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Throwing Alabama’s children and physicians to the wolves

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Throwing Alabama’s children and physicians to the wolves

Aug 28, 2023 | 7:59 am ET
By Brian Lyman
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Throwing Alabama’s children and physicians to the wolves
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A transgender flag sits on the grass during the "Trans Youth Prom" outside of the U.S. Capitol building on May 22, 2023 in Washington, DC. (Anna Moneymaker/Getty Images)

Three federal judges exposed Alabama physicians to felony charges last week.

But U.S. Circuit Judge Barbara Lagoa wanted everyone to know it was complicated.

“This case revolves around an issue that is surely of the utmost importance to all of the parties involved: the safety and wellbeing of the children of Alabama,” Lagoa wrote in a 49-page majority opinion allowing Alabama to make it a crime to offer medical treatment to transgender youth under age 19. “But it is complicated by the fact that there is a strong disagreement between the parties over what is best for those children. Absent a constitutional mandate to the contrary, these types of issues are quintessentially the sort that our system of government reserves to legislative, not judicial, action.”

Truly a dilemma! Send doctors prescribing life-saving medications to their patients — doctors following their ethical and professional duties — to Alabama’s violent prisons for as long as 10 years? Or tell the Alabama Legislature it might be wrong?

It’s impossible to say whether this is sincere conviction or cynical posturing. Sure, there’s a “strong disagreement” here. But to continue to your conclusion, you have to assume both parties in the dispute acted in good faith. To do that, Lagoa; U.S. Circuit Judge Andrew Brasher and U.S. District Judge Jean-Paul Boulee decided that both sides in a May 2022 hearing on the law had experts they could rely on. 

The transgender youth and families challenging this attack on their existence did.

They called doctors and counselors with years of experience working with transgender youth, who talked at length about the counseling that youths go through. They described a spectrum of treatments available to those with gender dysphoria; some people may not need medical intervention. They explained the extra rounds of counseling and assessment that precede any medical intervention. And they said that the combination of medication and counseling vastly improves lives. 

“Prior to there being additional medical care for youth, mental health providers were just trying to keep kids alive until they became older to get access to medication,” said Linda Hawkins, the co-director of the Gender and Sexuality Development Clinic at Children’s Hospital of Philadelphia. “Now we’re seeing transgender children and youth to not only survive, but thrive.”

The state had witnesses like Dr. James Cantor, who acknowledged under cross-examination that he doesn’t work with transgender youth under age 16. But to the three judges, this was fine because Cantor cast doubt on the medication the plaintiffs’ witnesses worked with regularly.

You see, when it comes to transgender people, the panel wants the Alabama Legislature to operate without any moral or constitutional restraint. 

Not that they’re the only people on the federal bench aiming for this. In her ruling, Lagoa repeatedly cited Justice Samuel Alito’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. That case, as you know, struck down federal abortion protections and ostensibly left it to the states to decide abortion policy. (Which is why the anti-abortion rights movement is trying to sabotage state-level democracy, but I digress.) 

In demolishing nearly 50 years of precedent, Alito wrote that the 14th Amendment does not protect any right “not deeply rooted in the nation’s history and traditions.” 

Cut through the pieties about originalism and you’re left with this: Conservative jurists like Alito and Lagoa want to shut the federal courts to marginalized groups seeking shelter from state terror. 

This isn’t a new stance. When a group of Black Alabamians in 1903 accurately noted that Alabama’s 1901 Constitution, which took the vote from Blacks and poor whites, was an authoritarian attack on the 15th Amendment, Justice Oliver Wendell Holmes Jr. shrugged, told them the court was powerless and suggested going to Congress. The Congress that white elites had prevented Black Alabamians from selecting. 

The message from the U.S. Supreme Court was obvious. You are subject to the law. Not protected by it.

Which is what this federal court said to transgender Alabamians last week.

Into the den

But let’s say Lagoa truly believes the Legislature can work this out in a way that protects the well-being of transgender youth and the prerogatives of the Founding Fathers as they exist in the right-wing mind. 

How’s the Alabama Legislature doing on that front?

Start with a Republican supermajority that has drawn non-competitive voting maps and has a growing number of members furious at LGBTQ Alabamians occupying any public space

Add a transgender community in Alabama that, by one estimate, wouldn’t fill up the end zone of a college football stadium. You may see them as one of many unique groups of people in our state. Zealots see them as easy pickings. 

In 2021, the Legislature banned transgender youth from playing high school sports of the gender with which they align. Are there many examples of this? No. Do transgender women have any natural athletic advantage over cisgender women? The science is not at all clear on that, your uncle’s assertions on Facebook notwithstanding. Is it repellent to treat teenagers like this? You bet.

That same year, the Legislature approved a bill limiting bathroom use to a person’s biological sex. Rep. Scott Stadthagen, R-Hartselle, the bill’s sponsor, justified the legislation in part by citing an assault on a young student in Madison County in 2010. The attorney who represented the victim said the case had absolutely nothing to do with transgender individuals.

Both bills passed.

Transgender youth and their families spent long hours over two years explaining to lawmakers eager to hurt them that these treatments improved their physical and mental health and that taking them away would put them in danger. 

Legislators ignored them.

Because in their eyes, transgender Alabamians aren’t citizens. They’re opportunities — opportunities to punish people they don’t approve of, or opportunities to show other zealots they’ll do what they’re told. The pain and chaos these laws create don’t matter, as long as legislators can prove how tough they are attacking a community that wants to live in peace.

And Lagoa says this is where children should go to protect their very existence. 

This isn’t complicated. A reasonable person wouldn’t trust their children with the current Legislature any more than they would trust their kid with a wolf. 

But for Lagoa, the predators’ rights are paramount.