State Anti-Trans Laws Aimed at Minors Flounder in Federal Court

A recent series of federal court decisions blocking states’ enforcement of bans on gender-affirming care for minors demonstrate that the laws can’t stand up against constitutional challenges, attorneys who represent transgender people told Bloomberg Law.

An attorney on the other side, however, doesn’t think all the decisions will stand once the appeals courts weigh in. There undoubtedly will be a circuit split and, possibly, a fast-tracked appeal to the US Supreme Court, said Sarah Parshall Perry, senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.

So far, though, federal courts have at least partially blocked bans in Alabama, Florida, Indiana, Kentucky, and Tennessee pending review on the merits. A federal judge in Arkansas permanently barred the state from enforcing a law that prohibited minors from obtaining puberty blockers and cross-sex hormones, which are considered by many medical groups to be the best practices treatments for gender dysphoria.

The argument that the provisions violate the due process and equal protection rights of transgender youths, their parents, and doctors is “hard to overcome,” especially since they prevent people from getting medically necessary care, said attorney Don Hayden, an advocate for transgender rights. States haven’t been able to articulate a strong enough legitimate interest to justify infringing those rights, he said.

A name partner at Mark Migdal & Hayden in Miami, Hayden has filed friend-of-the court briefs supporting LGBTQ groups in several high-profile cases, including Obergefell v. Hodges, in which the US Supreme Court recognized a right to same-sex marriage.

The judges also have used strong language in their opinions, Hayden said. In the US District Court for the Northern District of Florida, for example, Judge Robert L. Hinkle said that gender identity is “real,” and that the state hadn’t shown that lawmakers were motivated by anything other than bias against transgender people.

Legislative Tsunami

These cases stemmed from a tsunami of anti-transgender legislation enacted by states in 2023. Including earlier laws in Arkansas and Alabama, there are at least 19 provisions specifically targeting gender-affirming care for minors, according to the Movement Advancement Project.

Lawsuits have been filed against at least eight of them, and every federal court to have weighed in to date has blocked their enforcement while awaiting review on the merits, Omar Gonzalez-Pagan told Bloomberg Law. Gonzalez-Pagan is counsel and health-care strategist at Lambda Legal.

The laws deny medically necessary health care, causing irreparable and grave harm to a vulnerable population, Gonzalez-Pagan said.

Advocates are still waiting on a state court decision in Montana, where the provision doesn’t take effect until October, Gonzalez-Pagan said. Lambda Legal also challenged Oklahoma’s provision in federal court, but the state’s attorney general agreed not to enforce it while a preliminary injunction motion is pending, he said. Lambda Legal is gearing up to file new suits in Texas and Missouri.

A ninth suit, filed by the American Civil Liberties Union Foundation, challenges Idaho’s transgender care ban. The law isn’t scheduled to kick in until January 2024.

‘Crux’ of Issue

Hinkle’s observation that gender dysphoria is a real medical condition is the “crux” of the issue, Hayden said. It’s not surprising that the legal arguments for striking the laws on due process and equal protection grounds are valid, he said. The trend is likely to continue, he added.

Parshall Perry sees the cases as coming down to two questions: What is the scope of 14th Amendment’s substantive due process right of parents to direct their childrens’ upbringing, including their medical care; and to what extent do the states have authority to legislate on these types of issues.

The Supreme Court has recognized parental rights as fundamental, but it’s never explored the parameters of those rights when set against a state’s right to protect people from potentially harmful medical care, Parshall Perry said.

State governments, not the federal, traditionally regulate the medical profession, and courts generally have rejected parents’ attempts to secure experimental, unproven, or alternative treatments for their children when they are contrary to state law, she said.

Appeals Pending

The decisions to date come from trial courts and likely will be—or already have been—appealed. That means judges in at least the Sixth, Seventh, Eighth, and Eleventh circuits will be considering the issue.

The appeals could be “dangerous,” Hayden said. There might be some surprises, but the lower court opinions are so strong and so well-reasoned that they’re likely to be upheld, he said. And the district court judges who wrote them aren’t necessarily “liberal,” he said.

Gonzalez-Pagan said he expects the decisions to be upheld on appeal, especially where the judges engaged in extensive fact finding. For example, Judge James M. Moody Jr., in Arkansas, made more than 300 hundred findings of fact, he said. The appeals courts should defer to those fact findings, said Gonzalez-Pagan, who represented plaintiffs in a similar Florida case.

Parshall Perry is expecting a “patchwork” of decisions at the appellate level.

The Eleventh Circuit has already heard oral arguments on the injunction against Alabama’s ban. Parshall Perry is hoping for a “good outcome,” because the court, known for its conservative leanings, has already held that schools can require students to use bathrooms that correspond to their natal sex, she said.

The Eighth Circuit affirmed the preliminary injunction in the Arkansas case, meaning that it likely will affirm the permanent injunction as well, Hayden said. The attorney said he also thinks the Seventh Circuit is likely to affirm the injunction in the Indiana case.

Hayden told Bloomberg that he doesn’t believe the Supreme Court will take up the issue until there’s a strong body of case law discussing whether the laws violate the equal protection and due process clauses, he said. But Parshall Perry said the top court could be presented with an emergency petition as early as next fall.

This is a time-pressured question, Parshall Perry said. There is some “urgency” for the top court to resolve the due process, equal protection, and states’ rights issues, she said.