Eleventh Circuit Denies En Banc Rehearing on Alabama Ban on Transgender Drugs for Minors

A follow-up of sorts to this recent post of mine: In another sound action yesterday (in Eknes-Tucker v. Alabama), the en banc Eleventh Circuit denied en banc rehearing of the excellent panel ruling a year ago that greenlighted an Alabama law that bars providing puberty blockers or cross-sex hormones to minors as treatment for gender dysphoria. The vote to deny was evidently 7 to 4. (I say evidently because four judges registered their dissents, and although five of the seven other judges who took part in the decision did not formally state their votes, it seems unlikely that any of them voted to grant.)

The order is accompanied by 170+ pages of opinions:

• a short opinion by Chief Judge William Pryor cogently criticizing the concept of substantive due process;
• a long opinion by Judge Barbara Lagoa (author of the panel opinion) that provides an excellent comprehensive discussion of the legal issues and of “recent revelations”—e.g., the Cass Review and whistleblower documents that discredit WPATH—that “confirm the danger that comes from hastening to afford constitutional protection in this area”; and
• three dissents.

On the Supreme Court’s forthcoming consideration in U.S. v. Skrmetti of the claim that laws like Alabama’s violate the Equal Protection Clause, Judge Lagoa forcefully explains (pp. 33-42) that Alabama’s law does not discriminate based on sex, that the text of the law is neutral as to transgender status, and that transgender status is not a quasi-suspect classification. Her analysis is consistent with Sixth Circuit chief judge Jeffrey Sutton’s excellent opinion below in Skrmetti.