Idaho asks SCOTUS to let it enforce anti-trans ban on minors' medical care during appeal

The anti-trans filing ultimately focuses on the broad scope of the district court injunction, which bars the state from enforcing the ban at all during the case.

The Idaho Attorney General’s Office is asking the U.S. Supreme Court to let it enforce its 2023 ban on gender-affirming medical care for minors against anyone besides the two plaintiff minors challenging the ban while the case continues on appeal, Law Dork has learned.

[Update, 3:20 p.m. Feb. 21: A response was requested to Idaho’s application, due by noon, February 28.]

A federal district court judge issued a preliminary injunction in December 2023 preventing the state from enforcing the law at all while litigation continues. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in late January denied the state’s request for a stay of that injunction pending appeal. The district judge and all three appeals court judges were Democratic appointees.

Now, Republican Attorney General Raúl Labrador’s office confirmed to Law Dork, the office has asked the Supreme Court to step in — filing an emergency application for a stay of the injunction pending appeal more than seven weeks after the injunction was issued.

Although the application is not yet showing up on the Supreme Court’s docket as it likely has not yet been approved for filing, Labrador’s office provided a copy of the filing, dated Feb. 16, to Law Dork upon request. (The application is filed with Justice Elena Kagan, as the circuit justice for the Ninth Circuit, but the request will likely be referred to the full court for any final resolution.)

“[T]he district court’s sweeping injunction hamstrings Idaho’s ability to protect its citizens from well-recognized harms,” lawyers for the state argue, citing protection of children as the state’s main goal while denying any negative effect that such legislation — which includes felony criminal penalties for medical providers who violate the ban — would have on transgender minors in the state or those providers who treat them.

Labrador’s office did not prepare the filing alone. As reported previously at Law Dork, Labrador has retained help from the far-right Christian legal advocacy organization Alliance Defending Freedom — which is representing the state “without charge” — and the conservative D.C.-based law firm of Cooper & Kirk.

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Perhaps because of that, some of the briefing contains extreme anti-transgender argumentation in defense of the law, including a half-page recitation of New York Times opinion columnist Pamela Paul’s heavily criticized opinion column about “desistance” and detransitioners.

Although the state’s filing initially identifies the parties as they are — noting that they are (with pseudonyms) “Pam Poe, by and through her parents and next friends, Penny and Peter Poe; Penny Poe; Peter Poe; Jane Doe, by and through her parents and next friends, Joan and John Doe; Joan Doe and John Doe (Plaintiffs-Appellees below)“ — the filing later improperly refers to them as “adolescent boys who have gender dysphoria.“

The brief also advances arguments that have been rejected by district court judges reviewing the evidence and the experts presented by both sides of challenges across the country in every federal case save one. Summing up their argument on the merits, Idaho’s lawyers dismissively state: “The Act only regulates the experimental, dangerous, and ineffective use of these procedures to try to resolve gender dysphoria by making a child’s body look more like the opposite sex.”

The anti-trans vitriol, however, isn’t the primary legal focus of the filing. The bottom-line argument presented to the justices at this point, instead, is largely based on the scope of the injunction issued by U.S. District Judge B. Lynn Winmill, a Clinton appointee: It is statewide, bars enforcement of the law against anyone, and prevents enforcement of any aspect of the law.

“This stay application presents a recurring question that five members of this Court have identified as warranting review: whether a district court may facially enjoin a state law and prohibit its enforcement against non-parties,” they wrote — although they later acknowledged that two of the five (Justices Brett Kavanaugh and Amy Coney Barrett) only stated that the issue was “important” and “could” merit review in a future case.

In short, Idaho argues that the law being found to be likely unconstitutional by the district court should not be enough to prevent the state from being able to enforce the law.

This is so, they argue, because the challengers are two transgender girls who only, they claim, would be directly affected currently by the estrogen ban:

Both Plaintiffs have attested that they once took puberty blockers. … It is not clear from the record whether either still does. Neither plaintiff seeks surgical interventions. Neither Plaintiff is a [transgender boy] seeking testosterone. The only parts of the Act potentially relevant to them are its limits on prescribing estrogen to treat gender dysphoria. The limitations on surgical interventions and testosterone do not affect them at all.

Yet the district court enjoined the entire Act. Its injunction prohibits Idaho from “enforcing any provision” of the Act against anyone.

The state goes on to argue that because of this the statewide injunction against any enforcement of the law should be stayed pending appeal by the Supreme Court for three reasons: The injunction “goes far beyond the relief necessary” for the parties, the law has some “medically appropriate” applications, and the injunction blocks some parts of the law that plaintiffs “lack standing” to challenge.

The state does not, however, argue for the right to enforce the ban against the plaintiffs during the appeal. (Although the district judge, in part, granted the injunction in the form he granted it because he found that the plaintiffs’ pseudonymous status would make it more difficult to guarantee protection from a more limited injunction. Expect more on this in the challengers’ response to Idaho’s request.)

Somewhat ironically, Idaho relies heavily upon the November 2023 decision of the Supreme Court rejecting Florida’s request to enforce its anti-drag law during appeals. There, three justices — Justices Clarence Thomas, Sam Alito, and Neil Gorsuch — stated that they would have let Florida do so. Kavanaugh, writing for him and Barrett, voted to reject Florida’s request but stated — as noted above — that the issue of statewide injunctions was an “important” one. In the Florida case, though, Kavanaugh wrote that the First Amendment issues involved, in particular, made the case a poor one to address the question about the statewide injunctions.

This case has no such issues and would be a good one to resolve these questions about statewide injunctions, Idaho’s lawyers argue, which they then state would make review more likely and justify a stay of the injunction during the appeal.

Additionally, though, they also argue that the court can take up the merits — of the constitutionality of bans on gender-affirming care for minors — question now if the justices wish, treating this application as a petition for certiorari before judgment and agree to hear the case.

The Idaho filing comes as the justices have declined to review other cases addressing anti-LGBTQ laws and declined multiple requests from states seeking to enforce anti-LGBTQ laws during appeals, as well as not having acted on petitions — including from the Justice Department — seeking review of appeals court rulings allowing enforcement of anti-trans laws similar to Idaho’s law in Tennessee and Kentucky.