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Judge blocks Georgia's ban on hormone therapy for transgender minors
U.S. District Judge Sarah Geraghty, a Biden appointee, issued the preliminary injunction Sunday after a hearing earlier this month.
[Update, 12:30 a.m. August 22: Read this report on a Monday ruling from the U.S. Court of Appeals for the Eleventh Circuit upholding Alabama’s ban on gender-affirming medical care for minors as likely constitutional. Appeals from Georgia are heard in the Eleventh Circuit, so Monday’s ruling could quickly affect Sunday’s Georgia injunction.]
[Update, 1:45 p.m. Aug. 22: Georgia officials asked the district court to reverse course, vacate its injunction, and allow the state officials to enforce the state's anti-transgender ban on hormone therapy for minors in light of Monday's Eleventh Circuit ruling upholding Alabama's similar ban.]
[Update, 8:00 p.m. Aug. 22: U.S. District Judge Sarah Geraghty set a briefing schedule for a response and reply at to Georgia’s Tuesday request over the coming week, meaning there is no immediate change to the Georgia injunction.]
A federal judge in Georgia on Sunday issued a ruling that blocks the state from enforcing its new ban on hormone therapy for transgender minors while the case proceeds.
U.S. District Judge Sarah Geraghty, a Biden appointee, issued the preliminary injunction in the case, Koe v. Noggle, following a hearing earlier this month. The injunction, Geraghty explained, applies statewide to the benefit of all Georgians who otherwise might have been impacted by the law.
The ruling was the first on a new law since the majority in a 2-1 ruling from the U.S. Court of Appeals for the Sixth Circuit suggested, in a case involving a Tennessee law, that these bans could be constitutional. (That ruling already has had a spillover effect in Kentucky, which is also in the Sixth Circuit.)
Geraghty found otherwise. With her ruling, theirs remains the only ruling to have held as such.
Instead, Geraghty sided with the other courts to consider the issue — ultimately finding that “SB 140’s hormone-therapy ban is substantially likely to violate the Equal Protection Clause.”
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Georgia’s law, S.B. 140, did not include a ban on puberty blockers, so the injunction only addresses cross-hormone replacement therapy. (That said, in her ruling, Geraghty pointed to expert testimony for the plaintiffs in explaining why that exclusion did not, in reality, make Georgia’s law very much different from other bans, given that puberty blockers and hormone replacement therapy are used together in treatment of gender dysphoria for transgender minors.) The preliminary injunction does not address the surgery ban in the law, similar to other preliminary injunction rulings.
Geraghty, as with several other courts — and contrary to the Sixth Circuit panel’s decision — found that intermediate scrutiny applies to considering whether the law violates the Equal Protection Clause. That is so, she found, because the law “classifies on the basis of natal sex“ — in so doing, she specifically dismissed part of the Sixth Circuit’s reasoning on this front, writing that she was “unpersuaded” by the part of the appeals court’s opinion holding otherwise — and because it “places a special burden on nonconformity with sex stereotypes.”
As to that, she explained:
SB 140 places a special burden on transgender minors, like the minor plaintiffs, and it does so on the basis of their gender nonconformity. By its terms, the law bans the use of cross-sex hormones only for the treatment gender dysphoria, or the persistent incongruence of gender identity and natal sex.
As to both points — the sex classification and the sex stereotyping basis — Geraghty instead pointed to prior decisions from the appeals court that oversees cases out of Georgia, the U.S. Court of Appeals for the Eleventh Circuit, to back up her ruling.
Having found that intermediate scrutiny applied, the state must point to an “important state interest” that it is seeking to advance by the law. With Georgia’s ban, as in most of these cases, the state’s claimed interest is “protecting children through regulation of the medical profession.” That’s not all, though. Then, Geraghty wrote, “[o]nce an objective has been identified, the state must provide evidence that the policy serves that important objective and that the policy is substantially related to its achievement.”
How did that work out here? Geraghty found:
In her ruling, similar to the other trial courts to have considered these bans, Geraghty questioned the state’s aims with their new law, as well as the state’s experts.
“[T]he preliminary record evidence of the medical risks and benefits of hormone therapy shows that a broad ban on the treatment is not substantially likely to serve the state’s interest in protecting children,” Geraghty found, later adding that “the state has presented little in the way of reliable evidence of desistance or regret in those who would qualify for hormone therapy pursuant to the applicable standard of care.”
Pulling together the intermediate scrutiny test with her findings in the case, her conclusion was stark:
[T]here is no “close means-ends fit” between SB 140’s sex-based ban and the state’s asserted interests. As other courts have on similar facts, this Court finds it substantially likely that Plaintiffs can succeed in showing that SB 140 cannot survive heightened scrutiny.
After finding that the plaintiffs are likely to succeed in their Equal Protection claim, Geraghty found in the challengers’ favor on the other preliminary injunction factors, including the irreparable harm the plaintiffs would face without an injunction and the public interest.
Then — and notably, given questions about the scope of the injunctions in other states — Geraghty went on to spend substantial space in her order explaining why a statewide injunction is necessary in this case.
She found that it was appropriate and even necessary here both because the challengers have succeeded in bringing a facial claim — meaning there are no circumstances in which the law is constitutional — but also because “a facial injunction is required to secure complete relief to named plaintiffs.” This is so, she explained, for several reasons, including that the plaintiffs were granted permission to proceed in court pseudonymously.
“[I]t would be administratively burdensome, if possible at all, to fashion an injunction that would allow them to secure relief without compromising their anonymity,” she wrote.
Absent other court action — whether from Geraghty or on appeal — Geraghty’s injunction will remain in place pending the final outcome of the challenge to S.B. 140.
This is a breaking news report. It was updated and expanded after initial publication, with the final update at 4:45 a.m. Please check back at Law Dork for the latest news.
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