Dr. Georgulas, a pediatrician, explained that Luna insisted on wearing dresses and identifying as a girl since she was three years old; additionally, at the child’s five-year-old checkup, Luna was diagnosed with “gender identity disorder.”6 Dr. Georgulas accepted that the child wanted to identify as female for the time being and, if this identification persisted, would consider puberty blockers at the appropriate age.7 Mr. Younger approved of his child waiting until age 18 to dress as a girl but did not support a full transition.8
In 2020, as a response to this national news story, several states introduced legislation prohibiting doctors and physicians from providing certain treatments to children, including puberty blockers, hormone therapies, and gender-affirming surgeries.9 One state to make headlines regarding restrictions on transgender treatment in minors is Alabama, which recently enacted a law restricting gender-affirming treatment in minors.10 This law, along with others that have been considered by state legislatures across the country, has faced criticism from transgender activists and medical experts; the question becomes whether these laws could survive constitutional scrutiny under the Fourteenth Amendment doctrines of due process and equal protection.11 Specifically, the main issue is the extent to which these laws may intrude on fundamental rights and whether states have a legitimate interest in limiting those rights.12 Based on the Supreme Court’s jurisprudence regarding the Fourteenth Amendment, these laws are likely unconstitutional as a violation of due process and equal protection.13
Part I of this article will discuss the condition of gender dysphoria, the development of knowledge in the medical field concerning the condition, how the condition affects children, the currently available treatments for the condition, and the ethical considerations involved in treating children with gender dysphoria. Part II will discuss the new Alabama law and look specifically at the measures Alabama has taken to limit gender-affirming treatment. Part III will define the relevant constitutional doctrines applicable to these laws; specifically, this article will focus on the constitutional right for parents to direct the upbringing of their children, in addition to the Fourteenth Amendment’s Equal Protection Clause. Part III will also analyze Alabama’s law under these constitutional principles.
I. The Condition of Gender Dysphoria
A. What Is Gender Dysphoria?
Gender dysphoria is a medical condition that “refers to discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.”14 To be diagnosed with gender dysphoria, a child must have “a marked incongruence between one’s experienced/expressed gender and assigned gender” for a minimum of six months, a “strong desire to be of the other gender or an insistence that one is the other gender,” and at least five of the following:
- In boys (assigned gender), a strong preference for cross-dressing or simulating female attire; or in girls (assigned gender), a strong preference for wearing only typical masculine clothing and a strong resistance to the wearing of typical feminine clothing.
- A strong preference for cross-gender roles in make-believe play or fantasy play.
- A strong preference for the toys, games, or activities stereotypically used or engaged in by the other gender.
- A strong preference for playmates of the other gender.
- In boys (assigned gender), a strong rejection of typically masculine toys, games, and activities and a strong avoidance of rough-and-tumble play; or in girls (assigned gender), a strong rejection of typically feminine toys, games, and activities.
- A strong dislike of one’s sexual anatomy.
- A strong desire for the physical sex characteristics that match one’s experienced gender.15
Unfortunately, these characteristics are not entirely objective, meaning sometimes diagnoses for gender dysphoria can be inconsistent among different physicians.16
Despite the difficulties in diagnosing gender dysphoria, there is evidence of differences in brain functioning for those who experience gender dysphoria compared to their cisgender counterparts.17 Julia Bakker’s study showed that “hypothalamic responses of both adolescent girls and boys diagnosed with [gender dysphoria] were more similar to their experienced gender than their birth sex.”18 This means that the emotional brain functioning in males diagnosed with gender dysphoria looked similar to that of a biological female, and the emotional brain functioning in females diagnosed with gender dysphoria looked similar to that of a biological male.19
B. Who Experiences Gender Dysphoria?
Gender dysphoria affects a small portion of the population, although with growing acceptance of the transgender movement, more teenagers are expressing discomfort in their gender assigned at birth than in previous years.20 Some recent studies show that as little as 1.2% of the adolescent population experience gender dysphoria.21 Although there is still much research to be done, it appears that gender dysphoria typically develops in children before puberty.22 However, just because a child is diagnosed with gender dysphoria early in life does not necessarily mean that the child will identify as transgender into adulthood.23 Furthermore, as acceptance and advocacy for transgender rights continue to grow, evidence shows that more children are being diagnosed with gender dysphoria, likely because the once-associated stigma continues to diminish.24
C. What Effects Does Gender Dysphoria Have on Children?
Research in this area is still new and constantly developing; however, there is still significant evidence regarding the mental and physical effects that are prevalent in children and adolescents experiencing gender dysphoria. To understand the mental effects on minors, it is first important to understand the science explaining why some children experience gender dysphoria. Some studies show that children diagnosed with gender dysphoria are statistically more likely to be gay, lesbian, or bisexual when reaching adulthood.25 Those who advocate against allowing minors to transition highlight examples of desistence as evidence that children should not undergo gender-affirming treatment because the child may come to identify with their biological sex as they continue to grow and develop.26
Furthermore, the mental effects on minors experiencing gender dysphoria is an important part of the discussion regarding gender-affirming treatments. There are two contexts that are important to consider: the mental health of those who have not undergone gender-transition treatments and those who have received treatment.27 While research regarding these two contexts is somewhat incomplete, there are still discernable differences between the two.28
For many transgender or nonconforming youth, there are many common mental health conditions, but anxiety and depression tend to be most common.29 Regarding anxiety and depression, several studies have shown that transgender youth exhibit anxiety and depression at higher rates than youth who identify as their biological sex.30 According to one study, not only did transgender youth have higher rates of anxiety, but they were also disproportionately affected by suicidal ideation, suicide attempts, and self-harm.31 The discrepancies between transgender youth and cisgender youth are quite distinct:
Compared to cisgender matched controls, transgender youth had an elevated probability of having DSM-IV-TR diagnosed depression (50.6% vs. 20.6%; RR=3.95; 95% CI=2.60,5.99) and anxiety (26.7% vs. 10.0%; RR=3.27; 95% CI=1.80,5.95). . . . Transgender youth also disproportionately endorsed suicide ideation (31.1% vs. 11.1%; RR=3.61; 95% CI=2.17,6.03), suicide attempt (17.2% vs. 6.1%; RR=3.20; 95% CI=1.53, 6.70), and self-harm without lethal intent (16.7% vs. 4.4%; RR=4.30; 95% CI=1.95, 9.51) relative to matched controls. A significantly greater proportion of transgender youth compared to matched cis-gender controls accessed inpatient mental health care (22.8% vs. 11.1%; RR=2.36; 95% CI=1.33, 4.20) and outpatient mental health care (45.6% vs. 16.1%; RR=4.36; 95% CI=2.69, 7.05) services.32
While the previous studies show important distinctions between transgender and non-transgender youth, it is also important to look at mental health differences between those who experience gender dysphoria and undergo gender-affirming treatment and those who do not.33 There is evidence that mental health improves in transgender youth after transitioning to the desired gender, although there is likely the need for more research in order to determine the wholesale effects that treatment has on mental health.34
A team of specialists in the Netherlands published a study that observed treatment in minors and the effects of treatment on their physical and mental health.35 According to this study, patients who received puberty suppression “showed a decrease in behavioral and emotional problems.”36 There has also been research in the United States that suggests gender-affirming treatment may help mental health outcomes for those who continue identifying as transgender into adolescence and adulthood.37 However, conflicting evidence may suggest that puberty blockers lead to worse mental health outcomes in children.38 It is unclear whether improvements or diminishment of mental health outcomes in transgender youth are causally related to aging, gender-affirming treatments, both, or neither.
Physically, there is evidence that delaying puberty could adversely affect a child’s bone development.39 Studies have also demonstrated that pubertal functions stimulate “cognitive maturity” in children, and stunting those processes through puberty suppression can hinder cognitive development.40 However, many adolescents are willing to take these risks in order to alleviate the discomfort they feel in their assigned sex.41 While there is evidence that gender-affirming treatment does cause some harm to children and adolescents, the treatment may nonetheless be what is best for the patient if they holistically feel better about themselves and their appearance.42 Ultimately, each child is different, and what is best for one individual may not be what is best for another.
D. What Are the Available Treatments?
When discussing a child’s request to transition, it is important to acknowledge the vast differences in the three main paths for treatment that are available to children: puberty blockers, hormone injections and therapies, and gender-affirming surgery.43 Each of these treatment options has warranted different reactions from the medical community, and each has very different effects on children, which require separate ethical and medical considerations.44
Gonadotropin releasing hormone (GnRH) agonists, otherwise known as puberty blockers, prevent the development of secondary sexual characteristics in children, such as breast development in females or the growth of facial hair in males.45 While children are in the process of receiving puberty blockers, they are continually monitored and regularly receive psychotherapy.46 Puberty blockers cannot reverse any pubertal functions that have already transpired; however, they can halt any further progression of secondary sex characteristics from developing in the child.47 Transgender activists tout the importance of puberty blockers as a necessary step for transgender children to avoid the stress that comes from their gender incongruence and as a conduit for preventing social pressures and alienation.48
The next step in gender-affirming treatment is cross-sex hormone (CSH) therapy, which is a treatment with some irreversible effects that facilitates changes in the patient’s physical appearance to align with their desired sex.49 CSH therapy involves taking hormones that are typical of the desired gender identity of the patient.50 Male-to-female patients receive estrogen, while female-to-male patients receive testosterone.51 There are several different avenues for the patient to receive these hormones, including needles, creams, and patches.52 Hormone therapies are not prescribed to young children, but rather are prescribed to older adolescents who are closer to the age of majority, and at that point there is less risk of desistence that drives the hesitancy for allowing these therapies among minors.53
The final step in the transitioning process is surgery to align the patient with their desired gender.54 Gender-affirming surgery gives transgender patients a solidified congruence between their physical appearance and their gender identity.55 For female-to-male transitions, the patient can undergo several different surgeries, including a phalloplasty, metoidioplasty, hysterectomy, or vaginectomy.56 These surgeries focus on constructing male sexual anatomy from tissue in other areas of the body and removing the female sexual anatomy.57 A male transitioning to a female could undergo breast augmentation, a vaginoplasty, or facial feminization; these procedures construct female sexual anatomy or mold physical features to give the patient the physical appearance of a female.58 While many in the medical community disagree on whether physicians should prescribe puberty blockers and CSH therapy to children and adolescents, there is an overwhelming consensus that minors should not undergo gender-affirming surgery until reaching adulthood because of the irreversible nature of these surgeries.59
Autonomy is an important ethical consideration; however, minors generally need parental consent for important medical decisions.60 This legal and medical restriction on a child’s ability to make his or her own decisions heightens the need to consider the child’s autonomy.61A child’s autonomy when considering hormone therapy should be respected since waiting until the patient is 18 years old and has experienced puberty may cause undesired developments.62 Forcing children to wait until they are 18 years of age restricts their autonomy by taking the decision away from them because the child has already undergone bodily processes that are irreversible.63
Opponents of allowing children to undergo puberty blockers and CSH treatments view autonomy differently, citing the lack of research regarding long-term effects of puberty blockers and hormone therapies to deny children and parents the opportunity to make an informed decision regarding treatment.64 This lack of research presents a gap in information needed for the parents and children to make a truly informed decision that is best for the child.65 Additionally, because hormone therapies could potentially cause infertility in patients, opponents argue that minors do not have the capacity to consent to a treatment with such major and permanent effects.66 Because this is a developing field, it is important for physicians to inform parents of the unknowns regarding these treatment options in order to respect the autonomy of the child in making the most informed decision possible.67
II. The Alabama Law68
While several states have introduced legislation that would limit or prohibit gender-affirming treatment in minors, Alabama was one of the first states to codify these limitations into law.69 The Vulnerable Child Compassion and Protection Act passed the state’s Senate and House of Representatives and became law on May 8, 2022.70 However, the law has been challenged in federal court, and Judge Liles C. Burke for the Middle District of Alabama enjoined the state from enforcing several provisions of the law pending a trial on the merits.71
The law stated three main purposes relating to the treatment of minors: to “prohibit the performance of a medical procedure or the prescription or issuance of medication, upon or to a minor child, that is intended to alter the minor child’s gender or delay puberty” and to give applicable exceptions; to provide appropriate disclosures by schools to parents; and to set forth criminal sanctions for violations.72 The law aims to achieve these goals through three major provisions.
First, the law defines the term “sex” as “[t]he biological state of being male or female, based on the individual’s sex organs, chromosomes, and endogenous hormone profiles.”73 The definition here is meant to provide a clear definition for the term as it is used throughout the law, but there may likely be a concurrent purpose, which is to reject the idea that sex can be a mutable characteristic. The term “sex” is used throughout the law as a state of a minor’s person that cannot be altered through medical intervention.
Additionally, the law prohibits several “practices” that are performed “for the purpose of attempting to alter the appearance of or affirm the minor’s perception of his or her gender or sex, if that appearance or perception is inconsistent with the minor’s sex as defined in this chapter.”74 There are six different practices listed that are to be prohibited in Alabama: providing puberty blockers; providing “supraphysiologic doses of testosterone” to biological females; providing “supraphysiological doses of estrogen” to biological males; performing surgeries that could potentially cause sterilization in minors; performing gender-affirming surgery on minors that “artificially construct[s] tissue with the appearance of genitalia that differs from the individual’s sex”; and “removing any healthy or non-diseased body part or tissue, except for a male circumcision.”75 Subsection (b) of the law provides relevant exceptions to these practices for individuals who are born without a clear biological sex, such as intersex individuals.76 Any violation of these prohibited practices is considered a Class C felony.77
Finally, the law prohibits school personnel, including a “nurse, counselor, teacher, principal, or other administrative official at a public or private school,” from “[e]ncourag[ing] or coerc[ing] a minor to withhold” information from the minor’s parents that the minor’s perception of his or her gender or sex is inconsistent with [the minor’s] sex.”78 The law also prohibits the school personnel themselves from withholding this information from a student’s parents.79 The law’s restrictions placed on parents and minors present a fundamental constitutional question: whether the state of Alabama has a legitimate interest in prohibiting gender-affirming treatment in minors when parents have a fundamental right to direct the upbringing of their children.
III. The Fourteenth Amendment
The Alabama law has been challenged under several legal theories, including Due Process and Equal Protection.80 Based on the history of these doctrines, it is likely that laws prohibiting treatment for transgender youth, such as the Alabama law, are unconstitutional under both due process and equal protection, because the state’s interests in prohibiting these treatments do not outweigh the parents’ fundamental right to direct the upbringing of their child.81 Specifically, these laws are overly broad and do not specifically address the interest the State has in protecting the health and safety of children.
A. Substantive Due Process
While substantive due process has a long history in American jurisprudence, the Supreme Court has never graced its opinions with a concrete definition of what substantive due process actually means.82 The Due Process Clause of the Fourteenth Amendment states that “No State shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law.”83 The Supreme Court has used substantive due process to strike down laws that infringe on individuals’ fundamental rights.84 While there is no “formula” in determining whether a particular right is fundamental, courts are to exercise their reasonable judgment in identifying rights that are so fundamental that the state is to respect such a right.85
Regarding the government’s prohibition of treatment for minors diagnosed with gender dysphoria, the relevant fundamental right is the right of a parent to direct the upbringing of her children.86 The Supreme Court has long recognized that parents have a fundamental right in controlling the upbringing of their children, and this interest has protected parents’ decisions regarding education, care, and control of their children.87 However, this fundamental right has been limited when the state determines that the well-being and safety of the child is paramount.88 Because the right to direct the upbringing of one’s child is a fundamental right, the state should not be permitted to deprive a person of this right unless there is a compelling government interest, and the applicable law is narrowly tailored to serve that interest.89
B. Alabama’s Law Violates Due Process
Accordingly, the Alabama law is likely an unconstitutional infringement on parents’ fundamental right to make decisions that are in the best interest of their children. While there may be an important state interest here, that interest does not outweigh the rights of parents and children to make medical decisions that are best for the child. These decisions should be left with those who have the best interest of the child in mind—the parents, the physician, and the transgender child.
Part of raising a child is making medical decisions on behalf of the child because children generally do not have the capacity to make their own medical decisions.90 Children do not have the ability to drive themselves to the doctor when they have medical needs, nor do they have the capacity to understand why certain medical decisions must be made. If parents did not have the ability to make medical decisions for their children, surely children would routinely refuse certain treatments, for example, vaccines, because they are unable to understand the importance of such medical decisions. Additionally, when it comes to the health of their children, parents generally have the best interest of the child in mind.91 For these reasons, medical decisions of the child are part of a parent’s fundamental right to direct the child’s upbringing.
Parents, in the same way, should be part of the decision-making process regarding gender-transition treatments when their children have been diagnosed with gender dysphoria. Given the high rates of mental health struggles among transgender youth, parents should remain at the forefront of deciding whether these treatments are best for their child, especially if the parents, alongside the child’s physician, believe the treatment would be in the best interest of the child.92 While the research is somewhat incomplete, there is still not evidence of long-term harm on children from puberty blockers, and with the evidence that adolescents and adults did not regret taking puberty blockers, it is counterproductive to now ban puberty blockers for minors when there is little evidence to support that those affected by these laws later regretted the treatment that is now being banned.93
CSH therapy is somewhat more controversial than puberty blockers because it can cause infertility among minors at an early age, but context is important when considering the minor’s and parents’ interest in choosing hormone therapy.94 If a minor is considering CSH therapy, that means they have likely already been taking puberty blockers for several years. Hormone therapies are not prescribed to young children, but rather are prescribed to older adolescents who are closer to the age of majority, and at that point there is less risk of desistence that drives the hesitancy for allowing these therapies among minors.95 Finally, allowing these treatments makes gender-affirming surgery less intrusive if the minor reaches the age of 18 and decides they want to take further steps to affirm their gender identity because the hormone therapy would have already facilitated changes in the physical appearance of the person seeking surgery.96 Prohibiting puberty blockers and CSH therapy for minors may prevent some from going through with treatments that they would later come to regret, but for those adolescents who continue to identify as a different gender than their gender assigned at birth, their bodies will have gone through irreversible processes that even surgery would not fully alleviate.
On the other hand, the state likely has an interest in addressing issues that arise from these treatments because the state has an interest in the protection of children.97 When looking at all available treatments, there is likely a compelling interest in prohibiting minors from undergoing gender-affirming surgery because there is an overwhelming consensus in the medical community that children should not undergo permanent, irreversible surgery to affirm their gender identity.98 Similarly, the lack of conclusive research regarding long-term effects of puberty blockers and CSH therapy for children may support the state’s interest in limiting these treatments in some capacity. However, when comparing the potential benefits and harms of gender-affirming treatment, it becomes clear that the government’s interest in completely prohibiting these treatments is not compelling enough to justify an outright ban on treatment, and even if it were compelling, the Alabama law is not narrowly tailored to address such an interest.
The prohibition of hormone therapies for minors may seem justified when considering they can cause sterilization of the individual.99 The state would argue that this prohibition is within their police power to protect the health and well-being of children. However, that argument breaks down when considering the reason minors seek hormone therapies. If a minor is considering hormone therapy, that means he or she has decided to transition to the opposite sex.100 While it is true that some effects of hormone therapies may be irreversible, if a minor has gone through puberty blockers and has come to the decision, alongside advice from their parents and physician, that hormone therapies are the best next step, the state should not interfere with that decision. Physicians already have certain standards they abide by before providing gender-affirming treatment for minors, and states should trust the medical community’s guidelines regarding this complex and relatively new area of medical treatment.101
Broad and sweeping prohibitions on gender-affirming treatments are not narrowly tailored, even if one were to assume the state had a compelling interest in doing so, in protecting children from potential irreversible harm to their bodies. Alabama could have narrowly tailored its law to protect children while still avoiding interference in the physician’s relationship with children experiencing gender dysphoria and their parents. For example, the state could provide for certain requirements to be met before a child could receive these treatments, while also prohibiting treatment for children who have not received a proper diagnosis of gender dysphoria. The goal of these laws should be to prevent irreversible changes for a minor who may show signs of desistance before reaching adulthood, rather than mandating an outright ban on treatment altogether.
Based on the balancing between the state’s interests in prohibiting gender-affirming treatment and parents’ fundamental right to direct the upbringing of their children, these laws are likely unconstitutional because they are not narrowly tailored to serve a compelling state interest. While there may be a compelling interest here in protecting the health and well-being of children from certain treatments, Alabama’s law does not actually address that interest, but rather implements a broad prohibition that takes medical decisions away from parents and their children.
C. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment states that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”102 According to the Supreme Court, the Equal Protection Clause commands that “all persons similarly situated should be treated alike.”103 Furthermore, if the state action creates “arbitrary or irrational” distinctions that are targeted toward a politically or socially unpopular class of persons, that action is unconstitutional.104 When a state law is challenged under equal protection, there are three potential levels of scrutiny for a court to apply: rational basis review, intermediate scrutiny, or strict scrutiny.105
The level of scrutiny to be applied by a court is dependent on whether there is a fundamental right involved and on the statutory classification in the law being challenged.106 The highest level of scrutiny is strict scrutiny—when strict scrutiny applies, the law is presumptively void, unless the state can prove that the classification is necessary (i.e., “narrowly tailored”) to accomplish a compelling governmental interest, and the state must use the least restrictive means necessary to accomplish that interest.107 Any law that has a statutory classification based on a suspect classification, including race, is subject to strict scrutiny.108
The second level of scrutiny is intermediate scrutiny, which is reserved for quasi-suspect classifications, such as sex or for “illegitimate” children.109 When intermediate scrutiny applies, the law is also presumptively void, and the state must prove that the challenged law has a substantial relationship to an important state interest—the government’s objective must be more than legitimate but does not necessarily have to be compelling.110 If strict or intermediate scrutiny does not apply, the law is subject to rational basis review, in which the law is presumptively valid, and the plaintiff must prove either that the classification does not rationally advance a legitimate state objective or that the state’s objective is not legitimate.111
Some circuit courts have held that a state creates a sex-based classification when the law applies to those who identify as transgender.112 Because these laws are considered sex-based classifications, intermediate scrutiny would apply to these laws prohibiting gender-transition treatments for minors for purposes of the Equal Protection Clause.113 Based on the intermediate scrutiny test, these laws are likely to also be unconstitutional under the Equal Protection Clause. Again, while the state has a lower burden under intermediate scrutiny, it is still unlikely that the state’s interests surpass the interest in providing medical treatment for children with gender dysphoria.
D. Alabama’s Law Violates Equal Protection
On its face, this law applies equally to males and females, and therefore Alabama would argue that there is no sex-based classification here.114 However, this argument ignores the reality of who is affected by these laws. Not all male children are affected by this law, and not all female children are affected; rather, the only children affected by the law are those who wish to identify as a gender that is incongruent with their biological sex.115 The state is discriminating against these children for not conforming to traditional norms relating to sex and gender, which should constitute sex-based discrimination subject to intermediate scrutiny.116
Alabama would also argue that even if this is sex-based discrimination, there is no equal protection violation because transgender children are not similarly situated with other children—after all, there is no reason for a child identifying as their biological sex to seek these treatments, and those children are not subject to the dangers that are presented by receiving gender-affirming treatments. However, this argument is rooted in the misconception that children have made a choice to identify as the opposite sex. As discussed earlier, these children seek treatment because they suffer real and debilitating stress from identifying as their biological gender, which also demonstrates why this is a class of individuals worth protecting.
The discernable differences between the mental health of transgender children and children who identify as their biological sex demonstrate why children experiencing gender dysphoria are a class worth protecting. While the state has a legitimate interest in protecting children from sustaining permanent damage to their bodies, it also has an interest in protecting these children from mental and psychological damage that could remain with them into adolescence and adulthood. While the Alabama law may arguably protect children from physical harm, it does not account for the mental health problems that may result from prohibiting these children from receiving treatment.
These concerns show that the Alabama law is not substantially related to an important government interest. The sweeping prohibitions on gender-affirming treatment enacted by Alabama do not provide a sufficient justification for discriminating against the class that is transgender children. To comply with the Equal Protection Clause, Alabama needs to substantially relate the law to its interest of protecting children. The Alabama law is not protecting children, but rather implementing overly broad prohibitions that could cause more harm to children than good. Because of the complexities regarding the treatment of children with gender dysphoria, states should avoid sweeping legislation that attempts to prohibit such treatment and, rather, should leave these decisions to the children and their parents.
These are complex issues and questions that have only entered the sphere of public debate within the last several years. Gender-affirming treatment for children and adolescents is still an extremely new concept with many questions that remain regarding effectiveness and long-term consequences on the individual. The novelty of these treatments presents several different legal, medical, and ethical considerations, which include balancing individual autonomy of children with the potential benefits and harm that these treatments may cause in the future, the interest parents have in raising their children as they see fit, and the state’s interest in protecting children from irreparable harm. The complexity of these considerations leads to challenging discussions and potentially conflicting outcomes from child to child, which is why the state should not be involved in the decision-making process.
Both supporters and opponents of gender-transition treatments likely believe they are acting in the best interest of children experiencing gender dysphoria, and there are legitimate concerns on both sides of the debate. It is for this very reason that states should leave these decisions with those who are truly affected: the parents and the child. Based on this article’s analysis of both due process and equal protection jurisprudence, the Alabama law is unconstitutional because the state’s interest in prohibiting gender-affirming treatments in minors does not outweigh parents’ fundamental right to direct the upbringing of their children. Furthermore, there is not a sufficient justification for treating transgender children differently than other children.
1. See Lateshia Beachum, Two Parents Disagree over Whether Their 7-Year-Old Is Transgender. Now They Share Custody, Wash. Post (Oct. 29, 2019), https://www.washingtonpost.com/dc-md-va/2019/10/29/two-parents-disagree-over-whether-their- year-old-is-transgender-now-they-share-custody/.
2. See id.
3. See Holly Honderich, Texas Parents Battle in Court for Custody of Transgender Child, BBC News (Oct. 25, 2019), https://www.bbc.com/news/world-us-canada-50172907.
4. Jo Ivestor, I Have a Transgender Child in Texas. I Know Gender Affirming Parenting Can Save a Child’s Life, NBC News (Nov. 3, 2019), https://www.nbcnews.com/think/opinion/i-have-transgender-child-texas-i-know-gender-affirming-parenting-ncna1075281.
5. J. David Goodman, How Medical Care for Transgender Youth Became “Child Abuse” in Texas, N.Y. Times (Mar. 11, 2022), https://www.nytimes.com/2022/03/11/us/texas-transgender-youth-medical-care-abuse.html.
6. Honderich, supra note 3.
9. See Scottie Andrew, This Year, at Least Six States Are Trying to Restrict Transgender Kids from Getting Gender Reassignment Treatments, CNN Pol. (Jan. 22, 2020), https://www.cnn.com/2020/01/22/politics/transgender-healthcare-laws-minors-trnd/index.html.
10. See Ala. Code § 26-26-2 (2022); see also Rick Rojas, Alabama’s Transgender Youth Can Use Medicine to Transition, Judge Rules, N.Y. Times (May 14, 2022), https://www.nytimes.com/2022/05/14/us/alabama-transgender-law.html; A Judge Blocks Part of an Alabama Law That Criminalizes Gender-Affirming Medication, NPR (May 14, 2022, 9:46 AM), https://www.npr.org/2022/05/14/1098947193/a-judge-blocks-part-of-an-alabama-law-that-criminalizes-gender-affirming-medicat [hereinafter Judge Blocks].
11. Judge Blocks, supra note 10.
12. See infra note 81 and accompanying text for a discussion of Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022). These laws may also be subject to statutory challenges under antidiscrimination statutes or state constitutional challenges. However, while these challenges are likely equally legitimate, this article will only address the constitutionality of these laws under the U.S. Constitution. Furthermore, this article does not take a position as to whether minors should undergo gender-affirming treatment or whether it is a good or bad idea. Rather, the article focuses strictly on the constitutionality of laws prohibiting such treatment.
13. See infra Part III.
14. See World Pro. Ass’n for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (Version 7) 5 (2012), https://www.wpath.org/publications/soc [hereinafter Standards of Care]. The term “gender dysphoria” should not be confused with the term “gender nonconformity,” which refers to a person’s proclivity to partake in conduct or expression that would differ from traditional cultural norms defined by a person’s sex assigned at birth; while some people who are gender nonconforming also have gender dysphoria, that is not always the case. See id. This article will mention both when the context is appropriate, but the differences between the two are discernable and important to distinguish between.
15. Gender Dysphoria, Am. Psychiatric Ass’n (reviewed by Jack Turban, M.D., M.H.S.) (Nov. 2020), https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria (punctuation added).
16. See Heather Brunkskell-Evans, The Medico-Legal “Making” of “The Transgender Child,” 27 Med. L. Rev. 640, 647 (2019) (“There is a lack of objective criteria for diagnosing gender dysphoria, since there is no ‘physical test . . . for detecting gender variance that may develop into adult dysphoria’. . .”) (quoting Dep’t of Health, Medical Care for Gender Variant Children and Young People: Answering Families’ Questions (Nat’l Health Serv., London 2018)).
17. See Julie Bakker, Brain Structure and Function in Gender Dysphoria, Endocrine Abstracts (May 2018), https://www.endocrine-abstracts.org/ea/0056/ea0056S30.3.
20. See, e.g., Lindsey Tanner, More U.S. Teens Identify as Transgender, USA Today (Feb. 5, 2018), https://www.usatoday.com/story/news/nation/2018/02/05/more-u-s-teens-identify-transgender-survey-finds/306357002/.
21. Michelle Telfer et al., Transgender Adolescents and Legal Reform: How Improved Access to Healthcare Was Achieved Through Medical, Legal, and Community Collaboration, J. Paediatrics & Child Health (2018).
22. Carly Guss, Daniel Shumer & Sabra L. Katz-Wise, Transgender and Gender Nonconforming Adolescent Care: Psychosocial and Medical Considerations, 27 Current Op. in Pediatrics 421 (2015).
23. Compare id. (“Estimates for the likelihood of gender dysphoria persisting from childhood into adulthood range from 2–27% depending on the study”), with Am. Psych. Ass’n, Guidelines for Psychological Practice with Transgender and Gender Nonconforming People, 70 Am. Psych. 832, 842 (2015) (critiquing methods used for determining high desistance, saying that “this research runs a strong risk of inflating estimates of the number of youth who do not persist with a TGNC identity.”).
24. See Daniel Greenberg et al., America’s Growing Support for Transgender Rights, PRRI (June 11, 2019), https://www.prri.org/research/americas-growing-support-for-transgender-rights/.
25. See Do Children and Teens with Serious Gender Dysphoria Ever Outgrow Gender Dysphoria? Yes, Gender Health Query, https://www.genderhq.org/trans-children-gender-dysphoria-desistance-gay (“Studies on youth and gender dysphoria show that some children outgrow dysphoria and that they are statistically much more likely to be [lesbian, gay, or bisexual] than the general population.”).
26. See, e.g., Dr. Debra Soh, The End of Gender 140 (Threshold Editions 2020). In chapter 5 of her book, Dr. Soh reflects on an interaction with a father who told her he had a transgender daughter, that is, a son who identified as female, and that the child had started puberty blockers. After the father explained the situation, Dr. Soh concluded, “it was very likely that he did not have a transgender daughter—he had a gay son.” Id.
27. See generally Julia C. Sorbara et al., Mental Health and Timing of Gender-Affirming Care, 146 Am. Acad. of Pediatrics (Oct. 1, 2020).
29. Tracy A. Becerra-Culqui et al., Mental Health of Transgender and Nonconforming Youth Compared with Their Peers, 141 Am. Acad. of Pediatrics e20173845, at 7 (May 2018) (“The results of this study reveal that among [transgender and nonconforming] youth, mental health conditions, specifically anxiety and depression, are common and often severe among adolescents, as evidenced by diagnoses associated with hospitalizations. Gender nonconforming children (3–9 years of age) have a higher prevalence of anxiety and attention deficit disorders compared with their cisgender counterparts. In nearly all instances, mental health diagnoses were more common in the [transgender and nonconforming] youth than in referent children and adolescents.”).
30. Sari L. Reiner et al., Mental Health of Transgender Youth in Care at an Adolescent Urban Community Health Center: A Matched Retrospective Cohort Study, 56 J. of Adolescent Health 274 (2015).
32. Id.; see also Brian C. Thoma, Suicidality Disparities Between Transgender and Cisgender Adolescents, 144 Pediatrics e20191183 (2019) (“Within [transgender adolescent] subgroups, transgender males and transgender females had higher odds of suicidal ideation and attempt than [cisgender adolescent] groups.”).
33. See Sorbara et al., supra note 27.
34. Compare Olson-Kennedy, infra note 35, with Simone Mahfouda et al., Puberty Suppression in Transgender Children and Adolescents, 5 Lancet Diabetes Endocrinol 816, 824 (May 22, 2017) (concluding that“there are still substantial knowledge gaps that warrant examination to inform best clinical practice” for medical intervention for transgender children).
35. Johanna Olson-Kennedy, Impact of Early Medical Treatment for Transgender Youth: Protocol for the Longitudinal, Observational Trans Youth Care Study, JMIR Rsch. Protocols (July 9, 2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6647755/.
37. Melissa Jenco, Study: Blocking Puberty in Transgender Teens Linked to Lower Likelihood of Suicidal Thoughts, AAP News (Jan. 23, 2020), https://www.aappublications.org/news/2020/01/23/pubertysuppression012320?utm_source=TrendMD&utm_medium=TrendMD&utm_campaign=AAPNews_TrendMD_0 (“Among 20,619 transgender adults, 17% reported wanting pubertal suppression. Of those, 2.5% received it, according to the study. Those getting the treatment were more likely to … have greater family support compared to those who wanted it but did not receive it. They also were less likely to have suicidal ideation.”).
38. Deborah Cohen & Hannah Barnes, Transgender Treatment: Puberty Blockers Study Under Investigation, BBC News (July 22, 2019), https://www.bbc.com/news/health-49036145 (discussing a recent study that reported that there was a “significant increase” in patients who deliberately attempted to “hurt or kill” themselves after a year of taking puberty blockers; the study’s methodology, including the lack of a control group, has been critiqued. The article cautions that “it is not possible to infer cause and effect” from the study.).
39. See Mahfouda et al., supra note 34, at 821 (acknowledging that patients who took puberty blockers saw a “significant decrease in bone accretion during puberty suppression”).
40. Christopher Richards et al., Use of Puberty Blockers for Gender Dysphoria: A Momentous Step in the Dark, 104 Archives of Disease in Childhood 611 (2019) (arguing that the use of puberty blockers “is likely to threaten the maturation of the adolescent mind” and “[t]here is evidence from animal models that pubertal hormones promote cognitive maturity”).
41. See Brendan S. Abel, Hormone Treatment of Children and Adolescents with Gender Dysphoria: An Ethical Analysis, LGBT Bioethics: Visibility, Disparities, & Dialogue S23 (2014).
43. See Standards of Care, supra note 14.
44. See generally id.
45. Pubertal Blockers for Transgender and Gender Diverse Youth, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/gender-dysphoria/in-depth/pubertal-blockers/art-20459075 (Feb. 19, 2022).
46. Jason Lambrese, Suppression of Puberty in Transgender Children, AMA J. of Ethics (Aug. 2010), https://journalofethics.ama-assn.org/article/suppression-puberty-transgender-children/2010-08.
49. Elizabeth Gore, Medical Treatment for Gender Dysphoria: A Review of Risks and Benefits, Aggie Transcript (Sept. 26, 2016), https://aggietranscript.ucdavis.edu/medical-treatment-for-gender-dysphoria-a-review-of-risks-and-benefits/. See also Marie-Amélie George, Exploring Identity, 55 Fam. L.Q. 1 (2021).
50. Gender Affirming Hormones, Nebraska Med., https://www.nebraskamed.com/transgender-care/cross-sex-hormones (last visited Dec. 11, 2020).
51. Timothy Cavanaugh, Cross-Sex Hormone Therapy, Nat’l LGBTQIA+ Health Educ. Ctr., Fenway Health (2015), https://fenwayhealth.org/wp-content/uploads/Gender-Affirming-Hormone-Therapy-Cavanaugh-2.pdf.
53. See Janella Hudson et al., Fertility Counseling for Transgender AYAs, 6 Clinical Prac. in Pediatric Psych. 84, 88 (2018).
54. Lisa Esposito, What Is Gender Affirming Surgery?, U.S. News & World Rep. (May 25, 2018, 10:31 AM), https://health.usnews.com/health-care/patient-advice/articles/2018-05-25/what-is-gender-affirming-surgery#:~:text=It%20describes%20a%20strong%20conflict,bodies%20and%20true%20inner%20selves.
59. See, e.g., Standards of Care, supra note 14, at 21.
60. See Abel, supra note 41 (“But until a youth reaches the age of majority, the medical decision-making process generally includes permission from parents or guardians and informed assent from the patient to the degree appropriate.”).
61. Id. at 25.
64. Laura L. Kimberly et al., Ethical Issues in Gender-Affirming Care for Youth, 142 Pediatrics e20181537, at 2 (2018) (“[B]ecause of its relative novelty and lack of research into practices and outcomes, gender-affirming care raises risks that have yet to be fully understood and evaluated.”).
66. See Hudson et al., supra note 53 (“Individuals aged 16 and younger may not have the ability to fully comprehend consequences or fully anticipate what they would desire as an actualized adult.”); but see Abel, supra note 41 (“For many adolescents, the eventual feeling of comfort within one’s body far outweighs the ‘harm’ of losing the ability to procreate. Others, however, may be devastated by the loss of fertility.”).
67. See generally Hudson et al., supra note 53.
68. At the time of writing this article, the Alabama law had not yet been enacted, nor had it been enjoined by the U.S. district court. Therefore, the arguments made in this article were made before the ruling by the U.S. district court to enjoin the law.
69. . Rick Rojas, Alabama’s Transgender Youth Can Use Medicine to Transition, Judge Rules, N.Y. Times (May 14, 2022), https://www.nytimes.com/2022/05/14/us/alabama-transgender-law.html.
71. . Eknes-Tucker v. Marshall, No. 2:22-cv-184-LCB, 2022 WL 1521889 (M.D. Ala. May 13, 2022).
72. Alabama Vulnerable Child Compassion and Protection Act, Act 2022-289 (S.B. 184), Reg. Sess. 2022 (Ala. 2022).
73. Ala. Code § 26-26-3(3).
74. Id. § 26-26-4(a).
76. Id. § 26-26-4(b); see also What’s Intersex?, Planned Parenthood, https://www.plannedparenthood.org/learn/gender-identity/sex-gender-identity/whats-intersex.
77. Ala. Code § 26-26-4(c).
78. Id. § 26-26-5.
80. See Eknes-Tucker v. Marshall, No. 2:22-cv-184-LCB, 2022 WL 1521889 (M.D. Ala. May 13, 2022).
81. This article was written before the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). Therefore, while Dobbs contemplated substantive due process in the context of abortion, this article does not take into account how the Dobbs decision may affect due process jurisprudence as a whole.
82. See Erwin Chemerinsky, Substantive Due Process, 15 Touro L. Rev. 1501, 1501 (1998).
83. U.S. Const. amend. XIV, § 1.
84. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (“There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.”).
85. Obergefell v. Hodges, 576 U.S. 644, 664 (2015).
86. See Troxel v. Granville, 530 U.S. 57, 66 (2000) (stating that there is a recognized “fundamental right of parents to make decisions concerning the care, custody, and control of their children”) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)).
87. See id.
88. See Prince v. Massachusetts, 321 U.S. 158 (1944) (upholding appellant’s conviction under a Massachusetts statute that prohibited children from distributing newspapers or periodicals for sale in public places; appellant argued that the statute infringed on her right to engage the child in street preaching, but the court ruled that the statute was constitutional because the state had a right to protect children from child labor and dangers of preaching on public roadways).
89. Reno v. Flores, 507 U.S. 292, 301–02 (1993) (“Respondents’ ‘substantive due process’ claim relies upon our line of cases which interprets the Fifth and Fourteenth Amendments’ guarantee of ‘due process of law’ to include a substantive component, which forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”).
90. See Parham v. J.R., 442 U.S. 584 (1979); but see Bellotti v. Baird, 443 U.S. 622 (1979) (providing a judicial opt-out for states requiring parental consent for abortions).
91. This is operating under the assumption that the parents meet the legal standard for fitness. See, e.g., Stanley v. Illinois, 405 U.S. 645 (1972) (holding an unwed father was entitled to a hearing to determine his fitness before the state revoked custody of his children).
92. It is important to emphasize that there are different considerations for each different stage of treatment. As acknowledged earlier in the article, few believe that minors should undergo transitional surgery before the age of 18; additionally, there are different considerations for undergoing puberty blockers and hormone therapies. See Standards of Care, supra note 14.
93. See generally Hudson et al., supra note 53.
97. See Rajan Bal, The Perils of “Parens Patriae,” Geo. J. on Poverty L. & Pol’y (Nov. 21, 2017), https://www.law.georgetown.edu/poverty-journal/blog/the-perils-of-parens-patriae/ (“It is conceptually uncontroversial that the government has an interest in protecting children from harm.”).
98. See, e.g., Standards of Care, supra note 14.
99. However, the medical community has recently found different ways to preserve fertility for those undergoing these treatments. See generally Paula Amato, Fertility Options for Transgender Persons, UCSF Transgender Care & Treatment Guidelines (June 17, 2016), https://transcare.ucsf.edu/guidelines/fertility.
100. See generally Hudson et al., supra note 53.
101. See, e.g., Standards of Care, supra note 14.
102. U.S. Const. amend. XIV, § 1.
103. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
104. Id. at 446–47.
105. See Calvin R. Massey & Brannon P. Denning, American Constitutional Law: Powers and Liberties 637 (Wolters Kluwer eds., 6th ed. 2019).
107. Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
109. Clark v. Jeter, 486 U.S. 456, 461 (1988).
111. See Friedman v. Rogers, 440 U.S. 1, 17 (1979) (“Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.”).
112. See, e.g., Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 608 (4th Cir. 2020) (joining the Seventh and Eleventh circuits in holding that “discrimination against transgender people constitute[s] sex-based discrimination for purposes of the Equal Protection Clause …”), cert. denied, 141 S. Ct. 2878 (2021).
113. While the Supreme Court hasn’t ruled on the applicable level of scrutiny for classifications based on sexual orientation or transgender status, it is likely the Court would lean toward intermediate scrutiny based on its recent holding that the prohibition on discrimination based on sex under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e2(a)(1), applies to discrimination based on sexual orientation or transgender status. See Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).
114. See, e.g., Grimm, 972 F.3d at 609 (“[T]he Board contends that all students are treated the same, regardless of sex, because the policy [restricting restroom use to a student’s biological sex] applies to everyone equally.”).
115. Ala. Code § 26-26-4.
116. See United States v. Virginia, 518 U.S. 515 (1996).