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Judge skewers DOJ lawyer over transgender military ban

homesafetytechpros — Wed, 23 Apr 2025 01:29:32 +0000

President Donald Trump at a press conference at the White House in Washington on February 27, 2025 (Yuri Gripas/Abaca/Sipa USA; via AP Images)

In what might seem like a weeks-removed bout of deja vu, a lawyer representing the Trump administration was harshly quizzed — and seemingly hardly believed — by a judge on Tuesday during oral arguments over the Pentagon’s planned transgender ban on service members.

During the hearing, Circuit Judge Cornelia T.L. Pillard, a Barack Obama appointee, was obviously and audibly askance of arguments advanced by U.S. Department of Justice attorney Jason Manion.

“How can you say that?” the judge asked the DOJ attorney at the outset — scorn apparent — taking issue with the government’s perspective out of the gate.

Manion, for his part, is no stranger to judicial dressing-downs.

On Jan. 28, Nicolas Talbott and several others filed their complaint with the U.S. District Court for the District of Columbia. The lawsuit alleges the ban on transgender service members violates the Due Process clause of the Fifth Amendment by discriminating against people “based on their sex” and “their transgender status.”

On March 12, U.S. District Judge Ana C. Reyes, a Joe Biden appointee, mercilessly lambasted Manion and other DOJ counsel for what she saw as problems with their basic competence, middling legal analysis, lack of preparation, intellectual honesty, and more.

On March 19, Reyes issued a scathing order granting a preliminary injunction halting the policy. She said the ban was “soaked in animus and dripping with pretext” and found it unconstitutionally violated equal protection laws by discriminating based on sex and status.

On Tuesday, the government aimed to overturn the district court’s ruling by beginning with an argument that Reyes had, quite simply, far overstated what the Pentagon’s planned-but-paused policy would do.

“This policy, like the policies that every other administration in the last 10 years or so has done, focused on a medical condition and related medical treatments, focused on gender dysphoria and it focused on medical treatments related to that condition,” Manion said. “It was just clearly erroneous for the district court to treat this policy as being a broader policy than it was.”

The outspoken judge rejected that characterization.

“How can you say that? Pillard asked. “When somebody who has no medical condition — somebody who has never been diagnosed with gender dysphoria but who has transitioned and who lives in a sex other than their birth sex — is explicitly banned by the policy? It’s clearly banning all transgender persons.”

The DOJ attorney again pushed back.

“Each of the policies that existed before — and this policy as well — allow people who identify as something other than their sex to serve in their sex,” Manion told the court.

For a while, the judge and the lawyer sparred over definitions used by experts cited by both the government and the transgender service member plaintiffs — about who qualifies as transgender, and what transitioning might mean, in terms of the proposed ban.

Eventually, the judge appeared weary of the definitional battle and sought to paraphrase what she viewed as the DOJ’s position.

“Your argument that this is not a ban on transgender service is that you can serve as a transgender person as long as you don’t serve as a transgender person,” Pillard said, pressing Manion on the point.

“I certainly wouldn’t put it that way,” the attorney said.

The government’s lawyer went on to say the policy “targets a subset” of transgender individuals — specifically those who are diagnosed with gender dysphoria. This diagnosis, Manion ventured, comes with “significant clinical distress” and “impairment of functioning” in “important areas.”

Two other judges on the three-judge panel in the D.C. Circuit, Gregory G. Katsas and Neomi Rao, largely kept their thoughts to themselves and did not ask nearly as many questions as Pillard.

Katsas, however, did interject when Manion brought up an argument about the standard of review. The attorney said the equation for the appellate court was not a typical question about transgender rights because the military is involved, which places the issue as more of a question about executive power than the constitutional rights of a group.

Rao quickly followed up to steer the DOJ attorney toward why the appellate court might be able to reject the lower court’s findings of fact that the policy is motivated by animus.

“Even if you are required to defer to the factual view that there was some animus motivating this decision, I don’t think it resolves the legal question of whether you can shortcut the deference that would normally apply to this decision.” Manion essayed.

The woman chosen by President Donald Trump to fill the seat vacated by Justice Brett Kavanaugh seemed a bit surprised by this answer.

“Are you conceding that there was animus?” Rao answered.

The government lawyer answered in the negative.

“It’s certainly clear error to find that the policy can’t be explained by any reason other than animus,” Manion went on. “The relevant question is whether the policy can be explained by any reason other than animus.”

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The DOJ lawyer reiterated previous in-court and motions arguments that the 2018 U.S. Supreme Court case of Trump v. Hawaii is controlling.

In that case, the nation’s highest court discounted concerns about anti-Muslim or anti-Islam bias when upholding the constitutionality of the first Trump administration’s travel ban, which almost entirely targeted Muslim-majority countries. Despite Trump calling the policy a “Muslim ban” during his 2016 presidential campaign, the majority looked to, and credited, the text of the policy itself instead of Trump’s verbiage.

On Tuesday, Pillard refused to countenance the comparison, noting that the high court also credited the travel ban for covering a tiny amount of the global Muslim population and for being enacted based on “careful study” from counterterrorism experts.

“Here we have something altogether different,” the judge said. “We have a sitting president issuing an executive order that has animus on its face, not directing anyone, any panel of experts, to study this issue, but simply directing the Secretary of Defense to implement a ban on transgender — on service by transgender persons,” Pillard said. “And within a month, the Secretary of Defense doing so with no further study.”

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Judge bars Trump executive order on transgender medical care

homesafetytechpros — Sat, 15 Feb 2025 02:38:07 +0000

US President Donald Trump arrives before signing the Laken Riley Act into law in the East Room at the White House in Washington on January 29, 2025. The law, named after a Georgia student murdered by an undocumented immigrant is the first bill of the second Trump administration (Yuri Gripas/Abaca/Sipa USA/Sipa via AP Images).

A federal judge has hit pause on an effort by the Trump administration to ban federal support for transgender medical care.

On Friday afternoon, Joe Biden-appointed U.S. District Judge Lauren King, sitting in Seattle, issued a temporary restraining order in favor of three states and three doctors who sued the government on Feb. 7.

The court barred a litany of named federal defendants from “enforcing or implementing” two major sections of a recent anti-transgender executive order signed by President Donald Trump.

Under the terms of Executive Order 14187, which is fashioned as an effort to protect “Children from Chemical and Surgical Mutilation,” the 45th and 47th president intends to cut off all federal funding for institutions that offer pediatric gender transition services or provide any kind of gender-affirming care for people under the age of 19.

In their original petition, Washington, Minnesota, Oregon and three unnamed professors at the University of Washington School of Medicine singled out the defunding provision of the executive order.

The plaintiffs allege Trump’s threat to block funding for state-run medical institutions that continue to serve transgender children and teenagers is an “unconstitutional usurpation of the spending power of Congress, an unconstitutional effort to amend Congressional appropriations by attaching conditions not contemplated by Congress, and a violation of the separation of powers.”

The lawsuit goes on to argue that clawing back already-allocated federal funds will have a substantial and negative impact on medical services entirely unrelated to transgender issues.

This dire state of affairs would allegedly jeopardize over one billion dollars of federal aid relied on in the three plaintiff states alone. The lawsuit says these funds are used by medical schools and hospitals “to research and treat hundreds of conditions having nothing to do with gender-affirming care, including cancer, AIDS, diabetes, substance use disorder, mental health conditions, autism, aging, cardiovascular diseases, maternal health, and so much more.”

After a late morning hearing, King barred some 11 administrative agencies and their respective directors, as well as “all their respective officers, agents, servants, employees, and attorneys, and any person in active concert or participation with them who receives actual notice” of the temporary restraining order from cutting off such funds.

The second section blocked by the court is a law enforcement provision. This section mulls “weaponizing” a federal law against female genital mutilation — a practice largely occurring outside of the Americas — to threaten compliance with the administration’s anti-transgender medical care policy, according to the lawsuit.

On its own terms, the enforcement section anticipates using attorneys general “and other law enforcement officers to coordinate” the enforcement of the 1996 federal ban on female genital mutilation.

To hear the plaintiffs tell it, this section of the executive order “threatens baseless criminal prosecutions against providers” because “transgender minors do not receive gender-affirming genital surgery.”

The temporary restraining order delineates what the defendants are not allowed to do in terms of re-defining federal statutes:

Defendants..are hereby fully enjoined from enforcing or implementing Section 8(a) of Executive Order 14,187 within the Plaintiff States to the extent that Section 8(a) purports to redefine “female genital mutilation” under 18 U.S.C. § 116 as “chemical and surgical mutilation” as defined in Section 2(c) of the Order.

The underlying lawsuit repeatedly rubbishes efforts by the Trump administration to “define out of existence” transgender people.

“The Executive Order attempts to redefine non-surgical treatments for minors as ‘mutilation,’ but this is frivolous,” the filing reads. “The statute has no possible bearing on gender-affirming care. Rather, the Order invokes it solely to sow fear among providers and bully them out of providing gender-affirming care at all.”

The filing elaborates:

To be clear, genital surgery is not performed on transgender minors. But the Order threatens to weaponize this federal statute against puberty blocking medication and hormone therapy, which it defines as “chemical mutilation.” In doing so, the Order attempts to redefine these medically necessary treatments as federal crimes.

The judge will elaborate on her reasoning in a forthcoming opinion, according to the federal docket.

The temporary restraining order is slated to be in effect until Feb. 28, King noted, unless it is extended.

Notably, a lone footnote may somewhat limit the extent of the relief granted to the plaintiffs.

“For the purposes of this Temporary Restraining Order, ‘Defendants’ herein refers to all Defendants listed in the Complaint except President Trump,” King wrote.

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Transgender service members aim to nix Trump’s military ban

homesafetytechpros — Wed, 05 Feb 2025 00:53:22 +0000

FILE – President Donald Trump throws pens used to sign executive orders to the crowd during an indoor Presidential Inauguration parade event in Washington, Monday, Jan. 20, 2025 (AP Photo/Matt Rourke, File).

A group of named plaintiffs, in what appears to be the first lawsuit of its kind, is suing the Trump administration to put a quick stop to the anti-transgender military service ban.

On Jan. 27, President Donald Trump signed an executive order described as an effort to “ensure the readiness and effectiveness” of the U.S. armed forces – aimed at thinning the military’s ranks of individuals who identify as a gender different than their assigned sex at birth. Similar to an earlier anti-transgender executive order, the military focused policy excoriates “radical gender ideology.”

Trump also directly rescinded a previous executive order signed in January 2021 allowing transgender individuals to serve in the military.

On Jan. 28, lead plaintiff Nicolas Talbott and seven others filed their complaint with the U.S. District Court for the District of Columbia. After a brief procedural hiccup, the case was assigned to Joe Biden-appointed U.S. District Judge Ana C. Reyes.

On Monday, the plaintiffs filed a motion for a preliminary injunction – a form of relief that could very well stop the transgender ban from going into effect pending the outcome of the broader case. The judge scheduled a hearing to hash out that motion on Feb. 12.

On Tuesday, aiming for somewhat quicker action, the plaintiffs filed an emergency application for a temporary restraining order.

“Plaintiffs are six transgender service members and two transgender individuals actively pursuing enlistment,” the motion reads. “The ban will inflict irreparable injuries on Plaintiffs and other prospective and current transgender service members. They will be discharged or barred from service, lose their means of supporting themselves and their families, and stripped of the honor, status, and benefits associated with uniformed service to their country.”

The plaintiffs say the swift actions of the U.S. Department of Defense have necessitated their latest, emergency filing.

“[A] transgender service member is already being administratively separated,” the motion goes on. “Even after Plaintiffs filed their complaint and after the Court informed counsel for the parties that it expected expedited briefing on a preliminary injunction application, this service member was presented with an ultimatum: that she must be classified and treated as a man—i.e., not be transgender—or be separated.”

More Law&Crime coverage: ‘Practical reality’: Trump admin dismisses concerns about violence against transgender women in men’s prisons because ‘vast majority’ are already in all-male lockups

In other words, the Trump administration is moving much faster than the court system in order to effectuate preferred policy goals.

The filing relays the story of Miriam Perelson, who is not a party to the current action, and how her unit is dealing with her identifying as a transgender woman. The plaintiffs cast the issue – and the concomitant legal battle – about something immutable.

From the motion, at length:

Requiring Miriam, a transgender woman, to serve as a man is the same as saying she cannot serve at all, since it requires her to stop being transgender, which she cannot do because she is transgender. When her commanding officer asked her to sign a statement affirming that she would agree not to be transgender, she did not sign because she is transgender. When she informed her officer that she could not sign the document, she was informed she would be administratively separated.

The preliminary injunction proceedings, the plaintiffs argue in no uncertain terms, are simply not happening fast enough.

“Urgent relief is required to prevent Plaintiffs and other service members from being deprived of their careers and suffering dehumanizing treatment based solely on their transgender status while the Court considers the Application for Preliminary Injunction,” the motion for the restraining order goes on.

To hear the plaintiffs tell it, the Trump administration’s policy is a violation of the Fifth Amendment’s equal protection clause.

“The President’s categorical exclusion of transgender people lacks any rational basis whatsoever,” the motion argues. “By singling out transgender people for differential treatment, the President’s Order creates a sex-based classification that is subject to, and fails, intermediate equal protection scrutiny.”

The executive order is constitutionally impermissible because it “targets transgender status itself,” according to the plaintiffs, and goes on to discriminate in multiple separate ways.

First, the plaintiffs claim an “explicit classification on the basis of transgender status is inherently a sex-based classification,” which is strongly disfavored by the U.S. Supreme Court. In the past, the nation’s high court has recognized, and the plaintiffs note: “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The plaintiffs, citing from the same ruling, go on to explain that people cannot be penalized for sex-based traits or actions.

“[T]he Order also discriminates based on sex by requiring that all service members conform to the sex stereotypes associated with their birth sex,” the motion continues. “By prohibiting military service by transgender individuals because they do not conform to sex stereotypes, the Order impermissibly discriminates based on sex.”

On Tuesday afternoon, the court held a preliminary hearing on the request for a temporary restraining order. The proceeding ended with no conclusion. The judge ordered the parties to produce a joint status report by late Wednesday afternoon. A second hearing on the emergency application is currently slated for Friday.

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Transgender woman wins restraining order against Trump admin

homesafetytechpros — Fri, 31 Jan 2025 18:58:49 +0000

The first lawsuit filed against the anti-transgender policies of the Trump administration has secured a victory in federal court — for now.

Earlier this week, a judge in Boston issued a temporary restraining order stopping federal prison officials from transferring a transgender woman inmate to a men’s lockup facility. The ruling also bars officials from blocking her access to gender-affirming medical care.

The inmate, identified in court documents as Maria Moe, sued the federal government earlier this week over the Jan. 20 executive order signed by President Donald Trump which purports to defend women from “gender ideology extremism” and restore “biological truth.”

Moe began identifying as a woman when she was in middle school and was able to begin a regimen of hormone therapy for gender dysphoria at age 15, according to her lawyers. Since being incarcerated, she had been housed in a women’s facility — until Trump signed the executive order. After that, she was placed in the Special Housing Unit (SHU) while awaiting transfer to a men’s prison, according to her lawsuit.

The original petition was filed on Jan. 26, and the case was sealed. That day, Senior U.S. District Judge George O’Toole issued the temporary restraining order, Moe’s lawyers told the Reuters wire service on Thursday.

Also on Thursday, other filings in the case were unsealed — with the majority of the documents still kept under judicial lock and key — amid a flurry of activity including oral arguments in which the government appears to have argued that Moe chose the wrong procedural way to attack the government’s anti-transgender policy.

The extent to which the government’s arguments in the case are public, however, relies on the characterizations in the plaintiff’s reply — because the defendants have yet to file a document on the record, according to the federal court docket as of this writing.

In the plaintiff’s latest filing, dated Jan. 29, but docketed the next day, Moe’s attorneys rubbish the government’s approach.

“Unable to defend these policies on their merits, Defendants argue that Ms. Moe must pursue her claims through habeas rather than civil rights litigation, that her claims are not ripe, and that this Court should defer to their decisions to transfer her to a men’s facility,” the latest publicized motion in the case reads. “These arguments fail.”

Moe should not have to file a habeas claim because she is not challenging “the fact or duration of confinement or specific alleged misconduct” by Bureau of Prisons officials, her motion says.

Instead, the lawsuit is premised on an alleged violation of constitutional rights — a challenge against a new policy directed at an “entire class” of people, according to the latest filing.

“The Supreme Court has repeatedly held that for such broad policy challenges, injunctive relief is appropriate,” the motion reads.

Aside from a civil rights claim, the lawsuit essays other legal theories the court could rule on to keep Moe from being transferred.

One avenue is the Administrative Procedure Act (APA), which often blocks an administrative agency’s action when it can be shown that what the government is doing is “arbitrary and capricious.”

Moe says that’s exactly what happened here when BOP officials made moves to comply with the 45th and 47th president’s “mandate to house transgender women in male facilities.”

“The Executive Order directly contradicts the Prison Rape Elimination Act (PREA) and its implementing federal regulations,” the latest motion argues — noting that the PREA is subject to the rulemaking requirements of the APA.

This section of the latest filing echoes the lawsuit — which eschews legalese and dashes through terms of art to state Moe’s case in real terms.

“In a men’s facility, Maria Moe will be at extremely high risk of rape and sexual assault,” the complaint alleges. “She may also be subjected to humiliating, terrifying, and dangerous circumstances like being strip searched by male correctional officers and forced to shower among men, with her female body, including her breasts, exposed and vulnerable to sexual violence.”

The latest motion elaborates on such potential harms, at length:

If transferred to a men’s facility, Ms. Moe faces a very high risk of physical violence and sexual assault. If denied continuation of her medically necessary hormone therapy, her gender dysphoria will worsen, with severe negative consequences for her physical and mental health. Defendants make no real attempt to show that Ms. Moe does not face these serious harms. … The severe threats that enforcement of the Order would pose to Ms. Moe’s physical and mental health and safety are more than sufficient to demonstrate irreparable harm warranting preliminary relief.

In other words, and explicitly in the motion, Moe is asking for the court “to preserve the status quo.”

“The severe and documented harms to health and safety that Ms. Moe faces far outweigh Defendants’ blithe appeal to deference,” the motion argues.

The government, Moe’s attorneys say, has not offered fact-based arguments specific to the present case. Instead, the plaintiffs say, the government has relied on process arguments and the notion of extending deference to the executive branch.

“Defendants do not attempt to show that they or the public would suffer any meaningful harm if the Court grants Ms. Moe interim relief from enforcement of the Order,” the motion goes on. “Instead, they ask the Court to defer to the judgment of the Executive Branch. No deference is warranted, however, when government policy violates fundamental constitutional liberties.”

The temporary restraining order won by the plaintiff, however, is a quick fix and not likely to remain in effect very long. Attorney Jennifer Levi said her client “is staying put for now,” according to Reuters.

O’Toole, a Bill Clinton appointee, is still mulling over whether to issue a preliminary injunction in the case — which would maintain the status quo for much longer while the case plays out in the court system.

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First lawsuit over Trump’s gender executive order filed

homesafetytechpros — Tue, 28 Jan 2025 15:21:36 +0000

Donald Trump signing an executive order aimed at ending birthright citizenship in the U.S. (Forbes).

A transgender prison inmate has filed a lawsuit against Donald Trump’s administration over the constitutionality of the executive order he signed his first day in office directing the government to recognize only two sexes when housing federal prisoners, while also barring their access to gender-affirming medical care. It marks the first official challenge of Trump’s gender order, which the suit blasts as an “imminent threat” to transgender rights.

“Under the Fifth Amendment, sex classifications are subject to heightened scrutiny and are presumptively unconstitutional,” the complaint for the inmate, who is identified by the pseudonym Maria Moe, reads. “On January 23, 2025, Marie Moe’s publicly accessible BOP classification of her sex was ‘female.’ On January 25, that classification indicated ‘male.””

Moe’s suit was filed Sunday in federal court in Massachusetts by lawyers with the civil rights group GLBTQ Legal Advocates & Defenders. Trump signed his executive order targeting “gender ideology extremism” on Jan. 20, shortly after being sworn in.

“Executive Order 14166 began causing harm to Maria Moe almost immediately,” her complaint says. “As a result of the Order, she has already suffered significant distress. The Order also raises serious concerns for her safety and well-being going forward.”

According to Moe’s lawyers, the inmate — who came out as transgender in middle school and began taking hormones for gender dysphoria at age 15 — has been housed in a women’s facility since being incarcerated. She was moved from general population after Trump’s order was issued and placed in the Special Housing Unit (SHU) while she waits to be transported to a men’s prison, her complaint says.

Under Trump’s order, the Federal Bureau of Prisons (BOP) must now house transgender inmates according to their sex at birth. It also bars transgender inmates from receiving gender-affirming care while locked up.

“The Attorney General and Secretary of Homeland Security shall ensure that males are not detained in women’s prisons or housed in women’s detention centers, including through amendment,” Trump’s order says. “The Attorney General shall ensure that the Bureau of Prisons revises its policies concerning medical care to be consistent with this order, and shall ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”

In 2022, the BOP’s gender policy was changed to restore guidelines put in place by Barack Obama’s administration that recognize and protect transgender inmates when housing them in federal correctional facilities. Trump had previously done away with this policy during his first term.

“BOP’s decision to transfer Maria Moe to a men’s facility and the imminent threat to deny her necessary medical care solely because of her birth sex and transgender status are unconstitutional,” Moe’s complaint charges. “The Order directly targets transgender Americans by attempting to deny them legal recognition under federal law and to strip them of long-established legal protections.”

Specifically, Moe’s legal team says Trump’s order violates the Fifth Amendment’s due process protections and the Eighth Amendment’s protection against cruel and unusual punishment. The lawsuit points to the “timing, content and context” of the order, which according to Moe’s lawyers, was fueled by “discriminatory animus.”

Attempts by Law&Crime to reach the Trump administration and GLBTQ Legal Advocates & Defenders for comment Monday were unsuccessful.

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French teacher settles with school board over firing

homesafetytechpros — Fri, 04 Oct 2024 10:05:18 +0000

Peter Vlaming in 2018. (WRIC)

A French teacher has settled with the Virginia school board that fired him for refusing to use a transgender boy’s pronouns.

Peter Vlaming will receive $575,000 in damages and attorneys’ fees, said his legal team at the Alliance Defending Freedom, a far-right advocacy organization known for filing lawsuits aimed at rolling back the rights of gay, lesbian, and transgender people.

“I was wrongfully fired from my teaching job because my religious beliefs put me on a collision course with school administrators who mandated that teachers ascribe to only one perspective on gender identity — their preferred view,” he said in a statement. “I loved teaching French and gracefully tried to accommodate every student in my class, but I couldn’t say something that directly violated my conscience. I’m very grateful for the work of my attorneys at Alliance Defending Freedom to bring my case to victory, and hope it helps protect every other teacher and professor’s fundamental First Amendment rights.”

More Law&Crime coverage: Pair of Trump-appointed federal judges blocks Biden efforts to protect transgender students

West Point Public Schools Superintendent Larry Frazier told Newport News outlet The Daily Press that “we are pleased to be able to reach a resolution that will not have a negative impact on the students, staff or school community of West Point.”

The Virginia Supreme Court last December reinstated Vlaming’s lawsuit, which the Circuit Court of King William County had previously dismissed.

“[N]o government committed to these principles can lawfully coerce its citizens into pledging verbal allegiance to ideological views that violate their sincerely held religious beliefs,” the decision also said. The judges found that the lower court “erred dismissing this claim on demurrer on the ground that Vlaming’s factual allegations, even if assumed to be true, were insufficient as a matter of law to state a free-exercise claim” under Virginia law.

In its ruling, the Virginia High Court said that hurt feelings are sometimes the cost of free speech.

“When religious liberty merges with free-speech protections, as it does in this case, mere ‘objectionable’ and ‘hurtful’ religious speech or, as in this case, nonspeech, is not enough to meet this standard,” the opinion said.

Justice Thomas Peter Mann, who concurred in part and dissented in part, said he agreed with the majority opinion that the circuit court made a mistake and that Vlaming’s lawsuit was “legally viable.” Nonetheless, he said the majority mishandled their analysis of the plaintiff’s claims.

“Regarding Vlaming’s free-exercise claim, the majority establishes a sweeping super scrutiny standard with the potential to shield any person’s objection to practically any policy or law by claiming a religious justification for their failure to follow either,” he wrote (citations omitted). “Justice Antonin Scalia, writing on behalf of the Supreme Court of the United States, warned that interpreting a free exercise clause so broadly would permit an individual ‘to become a law unto himself.’ Under the majority’s analytical framework, all laws and regulations must yield to an individual’s invocation of religious freedom unless doing so results in ‘overt acts against peace and good order.’ I disagree.”

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9th Circuit allows 2 transgender girls to play on sports teams that align with their gender identity

homesafetytechpros — Sun, 29 Sep 2024 16:32:11 +0000

LGBTQ Legal Issues

9th Circuit allows 2 transgender girls to play on sports teams that align with their gender identity

By Debra Cassens Weiss

September 12, 2024, 11:07 am CDT

A federal appeals court on Monday ruled that two transgender girls in Arizona should be allowed to play on school sports teams that are consistent with their gender identity. (Image from Shutterstock)

A federal appeals court on Monday ruled that two transgender girls in Arizona should be allowed to play on school sports teams that are consistent with their gender identity.

The 9th U.S. Circuit Court of Appeals at San Francisco said the transgender plaintiffs were likely to succeed on their claim that the ban violates the equal protection clause of the 14th Amendment.

The appeals court banned enforcement of Arizona’s Save Women’s Sports Act against the girls while litigation continues. The law bans those who are identified as men at birth from playing on women’s interscholastic or intramural sports teams from kindergarten through graduate school.

The author of the Sept. 9 opinion is Judge Morgan Christen, an appointee of former President Barack Obama.

On its face, the law discriminates based on transgender status, the appeals court said. As applied to the girls, the law does not survive strict scrutiny, the 9th Circuit concluded.

“The act’s transgender ban applies not only to all transgender women and girls in Arizona, regardless of circulating testosterone levels or other medically accepted indicia of competitive advantage, but also to all sports, regardless of the physical contact involved, the type or level of competition or the age or grade of the participants,” Christen wrote. “Heightened scrutiny does not require narrow tailoring, but it does require a substantial relationship between the ends sought and the discriminatory means chosen to achieve them.”

The girls had not gone through male puberty, were taking puberty-blocking medication and were undergoing hormone therapy. The opinion says their ages are 11 and 15, while Courthouse News Service said they are 12 and 16.

The 9th Circuit upheld district court findings that before puberty, there are no significant differences in athletic performance between boys and girls, and that transgender girls who receive puberty-blocking medication do not have an athletic advantage over other girls.

The appellants were Arizona’s superintendent of public instruction and several state lawmakers. They had argued that the district court wrongly treated as insignificant small differences in athletic ability between boys and girls before puberty.

But the appeals court said the appellants overlooked findings that small differences identified in some studies “have not been shown to be attributable to biological rather than sociological factors.”

The girls were represented by the National Center for Lesbian Rights, a nonprofit public interest law firm, according to a Sept. 9 press release.

Rachel Berg, a lawyer with the group, told Tuscon.com that the ruling applies only to the plaintiffs, but it is crucial for others in the same situation.

“The 9th Circuit recognized that the law is unconstitutional because it’s a categorical ban on all transgender girls from playing on school sports teams,” Berg said. “It does so regardless of their individual circumstances. The 9th Circuit recognized that just because somebody is transgender tells you nothing about whether they have an athletic advantage.”

Tom Horne, the Arizona schools chief, told Tucscon.com that the 9th Circuit “is very left wing,” and the appellants will have to take the case to the U.S. Supreme Court if they want to win.

The Associated Press also has coverage of the decision.

The case is Doe v. Horne.

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Lawyers representing transgender plaintiffs face possible sanctions for alleged ‘judge shopping’

homesafetytechpros — Sat, 06 Apr 2024 12:42:01 +0000

Ethics

Lawyers representing transgender plaintiffs face possible sanctions for alleged ‘judge shopping’

By Debra Cassens Weiss

March 25, 2024, 12:45 pm CDT

A federal judge in Alabama has directed 11 lawyers to show cause why they shouldn’t be sanctioned for alleged “judge shopping” in lawsuits challenging a ban on some gender-affirming medical procedures for transgender minors in the state. (Image from Shutterstock)

On March 19, U.S. District Judge Liles C. Burke of the Northern District of Alabama, an appointee of former President Donald Trump, unsealed an October 2023 report, which found that 11 out of 39 lawyers for the plaintiffs tried to circumvent random case assignment procedures. The report was conducted by a panel of three Alabama federal judges after Burke expressed concern about judge shopping.

Also on March 19, Burke unsealed his order to show cause, which was initially filed Feb. 21.

Law360, Reuters, Bloomberg Law and the Volokh Conspiracy have coverage.

“It is one thing for attorneys to fret about potential judicial assignments before the ball is snapped (i.e., before a case is assigned),” the three federal judges wrote in the unsealed report. “It is another to try to change the play after the case has been assigned.”

The plaintiffs’ lawyers dropped two suits challenging the transgender medical law after the cases ended up before Burke. A new challenge with different plaintiffs was then filed in the Middle District of Alabama, where U.S. District Judge Myron H. Thompson, an appointee of former President Jimmy Carter, is located.

The new case was not assigned to Thompson, however. It was instead assigned to Burke, who “perhaps ironically,” the report said, blocked a section of the law banning puberty blockers, according to NPR. A federal appeals court later lifted Burke’s injunction.

Lawyers had failed to get one of the two initial cases before Thompson by marking the civil cover sheet as related to a previous case in which Thompson ruled for transgender plaintiffs in a challenge to Alabama’s policy regarding sex changes on driver’s licenses, according to the Associated Press.

The 11 lawyers are ordered to appear before Burke on May 22 and 23 for a sanctions hearing.

Burke’s order directs the lawyers to show cause why they shouldn’t be sanctioned for judge shopping and for misrepresenting or failing to disclose key facts during the inquiry. Certain lawyers were also ordered to show cause whether they should be sanctioned for deliberately misleading the three-judge panel and for failing to get their clients’ consent before dismissing one of the cases.

According to news coverage, the 11 lawyers were from these groups and law firms: the Southern Poverty Law Center, GLBTQ Advocates & Defenders, the American Civil Liberties Union, the ACLU of Alabama, the National Center for Lesbian Rights, Lambda Legal, Lightfoot Franklin & White, Cooley, and King & Spalding. (The King & Spalding lawyer is now with a different firm, while the Lambda Legal lawyer is now with the U.S. Department of Justice.)

Representatives of the groups and firms defended the work of their attorneys, according ti Law360. A Cooley representative told the publication that its attorneys “carried out their responsibilities appropriately and acted with integrity in this matter.”

A Lightfoot Franklin representative told Law360 that the firm is “confident that our attorneys acted in good faith and with no intent to violate any law, rule or established caselaw.”

Burke is sitting by designation in the case, Boe v. Marshall, filed in the Middle District of Alabama.

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