The state of Alabama is continuing to fight challenges to its 2022 ban on transgender surgeries and hormones for people under 19.

In April 2022, Gov. Kay Ivey signed VCAP (SB184) into law, which prohibits doctors in the state of 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.

A three-judge panel of the Eleventh Circuit Court of Appeals heard oral arguments in November 2022.

Despite the current deliberation by the 11th Circuit, Burke is still responsible for deliberating motions on the case.

On Wednesday, Burke heard two motions relating to discovery requested by the state from the plaintiffs based on their claim that transgender surgeries and hormone treatments for minors are medically necessary and safe.

The state is attempting to compel the plaintiffs to issue the medical records of the five transgender minors listed in the suit to see if medical professionals used the proper protocol in diagnosing, treating and evaluating the minors based on the plaintiff's purported standard.

According to the state's attorneys, since the court relied on the plaintiff's testimony about accepted medical guidelines and their individual diagnoses as relevant to the case, extensive medical and mental records should be available for the state to examine past medical and mental health records.  

The state requested the records to see the full scope of the effects the treatments had on the minor plaintiffs, such as side effects of the transitioning treatments, history of gender expression; mental health comorbidities like anxiety, depression, ADHD, or autism; whether they were treated for past psychiatric illness or trauma; and their social and family surroundings.

"We have to be able to assess whether these [treatments] really are appropriate and essential," said Alabama's Solicitor General Edmund LaCour. "And there are all sorts of different biological, social and psychological factors that could go into a child with gender dysphoria, so we need to be able to assess those records and see."

The plaintiffs claim the requested records would violate the privilege between the patient and doctor. Further, they claim that the records would be irrelevant since the VCAP bans transgender treatments across the board.

The state is also requesting documents from the organizations used by the plaintiffs to assert that transgender hormones and surgeries are the standards of care in treating gender dysphoria.

In their arguments, plaintiffs have repeatedly cited information from The American Academy of Pediatrics (AAP), The World Professional Association for Transgender Health (WPATH) and the Endocrine Society to validate their claims.

All of the listed organizations offer full support for "gender-affirming care" and encourage "social transitioning" at any age and medical transitioning in early and late teens.

When the state requested discovery on internal documents from those groups, the organizations filed a motion to quash.

"[T]he Court should either deny the interest groups' motion to quash or grant this motion… to exclude entirely evidence based on the opinions of AAP, WPATH, and the Endocrine Society," state attorneys said in a motion. "Any other course would result in a fundamentally unfair adjudication in which Plaintiffs could rely on contested claims of "consensus" by self-interested private organizations without ever allowing Defendants to probe those untested assertions through discovery."

After resolving the disputes with the other organizations, the state then turned its full attention to WPATH. The guidelines it offers for treating gender dysphoria were repeatedly called "the gold standard" in court proceedings.  

The state is currently seeking a list of WPATH's stakeholders and other information the state believes could prove political bias and a lack of substantive evidence in the guidelines.

Burke said he was inclined to rule more in favor of the state than not since the validity of the plaintiff's claim heavily relies on the WPATH guidelines. He also encouraged the parties to arrive at a compromise before he made a decision.

"The plaintiffs, in this case, are relying on [WPATH] standards for their case," Burke said. "I think if they were standing up here right now, they would say the case rises or falls on those to some degree."

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