In appeal, Alabama says access to gender-affirming care not ‘deeply rooted in our nation’s history’

“The Constitution reserves to the State—not courts or medical interest groups—the authority to determine that these sterilizing interventions are too dangerous for minors,” Alabama officials wrote in a brief filed Monday.

by Brooke Migdon | Jun. 29, 2022

Alabama Attorney General Steve Marshall testifies during a Senate Judiciary Committee’s confirmation hearing of Supreme Court nominee Ketanji Brown Jackson, on Capitol Hill in Washington, Thursday, March 24, 2022. (AP Photo/Manuel Balce Ceneta)

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Alabama this week argued that the state has more authority than parents to regulate gender-affirming medical care for transgender children.

State officials including Alabama Attorney General Steve Marshall (R) argued that access to gender-affirming care cannot be guaranteed because it is not “deeply rooted in our nation’s history and tradition.”

The argument borrows language directly from the Supreme Court’s majority opinion in overturning Roe v. Wade, which protected the constitutional right to an abortion for nearly 50 years.

The state of Alabama this week in an appeal said a partial injunction against its felony ban on gender-affirming health care for transgender minors should be overturned, arguing that the state has greater authority than parents to regulate the medical care of children.

Borrowing language from the Supreme Court’s recent majority opinion in overturning Roe v. Wade – the landmark 1973 ruling that established the constitutional right to an abortion – Alabama argued that access to gender-affirming medical care is not constitutionally guaranteed because it is not “deeply rooted in our nation’s history and tradition.”

“Transitioning treatments are neither ‘deeply rooted’ nor ‘implicit in the concept of ordered liberty,’” the state wrote in a brief filed Monday in the U.S. Court of Appeals for the Eleventh Circuit.

The state also argued that restricted access to gender-affirming medical care should not be limited to children, and transgender adults should also be barred from receiving treatments.

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“No one—adult or child—has a right to transitioning treatments that is deeply rooted in our Nation’s history and tradition. The State can thus regulate or prohibit those interventions for children, even if an adult wants the drugs for his child,” Alabama officials including state Attorney General Steve Marshall (R) wrote Monday in the brief.

“Just as the parental relationship does not unlock a Due Process right allowing parents to obtain medical marijuana or abortions for their children, neither does it unlock a right to transitioning treatments,” the state argued. “The Constitution reserves to the State—not courts or medical interest groups—the authority to determine that these sterilizing interventions are too dangerous for minors.”

Alabama’s ban on gender-affirming health care for transgender minors was signed into law by Gov. Kay Ivey (R) in April and went into effect early the following month. Under the law, it is considered a felony – punishable by up to a decade in prison – to provide or recommend puberty blockers, hormone therapy or other gender-affirming interventions to patients younger than 19 years old.

In a signing statement, Ivey wrote that she believes “very strongly that if the Good Lord made you a boy, you are a boy, and if he made you a girl, you are a girl.”

The law was immediately challenged in several lawsuits asserting that the measure threatens the health and well-being of transgender children, who already face elevated rates of anxiety, depression and suicidality, according to the LGBTQ+ youth suicide prevention and crisis intervention group The Trevor Project.

Less than a week after the law took effect, a federal judge issued a preliminary injunction blocking the state from criminalizing gender-affirming care for transgender minors and punishing their doctors.

Public school teachers in Alabama, however, are still required under the law to notify a child’s parents or guardians if the child chooses to go by a different name or use different pronouns than those they were assigned at birth.

Gender-affirming health care for transgender minors is supported by most major medical organizations — including the American Medical Association, the American Academy of Pediatrics and the American Psychological Association — all of which say restrictions on such care put the wellbeing of young people at risk.