Who Decides? State Bans on Gender-Affirming Care for Minors in Tension with Parental Rights and Equal Protection Under the Law

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DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author(s).

Notes

1 See generally Elana Redfield et al., Prohibiting Gender-Affirming Medical Care for Youth (Williams Inst., Mar. 2023) (identifying which states have either enacted bans on gender-affirming care or are considering proposed legislation that would do so); see also 2023 Anti-Trans Legislation, Track Trans Legis., https://www.tracktranslegislation.com/(last visited Feb. 1, 2024) (up-to-date tracking of states proposing and enacting these laws and the text of the various laws).

2 See Redfield, supra note 1.

3 Tess Vrbin, Arkansas Ban on Gender-Affirming Care for Transgender Youth Awaits Court Ruling, The Ark. Advoc. (Dec. 1, 2022, 3:46 P.M.), https://arkansasadvocate.com/2022/12/01/arkansas-ban-on-gender-affirming-care-for-transgender-youth-awaits-court-ruling/.

4 Brandt ex rel. Brandt v. Rutledge, 47 F.4th 661, 672 (8th Cir. 2022).

5 See Ecknes-Turner v. Marshall, 603 F. Supp. 3d 1131, 1151 (M.D. Ala. 2022) (issuing preliminary injunction regarding Alabama’s statutory gender-affirming care ban).

6 Id. at 1143; see also Section II infra.

7 See Section II infra.

8 A recent example of the role that even the potential of a pretrial injunction can play in influencing federal regulation is the dispute over the “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority” rule proposed by the Trump administration. 84 Fed. Reg. 23, 170 (May 21, 2019) (codified at 45 C.F.R. pt. 88). That rule would have allowed individuals or entities, under 30 different statutory provisions, a right to refuse to participate in medical procedures, programs, services, or research activities on account of their religious or moral objection. See id. Under the threat of a preliminary injunctions, the Department of Health and Human Services postponed the effective date of the rule. Ultimately, a federal court struck down the rule in its entirety before the new effective date. Planned Parenthood of Am. v. Azar, No. 1:19-cv-04676 (S.D.N.Y. Nov. 6, 2019).

9 See Section III infra.

10 The federal district court in Ecknes-Turner found that “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.” See Ecknes-Turner, 603 F. Supp. 3d at 1145.

11 The name of the hypothetical act evokes the “Save Adolescents from Experimentation” Act, which was first enacted in Arkansas. H.B. 1570, 93d Gen. Assemb., Reg. Sess. (Ark. 2021). The same title has since been used in proposed legislation in other states. See, e.g., H.B. 68, 135th Gen. Assemb., Reg. Sess. (Ohio 2023).

12 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Nken v. Holder, 556 U.S. 418, 434 (2009) (reasoning that showing a “better than negligible” chance of success is insufficient).

13 Winter, 555 U.S. at 22.

14 Id.

15 8 U.S.C. § 1252(f)(2) (2005).

16 Nken v. Holder, 556 U.S. 418, 434 (2009).

17 Id.

18 Id. at 434-35 (internal quotations omitted).

19 See Christian Louboutin S.A. v. Yves Saint Laurent Am. Holdings, Inc., 696 F.3d 206, 215 (2d Cir. 2012); S. Glazer’s Distribs. of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 849 (6th Cir. 2017) (cautioning that the four elements to consider in a preliminary injunction are “factors to be balanced, not prerequisites to be met”); Mays v. Dart, 974 F.3d 810, 818 (7th Cir. 2020), cert. denied, 142 S. Ct. 69 (2021) (setting out that “the more likely the plaintiff is to win on the merits, the less the balance of harms needs to weigh in his favor, and vice versa”) (internal citation omitted); All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (affirming that after Winter, the court continues to find the plaintiff’s showing sufficient if “serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff’s favor”); see also Revel AC, Inc. v. IDEA Boardwalk LLC, 802 F.3d 558, 569-71 (3d Cir. 2015) (applying a sliding scale test for a stay pending appeal subsequent to Winter). Under the sliding scale approach, it is sufficient for a plaintiff to show there are sufficiently serious questions regarding the merits as to make “a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Christian Louboutin S.A., 696 F.3d at 215.

20 See, e.g., Am. C.L. Union v. Clapper, 785 F.3d 787, 825 (2d Cir. 2015) (reiterating that plaintiffs may meet first element for injunctive relief by showing “sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief” (quoting Christian Louboutin S.A., 696 F.3d at 215)).

21 S. Glazer’s Distribs. of Ohio, LLC, 860 F.3d at 849-50 (quoting Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007) for rule that plaintiffs should not be required to proves their case in full at the preliminary injunction stage).

22 Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010).

23 Id.

24 Citigroup Glob. Mkts., Inc., 598 F.3d at 35.

25 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

26 In re: Revel AC, Inc., 802 F.3d 558, 569 (3d Cir. 2015) (applying standards for injunctive relief to similar issue of whether to grant a request for a stay of bankruptcy proceedings); see also Reilly v. City of Harrisburg, 858 F.3d 173, 177, 179 (3d Cir. 2017), as amended (June 26, 2017) (concluding Winter “did not overrule [the court’s] balancing-of-the-factors standard, which requires a showing significantly better than negligible but not necessarily more likely than not”).

27 Winter, 555 U.S. 7, 51 (2008) (Ginsberg, J., concurring) (reasoning “[t]his Court has never rejected that formulation, and I do not believe it does so today”). The Second Circuit has reasoned that “[i]f the Supreme Court had meant for [its recent cases] to abrogate the more flexible standard for a preliminary injunction, one would expect some reference to the considerable history of the flexible standards applied in this circuit, seven of our sister circuits, and in the Supreme Court itself.” Citigroup Glob. Mkts., Inc., 598 F.3d at 38.

28 See Real Truth about Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 347 (4th Cir. 2009), cert. granted, judgment vacated, 559 U.S. 1089 (2010), and adhered to in part sub nom. The Real Truth about Obama, Inc. v. Fed. Election Comm’n., 607 F.3d 355 (4th Cir. 2010) (interpreting Winter to reject a balance-of-hardship test).

29 Id. at 346-47.

30 Dine Citizens against Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1282 (10th Cir. 2016) (finding that the district court did not abuse its discretion when it refused to apply the “serious questions” standard to the likelihood of success element in a case involving deferential judicial review of a governmental agency’s determination).

31 See id. at 1282 (concluding that the circuit’s “modified test is inconsistent with” Winter); Changji Esquel Textile Co. Ltd. v. Raimondo, 40 F.4th 716, 726 (D.C. Cir. 2022) (describing the sliding scale approach as “arguably in tension with intervening Supreme Court decisions … [and the court has] noted this tension but reserved the question whether the sliding-scale approach remains valid”); Def. Distributed v. U.S. Dep’t of State, 838 F.3d 451, 458 (5th Cir. 2016) (cautioning that “a preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has ‘clearly carried the burden of persuasion’ on all four requirements” (internal quotation omitted).

32 Snook v. Tr. Co. of Ga. Bank of Savannah, 909 F.2d 480, 483 n.3 (11th Cir. 1990) (indicating that “the alternative [sliding-scale] test has not been recognized in the Eleventh Circuit or Georgia state courts”); see also N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1226 (11th Cir. 2008) (determining prior to Winter that “when a plaintiff brings multiple claims, a reviewing court must consider the plaintiff’s likelihood of success on each claim”); Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of Health & Hum. Servs., 724 F.3d 377, 395 n.7 (3d Cir. 2013), rev’d and remanded sub nom. on other grounds, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (identifying the Eleventh Circuit as the “[o]nly one circuit [that] appears to have rejected a balancing approach outright”).

33 Nken v. Holder, 556 U.S. 418, 434 (2009).

34 See Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534-35 (1925) (finding it “entirely plain” that a law requiring that parents send their children to public schools “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control”) (citing Meyer v. Nebraska, 262 U.S. 390 (1923); see also Troxel v. Granville, 530 U.S. 57, 65(2000) (describing parents’ rights to direct the care, custody, and control of their children as “perhaps the oldest of the fundamental liberty interests recognized by this Court”). Although the Court described parental right as “fundamental,” which would generally subject state laws infringing on the right to strict scrutiny, in Troxel it is not clear what exact level of scrutiny the plurality decision applied. See Leebaert v. Harrington, 332 F.3d 134, 140, 142 (2d Cir. 2003) (noting that although government infringement on a fundamental right is subject to strict scrutiny, in Troxel the plurality decision “left the scope of that right undefined”).

35 Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 273 (1996) (stating that “[sex-based classifications must bear a close and substantial relationship to important governmental objectives”).

36 Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1871 (2021) (“A government policy can survive strict scrutiny only if it advances compelling interests and is narrowly tailored to achieve those interests.”).

37 Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (describing the parents’ care, custody, and control rights as “one of “the oldest fundamental liberty interests” recognized by the Supreme Court).

38 See Parham v. J.R., 442 U.S. 584, 604 (1979).

39 Parham, 442 U.S. at 603.

40 Troxel, 530 U.S. at 68 (citing and quoting Parham).

41 Prince v. Massachusetts, 321 U.S. 158, 166 (1944). The Court has also stated that state’s interest in “safeguarding the physical and psychological well-being of a minor is a compelling one.” Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty., 457 U.S. 596, 607 (1982).

42 Prince, 321 U.S. at 167.

43 See Gonzales v. Carhart, 550 U.S. 124, 163 (2007) (“The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”); see also Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 27, 36 (1905) (upholding state small pox vaccination mandate that “in the opinion of the board of health, … was necessary for the public health or the public safety”).

44 See, e.g., S.B. 184, Reg. Sess. § 2(11) (Ala. 2022) (asserting there are “numerous harmful effects for minors, as well as risks of effects simply unknown due to the new and experimental nature of these interventions”).

45 The Supreme Court has instead indicated that “[t]he mere novelty of … a claim is reason enough to doubt that ‘substantive due process’ sustains it; the alleged right certainly cannot be considered so rooted in the traditions and conscience of people as to be ranked as fundamental.” Reno v. Flores, 507 U.S. 292, 303 (1993) (holding that a child does not have a constitutional right to refuse to be placed in a decent and humane temporary custodial institution if no legal guardian will assume custody).

46 Abigail All. for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 711 (D.C. Cir. 2007) (en banc).

47 Id. at 697.

48 Margaret Ryznar, A Curious Parental Right, 71 SMU L. Rev. 127, 128 (2018).

49 Id. at 128-29.

50 See Troxel v. Granville, 530 U.S. 57, 68-69 (2000) (reasoning that because “there is a presumption that fit parents act in the best interests of their children,” the trial court erred when “it gave no special weight at all to [the parent’s] determination of her daughters’ best interests”). The Court had previously stated that harm was required. See Wisconsin v. Yoder, 406 U.S. 205 (1972) (finding “the state’s power to interfere in the parent–child relationship is subject to a finding of harm to the child”).

51 See Gonzales v. Carhart, 550 U.S. 124, 163 (“The medical uncertainty over whether the Act’s prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden.”). Carhart also rejected, however, the notion that courts should give uncritical deference to legislative findings. Id. at 165 (noting “[t]he Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake”).

52 The abortion cases permitted states to regulate based on “respect for human life at all stages in the pregnancy.” See Carhart, 550 U.S. at 163. The cases the Court cited in Carhart to support legislative deference, however, were not limited to abortion. See, e.g., Marshall v. United States, 414 U.S. 417, 425 (1974) (reasoning in challenge to statute disqualifying multiple offenders from rehabilitative treatment for narcotics addiction that “[w]hen Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad”); see also Carhart, 550 U.S. at 163 (collecting Marshall, among other cases).

53 Brandt ex rel. Brandt v. Rutledge, 47 F.4th 661, 672 (8th Cir. 2022) (“Because we conclude the district court did not abuse its discretion in granting a preliminary injunction based on Plaintiffs’ equal protection claim, we need not address the State’s challenges to Plaintiffs’ other claims.”).

54 Ecknes-Tucker v. Marshall, 603 F. Supp. 3d 1131, 1145 (M.D. Ala. 2022).

55 Id. at 1146.

56 See United States v. Virginia, 518 U.S. 515, 555 (1996) (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994)).

57 Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (internal quotations omitted).

58 See Nicole Scott, Trans Rights Are Human Rights: Protecting Trans Minors’ Right to Gender-Affirming Care, 14 Drexel L. Rev. 685, 731-35 (2022) (outlining argument that bans on gender-affirming care for minors are grounded in animus toward a particular group, which the Supreme Court has found lacks a legitimate purpose even under rational basis review).

59 See, e.g., Defs.’ Resp. in Opp’n to Pls.’ Mot. for Prelim. Inj. at 78, Ecknes-Tucker v. Marshall, 603 F. Supp. 3d 1131(2022) (No. 2:22-cv-00184) (asserting there is no discrimination based on sex because “the Act protects against certain experimental procedures, regardless of who is subjected to them”); Br. in Supp. of Mot. to Dismiss at 20, Brandt v. Rutledge, 551 F. Supp. 3d 882 (2021) (No. 4:21-cv-00450) (“If the SAFE Act classifies at all, it does so on the basis of age.”).

60 See Defs.’ Resp. in Opp’n to Pls.’ Mot. for Prelim. Inj. at 78, Ecknes-Tucker v. Marshall, 603 F. Supp. 3d 1131 at 75 (2022) (No. 2:22-cv-00184). Alabama cited the Supreme Court’s decision in two cases in which it found that neither excluding pregnancy from insurance coverage nor regulation of a particular procedure used in abortions were sex-based classifications. See Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974) (characterizing the state ascreating two classes, pregnant and non-pregnant individuals, some of the latter group also being female); Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 273 (1993) (characterizing the classification as “not womanhood, but the seeking of abortion”).

61 See Brandt ex rel. Brandt v. Rutledge, 47 F.4th 661, 669 (8th Cir. 2022). The court explained that “[t]he district court also concluded that heightened scrutiny was appropriate because the Act facially discriminates against transgender people, who constitute a quasi-suspect class. We discern no clear error in the district court’s factual findings underlying this legal conclusion, but we need not rely on it to apply heightened scrutiny because the Act also discriminates on the basis of sex.” Id. at 670 n.4.

62 Id.

63 See id. The statute we created for the competition problem, the “SAME Act,” is modeled on state statutes that prohibit treatments that change biological sex. It defines “sex” as “the biological state of being male or female” and prohibiting treatments performed “for the purpose of … creating physiological or anatomical characteristics that resemble a sex different from an individual’s biological sex.”

64 Id. at 669-70.

65 Id. at 670. The Eleventh Circuit en banc has agreed with the basic notion that policies that discriminate based on biological sex classify on the basis of sex. See Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 803 (11th Cir. 2020) (en banc) (concluding that “because the policy that [the student] challenges classifies on the basis of biological sex, it is subject to intermediate scrutiny”). The Eleventh Circuit further concluded in that case, however, that the school met intermediate scrutiny. See id. (concluding that “the policy advances the important governmental objective of protecting students’ privacy in school bathrooms and does so in a manner substantially related to that objective”).

66 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741 (2020).

67 Ecknes-Tucker v. Marshall, 603 F. Supp. 3d 1131, 1147 (M.D. Ala. 2022).

68 Bostock, 140 S. Ct. at1741.

69 S.B. 184, Reg. Sess.§ 4(a) (Ala. 2022).

70 Ecknes-Tucker v. Marshall, 603 F. Supp. 3d 1131, 1147 (2022).

71 See Defs.’ Resp. in Opp’n to Pls.’ Mot. for Prelim. Inj. at 80, Ecknes-Tucker v. Marshall, 603 F. Supp. 3d 1131 at 75 (2022) (No. 2:22-cv-00184).

72 Bostock, 140 S. Ct. at 1753. The majority emphasized that the Court was deciding only that “[f]iring employees because of a statutorily protected trait surely counts” as sex discrimination under that statute. See id. The dissenting justices saw it differently, suggesting that the majority’s decision went far beyond the Court’s prior holdings. See id. at 1833 (Kavanaugh, J., dissenting) (asserting that “all of the Court’s cases from Bowers to Romer to Lawrence to Windsor to Obergefell would have been far easier to analyze and decide if sexual orientation discrimination were just a form of sex discrimination”); id. at 1783 (Alito, J., dissenting) (expressing concern that the Court’s decision would “exert a gravitational pull in constitutional cases [that would] equat[e] discrimination because of sexual orientation or gender identity with discrimination because of sex”).

73 See Kadel v. Folwell, No. 1:19CV272, 2022 WL 17415050, at *2 (M.D.N.C. Dec. 5, 2022) (concluding that Bostock’s “analysis applies with equal force” to the plaintiff’s claim of sex discrimination in violation of § 1557 of the Affordable Care Act); Doe v. Snyder, 28 F.4th 103, 114 (9th Cir. 2022) (prohibiting discrimination in health care based on certain characteristics, including an individual’s sex under Section 1557 of the Affordable Care Act).

74 Kadel, No. 1:19CV272, 2022 WL 3226731, at *19 (finding a plan that excluded “[t]reatment or studies leading to or in connection with sex changes or modifications and related care” discriminated on its face for purposes of Equal Protection law, based on Bostock’s reasoning).

75 See Erik Fredericksen, Protecting Transgender Youth after Bostock: Sex Classification, Sex Stereotypes, and the Future of Equal Protection, 132 Yale L.J. 1149, 1152 (2023) (suggesting that although Justice Gorsuch framed his Bostock analysis as textualist, which might arguably be limited to statutes with similar language, “in fact … [t]he [opinion’s] formalistic reasoning logically means that any state action distinguishing on the basis of sexual orientation or gender identity distinguishes on the basis of sex and thus requires intermediate scrutiny”).

76 The Fourth Circuit has relied on both theories. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 608, 610 (4th Cir. 2022) (quoting with approval the district court’s conclusion that “Grimm was subjected to sex discrimination because he was viewed as failing to conform to the sex stereotype propagated by the [school’s bathroom p]olicy” and, “alternatively,” concluding that “heightened scrutiny applies because transgender people constitute at least a quasi-suspect class”) (quoting Grimm, 302 F. Supp. 3d at 750). As the Fourth Circuit noted, several courts had applied the stereotyping theory in cases involving discrimination against transgender individuals prior to the Bostock decision. See id. at 608-9 (collecting cases). Like the Eighth Circuit, the Eleventh Circuit sidestepped the issue by finding that a school bathroom use policy discriminated based on biological sex, while expressing “grave doubt that transgender persons constitute a quasi-suspect classification.” Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 803, 803 n.5 (11th Cir. 2022) (en banc) (internal quotation omitted).

77 United States v. Virginia, 518 U.S. 515, 531 (1996).

78 See, e.g., H.B. 1570, 93d Gen. Assemb., Reg. Sess. §1(11), (Ark. 2021) (“It is of grave concern to the General Assembly that the medical community is allowing individuals who experience distress at identifying with their biological sex to be subjects of irreversible and drastic nongenital gender reassignment surgery and irreversible, permanently sterilizing genital gender reassignment surgery, despite the lack of studies showing that the benefits of such extreme interventions outweigh the risks[.]”); S.B. 184, Reg. Sess.§ 1(11) (Ala. 2022) finding that the “unproven, poorly studied series of interventions [has] result[ed] in numerous harmful effects for minors, as well as risks of effects simply unknown due to the new and experimental nature of these interventions”).

79 See supra note 11.

80 Brandt ex rel. Brandt v. Rutledge, 47 F.4th 661, 670-71 (8th Cir. 2022).

81 Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 926 (6th Cir. 2020) (concluding the district court correctly refused to defer to a state’s medical regulation when “every serious medical or public health organization to have considered the issue has said the opposite”).

82 See supra note 8 and accompanying text; see also E. Coleman et al., Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, 23 Int’l J. Transgender Health S-1, S-43 (2022) (articulating in most recently updated guidelines that “[a]dditional eligibility criteria for gender-related medical care included a persistent, long (childhood) history of gender ‘non-conformity’/dysphoria, emerging or intensifying at the onset of puberty.”).

83 See Miss. Univ. for Women, 458 U.S. at 730 (concluding Mississippi’s policy of limiting nursing school admission to women was not substantially related to its object to compensate for discriminatory barriers suffered by women because men were allowed to audit the classes).

84 See id. at 726; see also Stanton v. Stanton, 421 U.S. 7, 12-13 (1975) (reasoning that once traditional assumptions about gender-based classifications were abandoned, there was no basis for a state statute to specify a greater age of majority for males than for females).

85 See Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017), abrogated by N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022) (describing intermediate scrutiny as “less onerous” and requiring only a “reasonable, not perfect” fit (citations omitted)).

86 See Mem. in Supp. of Pls.’ Mot. for TRO & Prelim. Inj. at 33, Ecknes-Tucker v. Marshall, 603 F. Supp. 3d 1131 (2022) (No. 2:22-cv-00184) (“To the extent there are low-level risks, as there are with any medication, Alabama can offer no justification why puberty blocking medication and hormone therapy should be banned for use by transgender minors as ‘unsafe’ but permitted for treatment of minors with other medical conditions.”).

87 See, e.g., Defs.’ Resp. in Opp. to Pls.’ Mot. for Prelim. Inj. at 101, Ecknes-Tucker v. Marshall, 603 F. Supp. 3d 1131 (2022) (No. 2:22-cv-00184) (internal citations omitted).

88 Ecknes-Tucker v. Marshall, 603 F. Supp. 3d 1131, 1148 (2022).

89 Brandt ex rel. Brandt v. Rutledge, 47 F.4th 661, 671 (8th Cir. 2022).

90 Plyler v. Doe, 457 U.S. 202, 206 (1982) (applying heightened rational basis review to a state law that excluded migrant children who were not lawfully in the United States from enrolling in public schools in that state).

91 Romer v. Evans, 517 U.S. 620, 632 (1996) (finding Colorado’s Amendment 2 failed rational basis review because it “prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect” homosexual individuals, which by “its sheer breadth [was] so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests”).

92 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 450 (1985) (finding that city’s refusal to issue a permit to a group home failed rational basis review because it appeared “to rest on an irrational prejudice against [individuals with intellectual disabilities]”).

93 Romer, 517 U.S. at 631 (characterizing the Colorado law as “impos[ing] a special disability upon [homosexual] persons alone”).

94 Cleburne, 473 U.S. at 448 (reasoning that “the City may not avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the body politic [because [p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect” (quoting Palmore v. Sidoti, 466 U.S. 429, 433 (1984)).

95 U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (reasoning that laws enacted for “bare [legislative] desire to harm a politically unpopular group” fail even rational basis review).

96 See S.B. 184, Reg. Sess. § 1(2) (Ala. 2022) (“Some individuals, including minors, may experience discordance between their sex and their internal sense of identity, and individuals who experience severe psychological distress as a result of this discordance may be diagnosed with gender dysphoria.”); see also Outlawing Trans Youth: State Legislatures and the Battle over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163, 2182 (2021) (suggesting that “when state governments profess that bans on gender-affirming medical treatments are meant to protect children from invasive and life-changing medical procedures, but only ban procedures that are performed for the purpose of affirming a trans youth’s gender identity, the arbitrariness of the classification suggests the stated interests are pretext for animus”).

97 S.B. 184, Reg. Sess. § 1(6) (Ala. 2022) (“Some in the medical community are aggressively pushing for interventions on minors that medically alter the child’s hormonal balance and remove healthy external and internal sex organs when the child expresses a desire to appear as a sex different from his or her own.”).

98 Scott, supra note 58, at 732-34 (describing comments by legislators and others who assisted in drafting the Alabama statute).

99 See, e.g., Defs.’ Resp. in Opp’n to Pls.’ Mot. for Prelim. Inj. at 100-102, Ecknes-Tucker v. Marshall, 603 F. Supp. 3d 1131 (2022) (No. 2:22-cv-00184).

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Notes on contributors

Cheryl L. Anderson

*Cheryl L. Anderson is Professor of Law, Director of Moot Court Programs, Southern Illinois University School of Law. E-mail: [email protected]. I would like to thank SIU Law students Reyna Herrera and Caitlynne Dixon for their work on the problem and bench brief that were the foundation for this article.