survives heightened review, App.83a.

is inconsistent with the minor’s sex.” Id. §26-26-4(a).

The Act does not limit “mental health professionals

from rendering the services for which they are qualified.” Id. §26-26-6.

Alabama’s law was part of a global reckoning on

the safety and efficacy of using sex-change procedures

to treat gender dysphoria in minors. The practices

themselves are of recent vintage. The first cohort

study looking at the short-term effects of providing

puberty blockers to 12-year-old gender dysphoric patients was published by a team of Dutch clinicians in

2011. Three years later the same team published the

first findings from a subset of 55 patients who went on

to receive cross-sex hormones (after turning 16) and

transitioning surgeries (after turning 18); surgeries

included mandatory removal of the ovaries, uterus,

and testes, sterilizing the participants. D.Ct.Doc.6923.

The clinicians were careful to include only patients

who had longstanding cross-sex identification from

early childhood and to exclude patients with significant psychological comorbidities like severe depression or suicidality. D.Ct.Doc.69-6 ¶75. The participants thus had overall psychological well-being scores

comparable to their peers both at the study’s outset

and its conclusion. Id. ¶71. “Of the 30 psychological

measurements reported, nearly half showed no statistically significant improvements, while the changes in

the other half were marginally clinically significant at

best.” D.Ct.Doc.69-8 at 10.

Because the study did not include a control

group—no patient received sex-change procedures

without psychological counseling or vice versa—the

clinicians could not say what caused the modest improvements they reported. D.Ct.Doc.69-2 ¶¶51-55.

Other limitations—including the possibility that

switching scales in the middle of the experiment may

have caused the reported reduction in gender dysphoria—abounded. D.Ct.Doc.69-6 ¶74.

Around the same time, the patient population of

minors experiencing gender-related distress both

transformed and exploded. The average minor patient

shifted from a young, pre-pubescent boy with a long

history of gender distress and a stable cross-sex gender identification to a teenaged girl whose incongruent gender identification seemed to appear out of nowhere. These teens were often autistic, often identified as “non-binary,” and often had their discordance

arise in association with intensive social media use.

Pediatric gender clinics saw their patient populations

increase by thousands of percent, and many providers

prescribed transitioning treatments without the purportedly careful psychological care or exclusions reported by the Dutch team. See D.Ct.Doc.69-2 ¶¶58-59,

67-78; D.Ct.Doc.69-6 ¶¶79-88; D.Ct.Doc.69-7 at 16-29;

D.Ct.Doc.69-5 ¶72.

The research did not keep up. Even as clinicians

increasingly relied on hormones and surgeries to treat

children with gender dysphoria, no study could identify a reliable way to determine which children would

have their dysphoria desist naturally if not given medical interventions. D.Ct.Doc.69-3 ¶¶41-43. Yet most

gender dysphoric kids do experience natural resolution if not medically transitioned; per the DSM-5, between 97.8% and 70% of gender dysphoric boys and

between 88% and 50% of gender dysphoric girls have

their dysphoria resolve naturally by adulthood.

D.Ct.Doc.69-17 at 455; see D.Ct.Doc.69-2 ¶¶34-40. A

clinician is thus more likely to guess wrong and provide transitioning interventions to a child whose dysphoria would otherwise desist than guess right and

pick out the persister.

Nor was any study able to replicate the negligible

success of the Dutch team or otherwise show that

providing sex-change procedures to minors is a safe

and effective way of treating gender dysphoria.

D.Ct.Doc.69-2 ¶¶60-64; D.Ct.Doc.69-6 ¶70. And despite the popular narrative otherwise, no study

showed that medical transitioning reduces suicide.

D.Ct.Doc.69-2 ¶¶81-86.7

On the other side of the ledger, the risks of the interventions are severe, lifelong, and largely undisputed: permanent sterility, loss of sexual function,

loss of bone density, heart attack, cancer, the list goes

on. D.Ct.Doc.69-3 at 12-19; D.Ct.Doc.78-41. And the

risks are not remote. Because a girl has not yet menstruated and a boy has not yet produced sperm when

puberty blockers are generally administered, using

puberty blockers followed by cross-sex hormones—the

near-universal course—means that “the sex glands

will be locked in a premature state and incapable of

fertility.” D.Ct.Doc.69-3 at 9. It has not been demonstrated that minors subject to this hormonal damage

can ever recover healthy levels of fertility.

7 Counsel for the Skrmetti plaintiffs admitted this at oral argu-

ment: “[T]here is no evidence … in the studies that this treatment reduces completed suicide.” Skrmetti.Tr.88.

Sterility is a high price for any child to pay for a

medical treatment, but it is particularly shocking here

given the paucity of evidence suggesting that sexchange procedures are a safe and effective way to

treat gender-related distress. The world eventually

took notice. Sweden’s National Board of Health and

Welfare conducted a systematic evidence review and

concluded in 2022 that “the risk of puberty suppression treatment with GnRH-analogues and gender-affirming hormonal treatment currently outweigh the

possible benefits.” D.Ct.Doc.69-11 at 3. The UK’s National Health Service found that every study on the

subject was a “small, uncontrolled observational

stud[y],” “subject to bias and confounding” with “results … of very low certainty.” D.Ct.Doc.69-9 at 13;

D.Ct.Doc.69-10 at 13. Finland’s Council for Choices in

Healthcare concluded that “[t]he reliability of the existing studies” is “highly uncertain.” D.Ct.Doc.69-12

at 7.

The Alabama Legislature came to similar conclusions. After multiple hearings, it found that “[t]his unproven, poorly studied series of interventions results

in numerous harmful effects for minors” and that

“[m]inors, and often their parents, are unable to comprehend and fully appreciate the risk and life implications, including permanent sterility, that result from

the use of puberty blockers, cross-sex hormones, and

surgical procedures.” Ala. Code §26-26-2(11), (15). The

Legislature thus determined that “the decision to pursue a course of hormonal and surgical interventions to

address a discordance between the individual’s sex

and sense of identity should not be presented to or determined for minors.” Id. §26-26-2(15), (16).

B. Petitioners

Injunction.

Secure

Preliminary

1. Two sets of plaintiffs immediately challenged

the Act. App.7a-8a. One, led by attorneys from the

ACLU, filed in the Middle District of Alabama and

sought to relate their challenge to a closed case that

Judge Myron Thompson had presided over concerning

sex designations on Alabama driver’s licenses. See Final Report of Inquiry, In re Amie Vague, No. 2-22-mc3977 (M.D. Ala. Oct. 3, 2023), Doc.70 at 6. Despite the

attorneys’ efforts “to steer the case to Judge Thompson,” the challenge was randomly assigned to a different judge. Id.

The other challenge was filed in the Northern District by attorneys now representing Plaintiffs here. Id.

at 4-5. When that case was randomly assigned to

Judge Annemarie Axon, the ACLU attorneys consented to have their case transferred to the Northern

District. Id. at 7. To their surprise, their case was randomly assigned to Judge Liles Burke. Id. Shortly after, Judge Axon, who was presiding over a jury trial,

transferred her case to Judge Burke so he could handle the emergency claims for relief. Id. at 7-8.

Both sets of plaintiffs then dismissed their challenges within minutes of each other. Id. at 8. The lawyers here informed the press: “We do plan to refile imminently.” Id. at 9. Judge Burke noted: “At the risk of

stating the obvious, Plaintiffs’ course of conduct could

give the appearance of judge shopping.” Id.

Sure enough, the lawyers here found new plaintiffs, “refiled” in the Middle—not Northern—District,

and moved to preliminarily enjoin the Act’s

prohibition on prescribing puberty blockers and crosssex hormones. Id. at 9-10; App.13a. As relevant here,

they claimed that the Act imposes an unconstitutional

sex-based classification and violates the substantivedue-process rights of parents to direct the medical

care of their children. App.14a. The case was reassigned to Judge Burke, who sat by designation in the

Middle District. App.8a.

2. Judge Burke entered an abbreviated briefing

schedule on Plaintiffs’ preliminary injunction motion

and set an evidentiary hearing. App.8a. The United

States then moved and was granted leave to intervene

as a plaintiff; it initially also challenged the Act’s surgery ban but later conformed its complaint to match

Plaintiffs’. Id. & n.10; D.Ct.Doc.58-3 ¶40 (complaint

alleging that sex-change surgery is “essential and

medically necessary”).

At the hearing, Petitioners relied heavily on the

imprimatur of medical interest groups. E.g.,

D.Ct.Doc.78-14 through 78-32. They argued (as they

do here) that pediatric sex-change procedures are

“well-established, evidence-based treatments for gender dysphoria”; that the “prevailing clinical practice

guidelines governing the treatment of gender dysphoria … were developed by the World Professional Association for Transgender Health (WPATH) and the Endocrine Society”; and that “[t]he WPATH and Endocrine Society guidelines are recognized as the established standard of care by major medical associations”

in the United States. ET.Pet.7; accord D.Ct.Doc.8 at

16. They promised the court that the interventions are

“lifesaving”; that without them gender dysphoria can

“lead[] to … suicide”; and that the minor plaintiffs had

been treated pursuant to the then-existing WPATH

standards and were flourishing as a result. D.Ct.Doc.8

at 2-9, 12-13.

The State presented counter evidence—expert reports showing study by study how the purported domestic medical consensus was based on low-quality

evidence; systematic evidence reviews and policy restrictions by European healthcare authorities; and

declaration after declaration from detransitioners and

parents of gender dysphoric children who felt betrayed by their doctors’ rush to medically transition.

See D.Ct.Doc.69-1 through 69-39.

One detransitioner, Sydney Wright, testified at the

hearing. She had been diagnosed with gender dysphoria in her late teens, prescribed testosterone, and suffered immense physical harms as a result.

D.Ct.Doc.105 at 338-55. She later reidentified with

her sex and stopped taking the drugs but still suffers

health problems from the hormones: a permanently

deep voice, tachycardia, and possible infertility. When

asked what she needed when she first presented at a

gender clinic, she was clear: “I needed counseling,” not

steroids. Id. at 349.

3. The district court preliminarily enjoined enforcement of the Act. App.29a. The court ruled that

the Act was subject to and likely failed heightened

scrutiny under the Equal Protection and Due Process

Clauses of the Fourteenth Amendment. For the former, the court relied on this Court’s decision in Bostock v. Clayton County, 590 U.S. 644 (2020), to reason

that “the Act prohibits transgender minors—and only

transgender minors—from taking transitioning

medications” and “therefore constitutes a sex-based

classification.” App.21a. For the latter, the court

found that parents have a “fundamental right to treat

their children with transitioning medications subject

to medically accepted standards.” App.16a.

Turning to its application of heightened scrutiny,

the court recognized that “[k]nown risks” of transitioning treatments “include loss fertility and sexual

function.” App.3a. “Nevertheless,” it said, “WPATH

recognizes transitioning medications as established

medical treatments and publishes a set of guidelines

for treating gender dysphoria in minors” that are endorsed by “major medical associations.” Id. at 3a-4a.

Because the Alabama Legislature departed from that

purported consensus, the court found that the Act was

likely unconstitutional.

C. The Eleventh Circuit Vacates the

Injunction and Denies En Banc Review.

The Eleventh Circuit vacated the injunction.

App.74a. In a unanimous panel opinion authored by

Judge Lagoa and joined by Judge Brasher and Judge

Boulee sitting by designation, the court held that the

Act was subject only to rational-basis review—a

standard “that the law seems to undoubtedly clear.”

App.63a.

As to equal protection, the court explained that the

Act “is best understood as a law that targets specific

medical interventions for minors, not one that classifies on the basis of any suspect characteristic under

the Equal Protection Clause.” App.67a. The Act’s rule,

the court said, “applies equally to both sexes” and

“‘does not prefer one sex to the detriment of the

other.’” App.68a (quoting L.W. v. Skrmetti, 73 F.4th

408, 419 (6th Cir. 2023)). As for Petitioners’ Bostock

argument, the court first distinguished Bostock as

limited to the employment context of Title VII.

App.70a. The court then explained that, regardless,

“[t]he regulation of a medical procedure that only one

sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a ‘mere pretex[t]’” for “invidious discrimination.” App.71a (alterations in original) (quoting Dobbs v. Jackson Women’s

Health Org., 597 U.S. 215, 236 (2022)). “And the district court did not find that Alabama’s law was based

on invidious discrimination.” Id. The court also rejected the United States’ argument that transgender

status alone constitutes a quasi-suspect class. Id.

As to due process, the court recognized that parents have a fundamental right to “make decisions concerning the care, custody, and control” of their children. App.55a (quoting Troxel v. Granville, 530 U.S.

57, 66 (2000)). But the district court went awry, the

court wrote, when it failed to “focus on the specific

right asserted, rather than simply rely on a related

general right.” Id. The court of appeals explained that

the “specific right” at issue is the purported “right to

give one’s children puberty blockers and cross-sex hormone treatment,” id.—a right that “almost certainly

is not ‘deeply rooted’ in our nation’s history and tradition,” App.53a, nor included in “the general right to

‘make decisions concerning the care, custody, and control of [one’s] children,’” App.55a.

The court concluded that “[S]tates have a compelling interest in protecting children from drugs, particularly those for which there is uncertainty regarding

benefits, recent surges in use, and irreversible effects.” App.62a. Though “there is a strong disagreement between the parties over what is best for those

children,” the court reasoned, “[a]bsent a constitutional mandate to the contrary, these types of issues

are quintessentially the sort that our system of government reserves to legislative, not judicial, action.”

73a.

Judge Brasher wrote separately to make two

points. First, he explained that, in his view, the Act

simply “classified between, on the one hand, those minors who want these drugs to treat a ‘discordance between their sex and their internal sense of identity’

and, on the other hand, those minors who want these

drugs to treat a different condition.” App.77a-78a.

Whether these two groups are “similarly situated,” he

noted, is not a question well “suited to heightened

scrutiny review” because any purported remedy would

not “equalize burdens or benefits between girls and

boys.” App.78a-79a. Rather, an injunction along

equal-protection principles would “merely force Alabama to either ban puberty blockers and hormones for

all purposes or allow them for all purposes.” App.79a.

Second, Judge Brasher explained his view that the

Act likely survives heightened scrutiny. “On this record,” he wrote, “it seems clear that the state has an

interest in regulating these drugs differently when

they are prescribed to treat a discordance between sex

and gender than when they are prescribed to treat

other conditions. And the state cannot do that without

drawing the lines it has drawn in this statute.”

App.83a.

Plaintiffs petitioned for rehearing en banc, which

the court of appeals denied. App.86a.

D. Alabama Conducts Discovery and Moves

For Summary Judgment.

While the appellate process played out on the preliminary injunction, the parties prepared for final adjudication. Alabama sought discovery into the two major claims Petitioners made at the preliminary injunction hearing: (1) that the care the minor plaintiffs received was medically necessary for them—an essential element of their as-applied challenge; and (2) that

the WPATH standards were reliable in claiming the

treatments are medically necessary in general—the

basis of the district court’s ruling. Plaintiffs and their

allies threw up obstacles at each turn.

1. The parent plaintiffs claimed a purported right

“to obtain medical treatments that are recognized to

be safe, effective, and medically necessary to protect

their children’s health and well-being.” D.Ct.Doc.159

¶98. And to prove that the prohibited procedures were

medically necessary for them, Plaintiffs presented selective evidence at the preliminary injunction hearing

about the minors’ medical histories and the purportedly holistic evaluations, diagnoses, and care they received before being prescribed puberty blockers or

cross-sex hormones. See D.Ct.Doc.215 at 2-10 (compiling examples); accord ET.Pet.9 (promising that minors do not begin medical transitioning until a mental

health professional “confirm[s] the persistence of gender dysphoria” and “ensure[s] that any coexisting psychological, medical, or social problems” have been addressed).

Yet when Alabama sought medical records to test

these claims, Plaintiffs refused, asserting that it was

“irrelevant” whether “an individual minor has a correct diagnosis or particularized need.” D.Ct.Doc.232

at 7. They argued that it was of “no issue” “whether or

not a transgender minor has or has not been properly

diagnosed with gender dysphoria” or “whether or not

the medical assessments met the requirements of

WPATH” because the Act prohibits the interventions

regardless. D.Ct.Doc.246 at 33.

The district court saw through the argument and

granted the State’s motion to compel production of the

medical records. D.Ct.Doc.260. As the court explained,

Plaintiffs’ allegations “involve medical diagnoses, the

effectiveness of various medical treatments, and the

alleged consequences of being denied those treatments,” making their medical records “almost certainly necessary.” Id. at 5.

2. Alabama also sought discovery into the reliability of the WPATH Standards. As the district court put

it, “WPATH’s standards for treating gender dysphoria

in minors go to ‘the very heart’ of this case” because

they “are part and parcel of Plaintiffs’ proposed constitutional standard.” D.Ct.Doc.263 at 5, 7.

The State thus subpoenaed relevant documents

from WPATH, which the organization challenged before the district court. D.Ct.Doc.208. Following much

briefing and multiple hearings, the district court denied WPATH’s motion to quash and ordered the organization to produce documents, primarily concerning the creation of its “Standards of Care 8” (SOC-8).

D.Ct.Doc.263. The court explained that “[p]roscription

of the discovery Defendants seek would, in essence,

amount to acceptance of WPATH’s standards as ‘established, evidence-based clinical guidelines’ on

WPATH’s word alone.” Id. at 10 (quoting WPATH’s

amicus brief). WPATH unsuccessfully challenged the

ruling before the Eleventh Circuit, D.Ct.Doc.299, and

eventually produced the documents subject to a protective order.

3. Discovery from Plaintiffs, WPATH, and a few

other entities—primarily the U.S. Department of

Health and Human Services, the pediatric gender

clinic at the University of Alabama Birmingham, and

Johns Hopkins University—revealed a very different

evidentiary picture than the one Petitioners had

painted at the preliminary injunction hearing. Respondents discussed some of this evidence in its merits-stage amicus brief in Skrmetti.

The landscape has only continued to change. At

the preliminary injunction hearing, Petitioners emphasized—and the district court accepted—that “no

country in Europe (or elsewhere) has categorically

banned treating gender dysphoria in minors with

transitioning medications.” App.12a. True or not at

the time (the restrictions in place came close to a ban

in practice), the statement is emphatically not true

now. See, e.g., Lavietes, Britain Bans Puberty Blockers

for Transgender Minors, supra note 3; Azeen Ghorayshi, Scotland Pauses Gender Medications for Minors,

N.Y. TIMES (Apr. 18, 2024), https://perma.cc/4YV6FCX5 (“Scotland’s National Health Service has

stopped all new prescriptions of puberty-blocking

drugs and other hormone treatments for minors….”).

Nor have advances in research helped Petitioners’

cause. Just the opposite. Dr. Gordon Guyatt, the godfather of evidence-based medicine, recently published

his own systematic evidence reviews and meta-analyses of the safety and efficacy of using puberty blockers and cross-sex hormones to treat gender dysphoria

in minors.8 His conclusion matched every other review

on the topic: low-quality evidence yielding only “considerable uncertainty.”9

That conclusion is not likely to change soon. In October, the head of a large, NIH-funded study admitted

to finding that “[p]uberty blockers did not lead to mental health improvements”—and then told the New

York Times that she has not published the results because she does not want the findings “to be weaponized.”10

The lead researcher from the Dutch team—who

also served as co-chair of the adolescent chapter of the

WPATH Standards of Care—went even further. Tacitly admitting the truth of “the critique that there is

insufficient evidence,” she recently wrote to “question”

8 See Anna Miroshnychenko, Gordon Guyatt, et al., Puberty

Blockers for Youth Experiencing Gender Dysphoria: A Systematic

Review and Meta-Analysis, ARCH. OF DISEASE IN CHILDHOOD

(Jan. 24, 2025), https://perma.cc/AL6T-VGTW; Anna Miroshnychenko, Gordon Guyatt, et al., Gender-Affirming Hormone

Therapy for Individuals With Gender Dysphoria: A Systematic

Review and Meta-Analysis, ARCH. OF DISEASE IN CHILDHOOD

(Jan. 24, 2025), https://perma.cc/ABW5-6H6T.

9 Id. at 3.

10 Azeen Ghorayshi, U.S. Study on Puberty Blockers Goes Un-

published Because of Politics, N.Y. TIMES (Oct. 23, 2024),

https://perma.cc/8M5A-4M3W.

the “normative assumption” that the interventions

“must necessarily result in ‘effective’ outcomes in order to be considered legitimate and essential care.”11

She argued that “the justification of this care practice

should not be conditional” on the “logic of improvement,” but may instead be likened to “abortion”—another intervention that “alter[s] healthy physiological

states based on an individual’s fundamental self-conception and desired life path.”12 “In this view,” she reasoned, “healthcare is provided and justified on the basis of personal desire and autonomy,” “effectiveness”

is measured by how well the interventions “help individuals achieve their embodiment goals,” and any “experience of regret” is welcomed as “inherent to all

lives.”13 (For its part, WPATH has also seemingly

moved beyond the “logic of improvement” and—per

the title of a panel at its recent world conference—embraced “the dignity of risk and the right to regret.”14)

Respondents moved for summary judgment in

June 2024 and submitted extensive evidence in support. See D.Ct.Doc.619 (redacted summary judgment

motion); 557-560 (exhibits) & 700-2 through 700-18

(redacted exhibits); 700-1 (redacted reply). Trial was

set for August, but the district court stayed the case

pending Skrmetti. D.Ct.Docs.386 & 633.

11 Ezra D. Oosthoek, Annelou de Vries, et al., Gender-affirming

Medical Treatment for Adolescents: A Critical Reflection on “Effective” Treatment Outcomes, 25 BMC MEDICAL ETHICS 154

(2024), https://perma.cc/8W4R-CEG7.

12 Id.

13 Id.

14 See WPATH 28th Scientific Symposium Schedule (Sept. 2024),

https://perma.cc/2SZF-QUMY.

REASONS FOR DENYING THE PETITIONS

The Court should deny certiorari because the Eleventh Circuit got it right. The Constitution does not forbid States from regulating risky areas of medicine, including by prohibiting sex-change procedures for minors. Alabama’s law does not create a sex-based classification under the Equal Protection Clause; instead,

it regulates based on a patient’s age and diagnosis and

the risks and benefits of the treatments at issue—all

traditional criteria by which States have long regulated medicine. Plaintiffs’ parental-rights claim fails

for the simple reason that any substantive component

of the Due Process Clause does not afford parents the

right to override state law to obtain sex-change procedures for their children. And even if these questions

were debatable or otherwise worthy of this Court’s attention, this case, in this posture, is a poor vehicle to

resolve them.

The Equal Protection Clause Does Not

Prohibit States From Regulating The

Provision Of Risky Sex-Change Procedures

To Minors.

Though Petitioners do not discuss the merits of

their equal protection challenges, it is worth doing so

briefly to highlight the extraordinary nature of their

claims.

A. Alabama’s Law Classifies By Age and

Procedure, Not Sex or “Gender Identity.”

Alabama’s law regulates novel, complex medical

procedures that involve significant scientific uncertainty. The law draws distinctions on two bases: age

and procedure. Neither is among the suspect

classifications that courts have identified for Equal

Protection purposes. See Gregory v. Ashcroft, 501 U.S.

452, 470 (1991); Clark v. Jeter, 486 U.S. 456, 461

(1988).

Petitioners claim that the law also discriminates

based on sex and gender identity, but that is not true.

The law forbids subjecting any minor—boy or girl—to

a sex-change procedure and thus “applies equally to

both sexes.” App.68a. Unlike laws to which this Court

has subjected heightened scrutiny, the Act does not

“prefer one sex over the other,” “bestow benefits or

burdens based on sex,” or “apply one rule for males

and another for females.” L.W. v. Skrmetti, 83 F.4th

460, 480 (6th Cir. 2023) (collecting cases).

This is true for each hormonal intervention at issue. “[P]uberty blockers involve the same drug used

equally by gender-transitioning boys and girls.” Id. at

483. Under the Act, no minor, regardless of sex or gender identity, can be prescribed puberty blockers to

transition, while any minor, regardless of sex or gender identity, can be prescribed puberty blockers as

necessary to treat a different diagnosed condition.

The same logic applies to cross-sex hormones.

Though these hormones differ depending on whether

the minor is a boy or a girl, that simply reflects that

each operation—males taking estrogen or females

taking testosterone to transition—is one that “only

one sex can undergo.” Dobbs, 597 U.S. at 236; see

App.67a-68a. But again, no minor, regardless of sex or

gender identity, can access cross-sex hormones to

transition, while any minor could be prescribed

hormones as necessary to treat a different diagnosed

condition.

In neither case does the law impose a sex-based

classification. That is because, as the United States

conceded, the regulation of transitioning procedures

by itself does not impose such a classification. Presented with a hypothetical of a new “drug that just has

[a] transitioning purpose,” with no other “reason to

give” it, and asked about a state law restricting access

to that drug, the Solicitor General agreed “that would

not be a facial sex classification.” Skrmetti.Tr.57-59.

The Solicitor General’s admission dooms Petitioners’ argument. To be sure, the drugs at issue do have

other uses, which Alabama distinguishes between.

But that Alabama’s law spells out the relevant crosssex hormones by sex—because, as the Solicitor General put it, “there are biological differences between

males and females” (id. at 8)—does not create a facial

sex classification that did not exist in the above hypothetical. Otherwise, an abortion law that happened to

use “woman” to refer to the mother would be considered sex-based while an identical law that used “person” would not be. That is absurd. See Skrmetti, 83

F.4th at 482 (collecting similar examples).

“[T]reatments for gender dysphoria are different

for males and for females because of biological differences between” them. App.68a. If regulation of a drug

used only for transitioning does not discriminate

based on sex, as the United States admits, neither

does Alabama’s regulation of multi-use drugs when

they are used for transitioning. The Court should not

apply inapt sex discrimination principles to

constitutionalize regulation of evolving and highly

risky medical treatments.

B. Petitioners’ “Same Treatments” Fallacy

Cannot Conjure a Sex-Based Classification.

Trying to manufacture sex discrimination out of

the law’s nondiscriminatory rule, Petitioners insist

that the fact that the drugs here have unrelated uses

makes all the difference. They claim that Alabama

“singles out transgender minors in order to deny them

medical care, including denying them the very same

medications available to non-transgender minors.”

D.Ct.Doc.8 at 22 (emphasis added); see D.Ct.Doc.62-1

at 1 (U.S. claiming sex-based classification based on

the Act’s prohibition of “treatments for transgender

minors, while leaving other minors free to receive the

same procedures and treatments” (emphasis added)).

The argument depends on a version of Bostock-like

but-for reasoning inaptly force-fit into the Equal Protection Clause: “change one thing at a time and see if

the outcome changes.” Bostock, 590 U.S. at 656.15 Petitioners attempt to meet the test by purportedly

changing only a patient’s sex and then concluding that

the outcome—the availability of sex-change procedures—also changes. As the United States made the

point at the Skrmetti argument: “If you change the individual’s sex, it changes the result” because “[s]omeone assigned female at birth can’t receive medication

15 But see App.69a (noting that “[t]he Equal Protection Clause

contains none of the text that the Court interpreted in Bostock”).

to live as a male, but someone assigned male can.”

Skrmetti.Tr.5.

The problem is that Petitioners change more than

“one thing at a time.” They also implicitly change the

relevant diagnosis, the purpose of the medical intervention, the risks and benefits of the intervention, and

more besides. Those changes mean the “treatments”

at issue are not the “same”—and that minors being

treated for precocious puberty, endocrine disorders, or

congenital defects are not similarly situated to minors

seeking sex-change procedures. As this Court said in

Bostock, “[t]o ‘discriminate against’ a person” would

require “treating that individual worse than others

who are similarly situated.” 590 U.S. at 657. Only

“[w]hen those who appear similarly situated are nevertheless treated differently” does “the Equal Protection Clause require[] [some] reason for the difference.”

Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 602

(2008). Minors who may be subjected to sex-change

procedures are not similarly situated to minors who

may access surgeries or drugs for other purposes.

Start with the Act’s restriction on transitioning

surgeries, which WPATH equally declares to be “medically necessary” for adolescents16 (and which are all

16 See E. Coleman et al., WPATH Standards of Care for the

Health of Transgender & Gender Diverse People, Version 8, 23

INT’L J. OF TRANSGENDER HEALTH S18 (listing purportedly “medically necessary” surgical interventions), S257 (providing summary criteria for recommending “breast augmentation, orchiectomy, vaginoplasty, hysterectomy, phalloplasty, metoidioplasty,

and facial surgery” for adolescents) (Sept. 15, 2022),

https://perma.cc/Y9G6-TP3M.

too common in other states17). The “same treatment”

fallacy here is easy to spot.18 A vaginoplasty, for instance, generally refers to “a procedure designed to

tighten the vagina” by surgically “bring[ing] the separated muscles together,” typically following trauma

like childbirth.19 But the term has been recently repurposed to refer to a surgery for transitioning males

that “involves rearranging tissue in the genital area

to create a vaginal canal (or opening) and vulva (external genitalia), including the labia.”20 The surgery

begins by “removing the penis, testicles, and scrotum,”21 and “the penile and scrotal skin” is then “used

to line the neovagina, the space between the rectum

and the prostate and bladder,” Lange v. Houston

Cnty., 101 F.4th 793, 802 (11th Cir.) (Brasher, J., dissenting), reh’g en banc granted, opinion vacated, 110

F.4th 1254 (11th Cir. 2024). Given that a penile-inversion “vaginoplasty” is not even possible for a female,

it should be obvious that these two “vaginoplasty”

17 See Leor Sapir, A Consensus No Longer, CITY JOURNAL (Aug.

12, 2024), https://perma.cc/4KLM-B8MQ (analyzing national insurance database from 2017 and 2023 and finding “evidence of

5,288 to 6,294 ‘gender-affirming’ double mastectomies for girls

under age 18”).

18 Though Petitioners have disclaimed any challenge of Alabama’s proscription of sex-change surgeries for minors, presumably for strategic reasons, the logic of such a challenge would be

the same.

19 See American Society of Plastic Surgeons, Aesthetic Genital

Plastic Surgery Surgical Options: What Is A Vaginoplasty?,

https://perma.cc/5WFH-57QP.

20 See Fan Liang, Johns Hopkins Medicine, Vaginoplasty for

Gender Affirmation, https://perma.cc/RFU9-S72N.

21 Id.

surgeries have almost nothing in common and are not

the “same treatments”—though, remarkably, plaintiffs in other cases have convinced courts otherwise.

See id.

The same fallacy is at the root of Petitioners’ arguments here. Puberty blockers are typically prescribed

to children to treat precocious puberty, a condition

where a child begins puberty at an unusually early

age—typically before age eight in girls and age nine

in boys.22 When puberty blockers are used for that

purpose, the aim is to ensure that children go through

pubertal development at a healthy age.

But when providers use puberty blockers as a purported treatment for gender dysphoria, the purpose is

to block normally timed puberty—the exact opposite

goal. And blockers are used for this different purpose

at a different time—after normal puberty begins,

around ages 9 to 13.

Unsurprisingly, these differences change the riskbenefit analysis. Using puberty blockers beyond the

normal pubertal age can, at minimum, risk a child’s

bone growth, social and cognitive development, and—

particularly on the near-universal pathway of blockers followed by cross-sex hormones—fertility and sexual function. D.Ct.Doc.69-3 at 14-16, 17-19. The benefits differ, too. When used for precocious puberty, the

benefit is clear: the child goes through normally timed

puberty. When used to treat gender dysphoria, systematic reviews of the evidence reveal that the

22 See D.Ct.Doc.69-3 at 13; Craig Alter et al. (eds.), Precocious

Puberty, ENDOCRINE SOCIETY (Jan. 24, 2022), https://perma.cc/

6Q3E-PEMP.

claimed benefits are utterly unproven. D.Ct.Doc.69-9.

These are not the “same treatments,” any more than

using puberty blockers to prolong a boy’s singing career would be.

The story is similar for testosterone. “Testosterone

therapy is routinely prescribed in adolescent males

with constitutional delay of growth and puberty or hypogonadism.”23 In the case of delayed puberty, testosterone is “applied for a limited time, typically 3 to 6

months,” to “initiate sexual changes” and “increase

growth.”24 “Testosterone replacement in adolescents

with primary or secondary hypogonadism is a longterm therapy” to bring and maintain a boy’s testosterone levels at a normal range for his age.25 The aims

of both treatments are generally the same: restore

healthy biological functioning, promote normal pubertal development, and alleviate infertility and sexual

disfunction caused by insufficient testosterone.26

Using testosterone to transition an adolescent girl

is altogether different. Here, the aim is to “induce the

development of the physical sex characteristics” of

males. D.Ct.Doc.69-10 at 3. Doctors do that by pushing testosterone levels far outside the healthy biological range for females, intentionally creating the diseased state of hyperandrogenism and thereby causing

the patient’s risk of heart attack to triple, the risk of

23 Maria Vogiatzi et al., Testosterone Use in Adolescent Males:

Current Practice and Unmet Needs, 5 J. ENDOCRINE SOC’Y 1, 2

(2021), https://perma.cc/SZ3D-QE2A (parentheticals omitted).

24 Id. at 2.

25 Id.; see D.Ct.Doc.69-3 at 16.

26 Id.

stroke to double, and the likelihood of breast cancer to

increase significantly. D.Ct.Doc.69-3 at 17-18;

D.Ct.Doc.69-5 at 64, 68. High levels of testosterone in

natal females can also cause infertility,27 particularly

when the transitioning patient begins testosterone

immediately following puberty blockers. D.Ct.Doc.695 at 64-66; D.Ct.Doc.69-8 at 8. And the benefits when

used to treat gender dysphoria are unproven. According to Britain’s National Institute for Health and Care

Excellence, all the studies shedding light on the safety

and efficacy of testosterone transitioning treatment

are “uncontrolled observational studies,” “subject to

bias and confounding,” with results of “very low certainty.” D.Ct.Doc.69-10 at 13. As with the other treatments at issue, administering testosterone to bring a

boy’s levels into a normal range is not the same treatment as ramping up a young girl’s testosterone levels

to that of a healthy boy, which is ten times that of a

healthy girl. See D.Ct.Doc.69-3 at 16-17.28

The same rationale applies to estrogen, which is

generally prescribed to females to treat endocrine disorders. “Girls with either hypo- or hypergonadotropic

hypogonadism need treatment with estrogens to initiate puberty and maintain a normal hormonal

27 Jayne Leonard, What Causes High Testosterone in Women?,

MEDICAL NEWS TODAY (Jan. 12, 2023), https://perma.cc/BT38L79X.

28 While there may be some instances in which administering

testosterone to a female could be necessary—say, to treat symptoms of menopause or a gland disorder—doing so would not be

the “same medical treatment” as that given to a male.

milieu.”29 The aim—and effect—is to restore healthy

bodily functioning and alleviate infertility. That is

neither the aim nor the effect when estrogen is provided as a transitioning treatment. Instead, transitioning estrogen treatment causes infertility, inhibits

normal pubertal development, and significantly raises

the risk of breast cancer, stroke, and blood clots.

D.Ct.Doc.69-3 at 18-19. In fact, when transitioning estrogen treatment is prescribed to a natal boy who

started puberty blockers at the first signs of puberty—

as both WPATH and the Endocrine Society recommend30—the effect is nearly always infertility because

the boy’s sperm will never mature. D.Ct.Doc.69-3 at

14-15.

These differences in diagnosis, purpose, and risk

mean that sex-change procedures are not the “same”

as other interventions that happen to use similar

chemicals or surgical tools—and individuals subjected

to these disparate interventions are not similarly situated. Return to the hypothetical about regulation of

a drug used only for transitioning, which the United

States concedes would raise no equal protection problem. Skrmetti.Tr.57-59. It would make no sense to say

that an equal protection problem springs into life if

another use of the drug is developed—say, at a low

dose to treat migraines. Likewise, as Alabama has

pointed out for years, “implanting a fertilized egg in a

woman is a treatment for infertility; implanting it in

29 Karen O. Klein, Review of Hormone Replacement Therapy in

Girls and Adolescents with Hypogonadism, 32 J. PEDIATRIC & ADOLESCENT GYNECOLOGY 460 (2019), https://perma.cc/2H7W5G42.

30 D.Ct.Doc.69-19 at 3870; WPATH SOC-8, supra note 16, at S64.

a man is something quite different.” D.Ct.Doc.74 at 5;

see id. (“[I]t is not unlawful discrimination to offer testicular exams only to boys or pap smears only to

girls.”). Petitioners have never had a response. Their

conflation of different treatments cannot create a viable equal protection challenge.

“Confirming the point is the remedy the plaintiffs

seek. They do not ask the States to equalize treatment

options by making a procedure given to one sex available to the other.” Skrmetti, 83 F.4th at 483. In other

words, they do not want “the government to treat boys

and girls the same.” App.79a (Brasher, J., concurring).

Rather, they want to “force Alabama to either ban puberty blockers and hormones for all purposes or allow

them for all purposes.” Id. That demand again shows

that “[t]he availability of testosterone, estrogen, and

puberty blockers does not turn on invidious sex discrimination but on the age of the individual and the

risk-reward assessment of treating this medical condition (as opposed to another) with these procedures.”

Skrmetti, 83 F.4th at 483. And it distinguishes this

case from the Court’s traditional sex discrimination

cases, like Craig v. Boren, 429 U.S. 190 (1976). There,

males sought to invalidate a “gender-based differential” in Oklahoma’s alcohol sales statutes, so that they

would be treated the same as female purchasers. Id.

at 210; see also Sessions v. Morales-Santana, 582 U.S.

47, 51 (2017) (involving “a gender-based differential in

the law governing acquisition of U.S. citizenship by a

child born abroad”). But here, Petitioners’ claim

hinges on other medical treatments used for different

purposes—not sex discrimination.

For similar reasons, the Court’s decision in Loving

v. Virginia, 388 U.S. 1 (1967), does not help Petitioners. There, the Court rejected an argument that miscegenation statutes that facially discriminated on

race did not actually discriminate because they “punish[ed] equally both … participants in an interracial

marriage.” Id. at 8. The Court explained that “[t]he

statutes proscribe generally accepted conduct if engaged in by members of different races.” Id. at 11.

Here, by contrast, no matter the minor’s sex or gender

identity, they cannot access sex-change procedures.

Testosterone for a boy’s endocrine disorder is not the

same thing as testosterone to induce external changes

in a girl, just as fentanyl for pain control is not the

same thing as fentanyl for assisted suicide.

In sum, Petitioners cannot show discrimination between similarly situated persons based on sex or gender identity. Rather, their equal protection claim effectively demands a disparate impact regime for

trans-identifying persons. But the Fourteenth

Amendment does not cover disparate impact, Washington v. Davis, 426 U.S. 229, 238-39 (1976), or “[t]he

regulation of a medical procedure that only one sex

can undergo,” Dobbs, 597 U.S. at 236. And in all

events, there is no discrimination here: no minor, regardless of sex or gender identity, can be subjected to

novel, unproven, and dangerous sex-change procedures in Alabama. That commonsense regulation,

adopted by over half the States and supported by a

developing worldwide consideration of the available

evidence, is within the States’ constitutional power to

protect citizens’ health and welfare.

II. The Due Process Clause Does Not Afford

Parents A Fundamental, Deeply Rooted

Right To Bypass State Law To Medically

Transition Their Children.

Plaintiffs, not joined by the United States, devote

a few pages in their petition to their claim that parents have a fundamental, substantive-due-process

right to subject all governmental regulations of pediatric medicine to strict scrutiny. See ET.Pet.19-22. Review is not warranted on this issue.

To succeed on their substantive-due-process claim,

Plaintiffs must first offer a “‘careful description’ of the

asserted fundamental liberty interest,” Washington v.

Glucksberg, 521 U.S. 702, 721 (1997), “focus[ing] on

the specific right asserted, rather than simply

rely[ing] on a related general right,” App.55a. Then

they must show that their asserted right is “deeply

rooted in our history and tradition” and “essential to

our Nation’s scheme of ordered liberty.” Dobbs, 597

U.S. at 237 (cleaned up).

Plaintiffs falter at each step. First, in defining the

right at issue, Plaintiffs do not argue—and did not argue below—that a child, a parent, or anyone else has

a personal substantive-due-process right to sexchange procedures. Indeed, they told the court of appeals that their claim does not depend on “whether the

child has an underlying right” to sex-change procedures. Plfs’CA11Br.32.

Instead, Plaintiffs argue that parents have a right

as parents to unlock access to medical treatments that

neither they nor their children have a right to access.

But as the Eleventh Circuit noted, “it would make

little sense for adults to have a parental right to obtain

these medications for their children but not a personal

right to obtain the same medications for themselves.”

App.61a n.18; see Skrmetti, 83 F.4th at 475 (“A parent’s right to make decisions for a child does not sweep

more broadly than an adult’s right to make decisions

for herself.”). Likewise, because a parent’s “claim is

derivative from, and therefore no stronger than,” the

child’s right at issue, Whalen v. Roe, 429 U.S. 589, 604

(1977), Plaintiffs’ abandonment of any such claim on

behalf of the minor plaintiffs dooms their parentalrights claim as well.

Beyond that, far from providing a “careful description” of the right at issue, Plaintiffs “overstate the parental right by climbing up the ladder of generality to

a perch—in which parents control all drug and other

medical treatments for their children—that the case

law and our traditions simply do not support.”

Skrmetti, 83 F.4th at 475. Like the claimants in

Glucksberg, Plaintiffs make scant reference to the

treatments actually at issue—here, puberty blockers

and cross-sex hormones; there, the purported “right to

commit suicide with another’s assistance,” 521 U.S. at

724—and repeat instead that they assert a general

right to “direct[] their children’s medical care,”

ET.Pet.19; contra Glucksberg, 521 U.S. at 723-24 (rejecting framing of general “liberty” right to “basic and

intimate exercises of personal autonomy”).

Second, no matter how one defines the right at issue, Plaintiffs cannot find hidden within the Due Process Clause a fundamental right of parents to subject

any medical regulation to strict scrutiny. Limiting the

scope of their purported right to choose from

“medically accepted standards” does not even help,

Pet.13, but simply raises another problem: accepted

by whom? Not the legislature or other governmental

regulators, Plaintiffs say, but medical interest groups

like WPATH—whose standards recommend “castration” as “medically necessary gender-affirming care”

for boys and men who self-identify as “eunuchs.”31

That won’t do. Our nation’s “history and tradition”

is that governments regulate medical providers, not

the other way around. E.g., Dobbs, 597 U.S. at 302

(“The Constitution does not prohibit the citizens of

each State from regulating or prohibiting abortion.”).

“This country does not have a custom of permitting

parents to obtain banned medical treatments for their

children and to override contrary legislative policy

judgments in the process.” Skrmetti, 83 F.4th at 475.

Indeed, “[i]f parents could veto legislative and regulatory policies about drugs and surgeries permitted for

children, every such regulation—there must be thousands—would come with a springing easement: It

would be good law until one parent in the country opposed it,” at which point “either the parent would take

charge of the regulation or the courts would.” Id.

Plaintiffs rely almost exclusively on this Court’s

decision in Parham v. J.R., 442 U.S. 584 (1979), to attack the Eleventh Circuit’s decision, ET.Pet.19-22,

but “[n]othing in Parham supports an affirmative

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

adult, that a state reasonably bans,” Skrmetti, 83

F.4th at 477. Rather, as the Eleventh Circuit explained, “Parham was concerned about the procedures

31 WPATH SOC-8, supra note 16, at S88-89.

a state must afford a child prior to institutionalization

when the parent believes such treatment—which is

not only lawful but provided by the state itself—is necessary.” App.58a. The procedural right at issue was

thus founded on a child’s “protectible interest” in “being free of unnecessary bodily restraints,” 442 U.S. at

601—unlike here where Plaintiffs have disclaimed

any right for minors to access the treatments at issue.

And in Parham the Court emphasized that the treatment at issue was “provided by the state” itself, 442

U.S. at 609—again, unlike here where the treatment

is prohibited by state law. “Parham therefore offers no

support for the Parent Plaintiffs’ substantive due process claim.” App.58a.

III. This Case, In This Posture, Is A Poor Vehicle

For Review.

Left with little argument that the decision below

“conflicts with relevant decisions of this Court,”

S.Ct.R. 10(c), Petitioners have little else to say about

why the Court should grant certiorari. And there are

at least three additional reasons why the Court should

deny review of this case in this posture.

First, Alabama’s law would survive any level of review, making the debate about the tiers of scrutiny academic in this case. As the Eleventh Circuit recognized, “states have a compelling interest in protecting

children from drugs, particularly those for which

there is uncertainty regarding benefits, recent surges

in use, and irreversible effects” like “loss of fertility

and sexual function.” App.62a; see id. at 62a n.19 (noting “need to be skeptical and exercise caution when

there is a sudden uptick in prescriptions of powerful,

off-label medications, even when some medical and

pharmaceutical organizations defend their safety”);

see App.80a (Brasher, J., concurring) (“[E]ven if Alabama’s statute triggered intermediate scrutiny, it

would likely survive that heightened scrutiny.”).

Second, when this Court granted certiorari in

Skrmetti on the equal protection issue, it chose not to

grant review of related petitions raising the same substantive-due-process parental-rights claim that Plaintiffs bring here. See Doe v. Kentucky, No. 23-492 (petition filed Nov. 3, 2023); L.W. v. Skrmetti, No. 23-466

(petition filed Nov. 1, 2023). That is unsurprising. The

only case Plaintiffs rely on to establish a circuit split

is a qualified-immunity decision from the Tenth Circuit that ruled against parents claiming a clearly established constitutional right to refuse chemotherapy

for their son’s life-threatening cancer. ET.Pet.22 (citing PJ ex rel. Jensen v. Wagner, 603 F.3d 1182 (10th

Cir. 2010)). Whatever the merits of that decision when

it comes to a parent’s right to refuse recommended

treatments, Wagner says nothing at all—and certainly does not endorse Plaintiffs’ view—about a purported parental right to access prohibited treatments.

Plaintiffs are thus left to rely on district court decisions that have either been reversed (like the decision

below and the Skrmetti and Doe decisions in the Sixth

Circuit), or that are currently pending before a court

of appeals. ET.Pet.23 & n.3. There is no circuit split

calling for this Court’s review. See S.Ct.R.10(a).

Third, Plaintiffs barely address the elephant in the

room, which is that they are seeking review of a preliminary injunction that is nearly three years old—

when discovery has shattered the carefully

constructed evidentiary narrative they presented at

the preliminary injunction hearing, the State’s summary judgment motion is pending, and trial would

have already occurred had it not been stayed pending

a decision in Skrmetti. Perhaps Plaintiffs have their

strategic reasons for doing that, as discussed above.

But this Court would not be well served by granting

certiorari in such a preliminary posture when a robust

evidentiary record awaits just around the corner.

CONCLUSION

The Court should deny certiorari after ruling for

Tennessee in Skrmetti.

Respectfully submitted,

Christopher Mills

SPERO LAW LLC

557 E. Bay St., #22251

Charleston, SC 29451

(843) 606-0640

cmills@spero.law

John J. Bursch

ALLIANCE DEFENDING

FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

Steve Marshall

Attorney General

Edmund G. LaCour Jr.

Solicitor General

Counsel of Record

A. Barrett Bowdre

Principal Deputy

Solicitor General

STATE OF ALABAMA

OFFICE OF THE ATTORNEY

GENERAL

501 Washington Avenue

P.O. Box 300152

Montgomery, AL 36130-0152

(334) 242-7300

Edmund.LaCour@

AlabamaAG.gov

(continued on next page)

James A. Campbell

Roger G. Brooks Sr.

ALLIANCE DEFENDING

FREEDOM

44180 Riverside Pkwy

Lansdowne, VA 20176

(571) 707-4655

Jonathan A. Scruggs

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

(480) 444-0020

David H. Thompson

Peter A. Patterson

Brian W. Barnes

John D. Ramer

COOPER & KIRK, PLLC

1523 New Hampshire Ave., NW

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Respondents

JANUARY 27, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.