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    Ann Rostow: The Shadow Doesn’t Know

    By Ann Rostow–

    The Shadow Doesn’t Know

    I’m not sure what to make of the Supreme Court’s first ruling on the subject of transgender youth, effectively reinstating Idaho’s ban on puberty blockers, hormones, and surgery for minor kids. The state of Idaho had asked the justices to lift a preliminary hold on the law, which was issued by a lower court and upheld by the Ninth Circuit. In doing so, the Court did not make any pronouncements on the underlying subject, instead deciding that the lower courts’ hold on the entire law was excessive. The law will continue to be blocked only for the two transgender plaintiffs who were seeking puberty blockers and estrogen therapies. 

    On one hand, it’s not good. It just isn’t. On the other hand, no one likes the idea that a single judge can issue a sweeping injunction based on an initial complaint from one or two plaintiffs. Recall the insanity emerging from Judge Matthew Kazmierczak in Texas, who singlehandedly blocked the provision of abortion drugs throughout the country based on ludicrous legal theories until the High Court stepped in. In Idaho, the plaintiffs sought specific treatments yet the court denied all enforcement of the state’s much more extensive anti-trans statute. 

    The three liberal justices would have maintained the block on the law, while our buddies Thomas and Alito joined Justice Gorsuch in setting it aside, and Justices Kavanaugh and Barrett concurred with a separate statement. Three mini-opinions on a motion for relief from an injunction is unusual, as far as I understand it. Normally, the Court just sends out a vague little paragraph, leaving legal mysteries for analysts to unravel. 

    I’m not done with this! Oh, I know its legal news and your eyes are glazing over, but bear with me. The much talked about “shadow docket” has been decried by everyone on all sides of contentious issues, and as Gorsuch pointed out, it has exploded in the last decade. Gorsuch explained it better than I could (I admit with regret):

    “Normally,” he wrote, “parties spend ‘their time methodically developing arguments and evidence’ before proceeding to a trial and final judgment limited to the persons and claims at hand … . If they seek relief for a larger group of persons, they must join those individuals to the suit or win class certification. In [shadow docket] practice, none of that is necessary. Just do a little forum shopping for a willing judge and, at the outset of the case, you can win a decree barring the enforcement of a duly enacted law against anyone. Once that happens, the affected government (state or federal) will often understandably feel bound to seek immediate relief from one court and then the next, with the finish line in this Court. After all, if the government does not act promptly, it can expect a law that the people’s elected representatives have adopted as necessary and appropriate to their present circumstances will remain ineffectual for years on end.”

    In his own statement, Kavanaugh (with Barrett) pointed out that, the process of deciding whether or not one side or another is likely to succeed on the merits of the underlying case is itself problematic. This kind of pre-judgment, determined without briefing or expert knowledge, is built into the question of whether or not to issue a preliminary injunction against a challenged law. Once issued, however, it has an impact on how the case proceeds and, well, let’s just say it makes everyone think that the appellate court or the Supreme Court has basically already picked the winner. In a way, Justice Jackson was agreeing with this dilemma when she (and Sotomayor) argued that, as a rule, the High Court should give deference to the lower courts when they both agree to issue a hold.

    Justice Kagan agreed with the liberals without comment, and the Chief gave no indication as to how he voted or what he thought.

    More on This

    I’m sorry that this important discussion of the shadow docket had to come at the expense of transgender kids in Idaho, but at least the Court made no statement about the actual law itself, which we know will wind up in their hot little hands before long. 

    I think we can all guess what some of the justices think. Justice Gorsuch made two gratuitous references to the fact that genital surgery for children and teenagers would still be legal unless the Idaho law was restored, as if little boys throughout the spud state were dashing into the operating theaters to have their dicks cut off while the injunction stayed in place. Indeed, I’ve written at length about the all-or-nothing approach to transgender youth health we experience in our country, and I’m under no illusion the High Court will miraculously take a broader view when a showdown arrives.

    Meanwhile, a significant study commissioned in 2020 by the National Health Service in England has come to a close, concluding that the jury is out on the impact of hormone treatment for young people and, as Reuters put it, that “extreme caution” should be exercised when issuing prescriptions. On the other hand, experimentation with gender through dress and behavior is considered a normal and often useful process at an age when “rigid binary gender stereotypes can be unhelpful.”

    Make of that what you will. As far as our advocates are concerned, any and all state intervention into transgender health policies is Bad News, mainly because the only states that want to intervene have GOP-led governments that want a flat ban on everything under the sun. 

    It’s exhausting to write about, and I see from my news list that the full U.S. Court of Appeals for the Eighth Circuit just heard oral arguments on the trans ban in Arkansas, which has been blocked for now, first by a lower court and then by a three-judge appellate panel. The case went back to lower court for consideration on the merits of the law, and after the court ruled against Arkansas, the full Eighth Circuit decided to take review. I’ve kind of lost track of the other appellate rulings out there, although I can tell you that the Sixth Circuit has upheld laws in Tennessee and Somewhere Near Tennessee, in a case that has been appealed to the High Court (who have not responded as yet). And the Eleventh Circuit has given a green light to Florida’s ban as well. I could actually look this stuff up, but that would be kind of like cheating; like googling the answer to a crossword clue.

    It was Kentucky.

    Log Cabin Shenanigans 

    In the last few days, I seem to have become obsessed with various First Amendment court cases. Something about abortion access in Indiana, a lengthy essay about freedom of yada yada yada for abusive priests in Louisiana, the Oklahoma Supreme Court considering blah blah blah about a Catholic charter school. 

    I assure you, these various news stories fascinated me at the time, not so long ago, and I resolved to tell you all about them because the First Amendment is one of our very favorite subjects! Hmm, I see that the priest story is about Due Process, but you know what? We love Due Process stories too! 

    Just not today. I’m over it and don’t feel like revisiting any of this litigation. I just deleted a whole bunch of this and my spirits are already lighter for it. Forgive me.

    I see that Melania has decided to speak at a Log Cabin Club fundraiser on April 20, much to the chagrin of a certain sector of the MAGAverse. The Log Cabin Club, as you know, purports to represent GLBT Republicans, although I’m not sure they like the Ts, and they are certifiable. They root for Trump and recently condemned Joe Biden for acknowledging the Transgender Day of Visibility because this year it fell on Easter, so Biden’s respect for transgender Americans was, I don’t know, rude to Christians? The same Christians who, when I was growing up, were once considered generous and kind people, eager to help their neighbors and avoid judgment? Not so much anymore, I guess.  

    At any rate, the enigmatic Melania is either helping Trump to broaden his base, making a friendly gesture to GLBT Americans, or deliberately screwing around with MAGA sensibilities. I have no idea and I’m guessing neither do you. 

    Oh, I just found a comment about the Easter business from the President of the Log Cabin Club, Chris Moran:

    “Time and time again, the Biden-Harris Administration shows that it’s utterly tone-deaf when it comes to the priorities of average Americans,” Moran said. “Yes, this Administration has been marking March 31st as Transgender Day of Visibility for several years now. And yes, Easter moves around. But I’m awe-struck that nobody in the White House thought that it might be prudent to possibly move the trans proclamation up or back a day, so it didn’t directly conflict with the most important holiday in the Christian faith.”

    Chris! There was no “conflict” here. It was not either Easter or Transgender Day of Visibility. It was both. Obviously, Biden had nice things to say about Easter as well so he overcame the two-things-at-the-same-time conundrum that seems to have flummoxed Mr. Moran, who added bizarrely that Biden’s transgender statement “shows that LGBT voters should seriously look elsewhere for leadership than the failed Biden-Harris Administration,” who are “needlessly making it worse, not better, for all of us, with stunts like this.”

    New Trans Victory Just Announced

    Alert! Just as I decided to throw legal news under the bus and fritter away my last column inches on One Million Moms comes news that the U.S. Court of Appeals for the Fourth Circuit has ruled in favor of a transgender girl who challenged West Virginia’s transgender sports ban.

    This is a big deal, my friends. The Fourth Circuit is also poised to rule on transgender health care en banc, meaning the entire court will decide the fate of various unfriendly insurance programs in West Virginia and North Carolina, so we’ve been waiting for that giant ruling any day now. But these sports bans raise completely different issues, and arguably run afoul of Title IX of the Education Amendments of 1972 when applied to public school and college sports. 

    The case was a challenge from Becky Pepper-Jackson, then 13, who took puberty blockers and transitioned to female in third grade. Becky’s spot on the girl’s track and field team was theoretically blocked by West Virginia’s 2021 “Save Women’s Sports Act,” and Becky sued the state, winning a lower court preliminary injunction against the law that was mysteriously reversed by the same court later in the proceedings. The lower court ruled against Becky’s Equal Protection claim, and also dismissed her Title IX claim based on the notion that you’re allowed to separate out genders when it comes to sports, which is somewhat true. 

    I have a vague memory of seeing that seemingly inexplicable development at the time and not wanting to have to figure out what the hell happened. At any rate, the Fourth Circuit took up the case and has now vacated the lower court’s Equal Protection decision and sent it back to the lower court for fact finding, which was not done originally. As for the Title IX claim, the majority reversed the lower court, finding that the discrimination Becky suffered was indeed a violation of Title IX’s protections. You may recall that this is the same appellate court that ruled in favor of high school trans boy Gavin Grimm, who won the right to use the bathrooms under Title IX. 

    I haven’t read the dissent, so sue me. 

    The majority pointed out that Becky never experienced male puberty with all its testosterone-infused male sportiness, and that it’s possible a different scenario could exist in which competitive fairness, one of the state’s big reasons for the law, would come into play, so to speak. However, you can’t have a law that “protects” all cisgender girls from playing against all trans girls based on the idea that one of the trans girls will beat out one of the cis girls. Further, the West Virginia law only applied to girls, so trans boys were allowed to play on any team, a blatant example of sex discrimination right there.

    Keep in mind that the full bench of the Second Circuit is about to rule on this question as well. So, yes, there will be more legal news for us to share. I can’t wait!

    GLBT Fortnight in Review
    Published on April 18, 2024