In a sharply divided vote with multiple dissents, a bare majority of the court declined to review the 2023 panel opinion holding that Alabama’s ban neither discriminates against transgender people nor violates the fundamental right of parents to make medical decisions for their children. The 2023 panel opinion reversed a federal district court opinion granting the plaintiffs a preliminary injunction blocking enforcement of the law.

In dissent, Judge Rosenbaum wrote:

“[T]he panel opinion is dangerous and wrong. Make no mistake: while the panel opinion continues in force, no modern medical treatment is safe from a state’s misguided decision to outlaw it almost regardless of the state’s reason. Worse still, if a state bans a post-1868 treatment, no patient has legal recourse to provide their child with that necessary, life-saving medical care in this Circuit. And if an individual can’t access medical treatment because of their sex or transgender status, they are similarly without recourse.”

Also dissenting, Judge Jordan wrote:

“The panel’s decision necessarily means that the fundamental right of parents to obtain medical treatment for their children extends only to procedures and medications that existed in 1868, and not to modern advances like the polio vaccine (developed in the 1950s), cardiac surgery (first performed in 1983), organ transplants (first successfully completed in 1954), and treatments for cancer like radiation (first used in 1899) and chemotherapy (which started in the 1940s).”

Judges Wilson and Jill Pryor also dissented from the denial of rehearing.

The plaintiffs’ case seeking a permanent injunction blocking the law is still pending before the district court. Earlier this year, the United States Supreme Court agreed to hear a case challenging a similar law from Tennessee, which also bans medical care for transgender adolescents. That case will be heard later this year, and a decision is expected in 2025.

Statement from counsel representing the plaintiff parents and youth challenging Alabama’s law:

“We are disappointed by the decision, but encouraged that nearly half the court dissented from the denial of rehearing. We are also encouraged by the strong dissenting opinions, which are consistent with the view of most judges who have ruled in similar cases across the country. As the dissenting judges point out, the panel’s decision is not only wrong, but dangerous. Families, not the government, should make medical decisions for children. The evidence presented in the case overwhelmingly showed that the banned treatments provide enormous benefits to the adolescents who need them, and that parents are making responsible decisions for their own children. We will continue to challenge this harmful measure and to advocate for these young people and their parents. Laws like this have no place in a free country.”