U.S. District Judge Liles Burke has put a temporary hold on Alabama’s law banning the use of puberty blockers and hormones for minors with gender dysphoria while a lawsuit challenging the statute can proceed.
Burke issued a preliminary injunction Friday night and wrote that the law is likely unconstitutional.
A father who is one of the parents who challenged the law issued a statement saying the ruling means his child can continue to get needed medical care in Alabama.
Gov. Kay Ivey, who supports the law, called Burke’s ruling a temporary setback and said the state would continue to defend the law. Attorney General Steve Marshall said he was disappointed in the ruling and is working on an appeal.
The law had taken effect on Sunday and was the nation’s first such ban to take effect. A federal judge blocked an Arkansas law imposing a ban last year.
The Alabama Vulnerable Child Compassion and Protection Act makes it a felony to provide the medications for minors, people younger than 19, as well as to perform surgeries to help transgender minors transition to the gender they identify with.
Burke did not block the ban on surgeries and also let some other parts of the law stand. The plaintiffs told the judge they were not challenging the ban on surgeries.
Parents of four transgender minors ages 12 to 17 filed the lawsuit, along with a pediatrician, a child psychologist, and a pastor.
The parents, plaintiffs, and their expert witnesses say the puberty blockers and hormones are safe, effective, and necessary treatments for the small population of youth with gender dysphoria. They said taking away the medications will cause anxiety and depression and put the patients at risk of self-harm and suicide.
Experts who supported the Alabama law in the court case acknowledged the distress experienced by youth with gender dysphoria but said a watchful, waiting approach with mental health counseling is the best course of treatment. They said medical treatments for gender dysphoria should be limited to adults because of the risks caused by puberty blockers and hormones, including sterility and loss of sexual function.
But as Judge Burke noted in his ruling, 22 major medical organizations supported the plaintiffs in the case in challenging the Alabama law, including the American Academy of Pediatrics, the Alabama Chapter of the Academy of Pediatrics, and others. The organizations filed a court brief supporting the transitioning medications as part of approved standards of care for transgender youth.
Proponents of the Alabama law and lawyers for the state argued that it would protect minors from medical treatments that are “experimental.” Burke said the evidence did not support that assertion.
“Defendants (the state) produce no credible evidence to show that transitioning medications are ‘experimental,’” the judge wrote. “While Defendants offer some evidence that transitioning medications pose certain risks, the uncontradicted record evidence is that at least twenty-two major medical associations in the United States endorse transitioning medications as well-established, evidence-based treatments for gender dysphoria in minors.”
The U.S. Department of Justice also sided with the plaintiffs in the case, saying the Alabama law was unconstitutional.
Burke, who was nominated as a federal judge by President Trump in 2017, held a three-day hearing on the lawsuit last week and considered the testimony of expert witnesses from both sides along with hundreds of pages of briefs, statements, and exhibits.
In his ruling, the judge wrote:
“Because the Supreme Court and the Court of Appeals for the Eleventh Circuit have made clear that: (1) parents have a fundamental right to direct the medical care of their children subject to accepted medical standards; and (2) discrimination based on gender-nonconformity equates to sex discrimination, the Court finds that there is a substantial likelihood that Section 4(a)(1)–(3) of the Act is unconstitutional and, thus, enjoins Defendants from enforcing that portion of the Act pending trial.”
The section of the law the judge mentioned is the ban on puberty blockers and hormones.
A father who is a plaintiff in the case issued a statement about the ruling through one of the legal firms representing the plaintiffs, GLBTQ Legal Advocates & Defenders (GLAD). The parents and some other plaintiffs in the case are identified by pseudonyms for privacy and security reasons.
“This ruling means that we will be able to continue providing our child with the medical care he needs and nothing could be more important or more of a relief to our family,” said James Zoe of Birmingham, father of 13-year-old Zachary. “Alabama is our home and we hope this cruel law will not be allowed to force us from it. We are fighting for our child and will continuing fighting so that he and all transgender youth in Alabama remain able to receive appropriate medical care.”
At the conclusion of the hearing on May 6, Burke told the lawyers for the plaintiffs, the state, and the DOJ to begin preparing for what he expected would be an expedited trial. He said that meant probably in about six months.
The Legislature passed the bill on April 7 and Gov. Ivey signed it into law the next day. The law took effect 30 days later until Burke’s ruling blocking parts of it. Ivey said her position is unchanged.
“We will continue fighting to protect Alabama’s children from these radical, unproven, life-altering drugs, despite this temporary legal road block,” Ivey said in a statement. “It is especially important while they are at such a vulnerable stage in life. We will continue to uphold our duty to ensure that children are free to grow up into the adults God intended them to be, even with today’s societal pressures and modern culture.”
Fifteen states filed a brief in the case in support of Alabama’s law: Arkansas, Alaska, Arizona, Georgia, Indiana, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, and West Virginia.
In his ruling, Burke summarized the testimony of a mother of a transgender girl who is a plaintiff in the case. The mother was identified by the pseudonym Megan Poe and the courtroom was closed to the public and the media while she testified.
“According to Megan, Allison was born a male, but has shown evidence of identifying as a female since she was two-years-old,” Burke wrote. “During her early adolescent years, Allison suffered from severe depression and suicidality due to gender dysphoria. She began taking transitioning medications at the end of her sixth-grade year, and her health significantly improved as a result. Megan explained that the medications have had no adverse effects on Allison and that Allison is now happy and ‘thriving.’ When asked what would occur if her daughter stopped taking the medications, Megan responded that she feared her daughter would commit suicide.”
Lawyers for the state called one expert witness during the hearing, Dr. James Cantor, a clinical psychologist and director of the Toronto Sexuality Centre in Canada. Cantor testified in support of the “watchful, waiting” approach for minors with gender dysphoria, which involves a reliance on mental health counseling without medical interventions. Cantor also testified that several European countries have restricted the use of transitioning medications for minors because of growing concerns about their risks.
But Burke noted in his ruling that Cantor admitted on cross examination that he had limited experience treating youth with gender dysphoria and no personal knowledge of the assessments and monitoring of transgender youth who receive transitioning medications in Alabama.
“Accordingly, the Court gave his testimony regarding the treatment of gender dysphoria in minors very little weight,” Burke wrote.
Burke also noted that testimony showed that no European countries have banned the transitional medications for minors, as the Alabama law does.
Lawyers representing the plaintiffs issued statements saying that Burke’s decision brings relief to the families affected.
“This ruling means that parents of transgender children in Alabama will continue to be able to make the healthcare decisions that are best for their families,” said Jennifer Levi, transgender rights project director for GLAD. “It is an extraordinary relief. Parents should not be punished for wanting to do what’s best for their kids.”
Sarah Warbelow, legal director for the Human Rights Campaign, said, “We’re grateful the court heard the powerful pleas from the families and providers who would be so harmed by this law. Parents should never be put in the unimaginable position of choosing between denying their transgender children needed healthcare or facing prison.”
Burke’s ruling blocking the ban on puberty blockers and hormones left other parts of the law in place:
“The provision that bans sex-altering surgeries on minors; (2) the provision prohibiting school officials from keeping certain gender-identity information of children secret from their parents; and (3) the provision that prohibits school officials from encouraging or compelling children to keep certain gender-identity information secret from their parents.”