How did Alabama’s transgender medication ban survive? The Dobbs decision.

The U.S. Supreme Court’s decision to strike down federal abortion rights affects much more than reproductive health.

Exhibit A: the battle over Alabama’s ban on gender-affirming medical care.

Here’s some background. Gov. Kay Ivey signed the law, which prohibits the prescription of puberty blockers and hormones to transgender youth under the age of 19, in April 2022. U.S. District Judge Liles C. Burke blocked it the following month. The judge wrote that the statute burdened parents’ ability to make decisions for their children.

That, Burke continued, impinged on their due process rights under the 14th Amendment to the U.S. Constitution. The state hadn’t done enough to avoid violating that constitutional right.

Alabama appealed. Last year, a three-judge panel of the U.S. 11th Circuit Court of Appeals overruled Burke. U.S. Circuit Judge Barbara Lagoa ruled that Alabama hadn’t violated the 14th Amendment because, she wrote, access to transgender health care had no historical grounding in the law.

That reasoning comes straight from the case that ended federal abortion protections two years ago, Dobbs v. Jackson Women’s Health Organization. In that opinion, Justice Samuel Alito wrote that abortion was not a right “deeply rooted in the Nation’s history and tradition,” so the 14th Amendment didn’t apply.

By applying that logic to Alabama’s transgender law, Lagoa made it much easier for the statute to survive. All the state had to show was a “rational basis” for it — a much lower bar. The law could be merely “based on rational speculation” and didn’t have to be supported “by evidence or empirical data,” Lagoa wrote.

In other words: Alabama doesn’t have to prove anything negative about gender-affirming medication. The state doesn’t even have to provide a reason for what it’s doing; a court can do so.

And really, this is the only way Alabama could have won the case.

During Burke’s May 2022 hearing on the law, which I covered for the Montgomery Advertiser, transgender families and their attorneys put physicians on the stand and people who work with transgender children. They described multiple rounds of consultation. The meetings with parents. The positive effects of the treatments.

The state had Dr. James Cantor, who does not treat gender dysphoria and acknowledged on the stand that he doesn’t work with transgender youth. It had Sydney Wright, who took hormones at age 19, and not under professional standards or in the state of Alabama.

Burke did not find their testimony persuasive.

But by lowering the review standard, Lagoa could ignore the plausibility gap. First, she seized on a statement from Burke acknowledging the drugs contained some risks, such as loss of fertility or sexual function.

Almost all medical treatments carry risks. Chemotherapy can lead to fertility loss. The question is whether the good outweighs the bad.

She also wrote that some European countries had restricted access to the drugs. And they had, though none had employed anything like Alabama’s sweeping restrictions. But for Lagoa, that was enough.

“There is at least rational speculation that some families will not fully appreciate those risks and that some minors experiencing gender dysphoria ultimately will desist and identify with their biological sex,” she wrote.

Lagoa continued the argument in a long concurrence to an 11th Circuit opinion last month upholding her ruling. She tried to answer colleagues who questioned her interpretation of the law. She hauled in the Cass Report, a survey of gender-affirming care in the United Kingdom whose methods have been sharply criticized. She even brought in arguments that were never in front of the district court or her panel.

“Although the district court disagreed with that evidence, it acknowledged that Alabama ‘offer[ed] some evidence that transitioning medications pose certain risks,’” she wrote. “That is sufficient to satisfy the rational-basis test. The Alabama Legislature is entitled to look at the competing evidence and draw its own conclusions.”

Perhaps. But there was a major difference in the quality of the evidence presented. On the one side, you have testimonies from medical professionals who work with transgender youth. On the other, you have speculation and irrelevant examples.

Didn’t matter. Dobbs allowed the court to give real-world experience the same legal weight as speculative paranoia.

And that’s a major problem.

If one of our state reps convinces his colleagues to end mandatory vaccinations because he’s been listening to Robert F. Kennedy Jr., can Alabama justify that by calling that nonsense “rational speculation” and claiming there’s no historical basis for vaccination?

If an Alabama official says he has “rational speculation” that women seeking out-of-state abortions need to be locked up in the state’s violent prisons, is just saying so enough for our judiciary?

Or if Alabama decides to shut down its public schools (there is no right to public education in the state constitution), could a state official announce that he’s speculated, rationally, that public education leads to woke minds?

Dobbs opens up a world where lawmakers are free to create laws with no basis in reality, laws that indulge their worst instincts and do real harm to people living here. Like transgender youth.  And women. And anyone who can contract a disease.

And if our judiciary lets them pursue those fantasies, we’re all in trouble.