Three Trump-appointed federal judges ruled on Monday to allow one of the country’s harshest bans on gender-affirming care for minors to go into effect. In Alabama, a doctor who treats a trans person under 19 years old with puberty blockers or hormones could now face felony charges carrying up to 10 years in prison.
The 11th U.S. Circuit Court of Appeals decision reverses an injunction that temporarily blocked the health care ban and stands at odds with the majority of federal court decisions on the issue so far. The disturbing ruling gives the clearest outline yet of the reactionary judicial logic that could be used to decimate trans peoples’ right to necessary health care, should the issue be taken up by the far-right Supreme Court: the very same reasoning used to end the right to abortion.
Just as SCOTUS ruled in Dobbs v. Jackson that abortion was not constitutionally protected because it was not “deeply rooted in this Nation’s history and tradition,” the 11th Circuit stated that parents do not have a fundamental right to direct the transition-related medical care of their children.
“The use of these medications in general — let alone for children — almost certainly is not ‘deeply rooted’ in our nation’s history and tradition,” Judge Barbara Lagoa wrote, citing the Dobbs decision.
“Although there are records of transgender or otherwise gender nonconforming individuals from various points in history,” noted the ruling, “the earliest-recorded uses of puberty blocking medication and cross-sex hormone treatment for the purposes of treating the discordance between an individual’s biological sex and sense of gender identity did not occur until well into the twentieth century.”
That is, trans youths have no right to the medicine they need because that medicine is not hundreds of years old. The decision also implies that the same logic could also be used to find bans on adult trans health care unconstitutional.
To demand that unenumerated rights be “deeply rooted” in U.S. “history and tradition” is, after all, to insist that only the rights of propertied white men are recognized as fundamental.
The deployment of Dobbs to deny established civil rights comes as no surprise. When Supreme Court Justice Samuel Alito’s draft decision overturning Roe v. Wade leaked, it was clear that the “history and tradition” standard would be invoked again to hack away at an array of rights and legal precedents hard won in the last century.
To demand that unenumerated rights be “deeply rooted” in U.S. “history and tradition” is, after all, to insist that only the rights of propertied white men are recognized as fundamental — as Alito and his Christo-nationalist allies well know. The AR-15 assault weapon was only invented “well into the twentieth century” too, but we can be sure that such an argument from history would do little to aid gun control advocates in court. Too much is at stake in our collective struggle for bodily autonomy to entertain the fantasy that pointing out right-wing hypocrisy undermines right-wing rule.
When the first trans youth health care bans were heard by federal courts this past year, it was heartening that judges in state after state saw the bans for what they are — at odds with scientific consensus, ideologically driven, discriminatory, and likely unconstitutional — and blocked them. Even in some notoriously conservative courts, federal judges from Florida to Kentucky to Arkansas agreed that arguments treating youth gender-affirming care as untested and dangerous are simply not based in fact. Only one other federal court, the 6th Circuit, has reversed an injunction and permitted a ban on trans youth health care to go through, in Tennessee.
With the circuits split on the issue, it is ever more likely that a case will soon go before the Supreme Court. The 11th Circuit ruling gives a chilling taste of what a SCOTUS decision could look like: poorly argued and drenched in the sort of authoritarian dogma that the nation’s highest court is known to embrace.