Thanks to a recent decision by the 11th Circuit Court of Appeals, Alabama will soon be able to enforce the Vulnerable Child Protection Act (VCAP), which bans transgender surgeries and hormones for minors.

In April 2022, Gov. Kay Ivey signed VCAP (SB184) into law, which prohibits doctors in Alabama from performing transgender operations or prescribing cross-sex hormones and puberty blockers to individuals under 19. 

VCAP went into effect on May 8, 2022, but was blocked by U.S. District Judge Liles Burke a few days later. The injunction by Burke came after multiple parties added themselves as plaintiffs in the case, including five transgender minors by way of their parents, the United States of America and Kaitlin Toyama, an attorney-advisor with the civil rights division of the DOJ.

On Monday, the 11th Circuit Court of Appeals struck down the preliminary injunction, saying it did not apply the correct standard of scrutiny.

“On review, we hold that the district court abused its discretion in issuing this preliminary injunction because it applied the wrong standard of scrutiny,” the opinion written by Circuit Judge Barbara Lagoa stated. “The plaintiffs have not presented any authority that supports the existence of a constitutional right to ‘treat [one’s] children with transitioning medications subject to medically accepted standards,’”

The original injunction claimed the Due Process Clause in the 14th Amendment to the U.S. Constitution granted the right for parents to “treat” children with cross-sex hormones, puberty blockers and other interventions. Using the Supreme Court Decision in Dobbs V. Jacksons Women’s Health, which struck down the federal protection for abortion rights, the 11th Circuit ruled that the right to the interventions did not meet Dobbs’ standard for rights granted in the Due Process Clause.

“In this case, the district court determined that the ‘right to treat [one’s] children with transitioning medications subject to medically accepted standards’ is one of the substantive rights guaranteed by the Due Process Clause and that, therefore, section 4(a)(1)–(3) is subject to strict scrutiny,” the opinion said. “But the use of these medications in general—let alone for children—almost certainly is not ‘deeply rooted’ in our nation’s history and tradition.”

It continued, “This unproven, poorly studied series of interventions results in numerous harmful effects for minors, as well as risks of effects simply unknown due to the new and experimental nature of these interventions.

Attorney General Steve Marshall applauded the decision, having led the charge in Alabama and several states that have enacted similar bans.

“The Eleventh Circuit reinforced that the State has the authority to safeguard the physical and psychological wellbeing of minors, even if the United States Attorney General and radical interest groups disapprove,” Marshall said. “Alabama takes this responsibility seriously by forbidding doctors from prescribing minors sex-modification procedures that have permanent and often irreversible effects. This a significant victory for our country, for children, and for common sense.”

VCAP will still face a trial beginning next year, but this recent decision will allow the state to enforce VCAP.

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