Oklahoma AG says felony ban on minors' trans care is in effect following federal court ruling

U.S. District Judge John Heil III rejected challenges to the law in a Thursday ruling — the first district court judge to reach such a conclusion. An appeal is coming.

U.S. District Judge John Heil III, a Trump appointee to the federal bench in Oklahoma, became the first federal trial court judge to look at a ban on gender-affirming medical care for minors and refuse to halt the law’s enforcement.

Relying heavily on two recent appeals courts decisions holding that Alabama, Tennessee, and Kentucky’s bans are likely constitutional, Heil denied the plaintiffs’ request for a preliminary injunction in a Thursday opinion and order.

The Oklahoma law, S.B. 613, had been on hold by an agreement between the challengers and Oklahoma Attorney General Gentner Drummond that the state would not enforce the law “during the pendency of Plaintiffs’ Motion for Preliminary Injunction.“

According to Drummond’s office, Thursday’s ruling means the ban is now in effect. “The attorney general’s office continues to fulfill its duty to defend Senate Bill 613 and has won a ruling that results in full enforcement of that law,” Drummond’s communications director, Phil Bacharach, told Law Dork.

The plaintiffs’ lawyers — from the ACLU of Oklahoma, ACLU, Lambda Legal, and Jenner & Block — released a joint statement confirming that they will be appealing.

This is a devastating result for transgender youth and their families in Oklahoma and across the region,” per the statement. “But this is not the end. We are appealing this decision that is completely out of step with all other federal trial courts and that ignores the overwhelming evidence that gender-affirming medical care is safe and effective evidence-based care.”

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Before the two appeals court decisions, federal judges had been in unanimity — since a July 2021 ruling in a case over Arkansas’s ban — that these laws are pretty clearly unconstitutional. Those rulings included a different federal appeals court ruling and rulings from judges appointed by presidents of both parties — including Trump appointees. When Indiana’s ban was put on hold in June, by a Trump appointee, it was the fourth such ruling.

A July ruling from two judges on the U.S. Court of Appeals for the Sixth Circuit changed everything. Although posed as an extremely early ruling allowing Tennessee’s ban to go into effect while the appeals court could consider the matter more closely, the ruling — from Chief Judge Jeffrey Sutton, a George W. Bush appointee, joined by Judge Amul Thapar, a Trump appointee — altered the national perspective by suggesting that laws that had been considered almost presumptively unconstitutional at that point could be upheld if a judge chose to do so.

It was a stark move that Sutton — who previously was overturned by the U.S. Supreme Court when he wrote the sole appeals court decision upholding bans on same-sex couples’ marriages after the U.S. Supreme Court struck down the Defense of Marriage Act in 2013 — knew would have that very effect.

And so it has. First, a three-Trump-judge-panel from the U.S. Court of Appeals for the Eleventh Circuit issued a ruling, authored by Judge Barbara Lagoa, in August upholding Alabama’s ban as likely constitutional. Then, just last week, Sutton doubled down and ruled, along with Thapar, that Tennessee and Kentucky’s bans are likely constitutional.

If those rulings were bad for challengers of these laws and for all of the trans people targeted by them, then Thursday’s ruling out of Oklahoma showed the damage such rulings can impose when put in the hands of — how can I put this? — less able jurists.

Heil’s ruling was a simplistic one containing lots of block quotes from the Sixth Circuit and Eleventh Circuit opinions. It avoided even discussing any of the other decisions finding these laws to be likely unconstitutional, generally only addressed countervailing precedents by quoting from Sutton and Lagoa’s decisions, and ignored or papered over the facts of the Oklahoma law — including the felony criminal provision that can be enforced against a medical provider until a treated minor reaches 45 years of age.

Importantly, too, Heil’s ruling was the federal court ruling least sympathetic to transgender people’s dignity. Transgender people’s right to exist was essential a non-concern for Heil.

Looking at the many anti-trans laws passed across the nation, for example, Heil wrote, “The very existence of this dispute, and ongoing thoughtful debate, is independent evidence that Plaintiffs are unlikely to establish that there is no rational basis for the legislature’s decision.” It was a more unreasoned extension of Judge Jeffrey Sutton’s opinion in the Sixth Circuit case, which strongly defended the importance of leaving these questions to the democratic process.

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In these legal challenges, the three main arguments are that laws banning gender-affirming medical care for minors discriminate on the basis of sex, discriminate on the basis transgender status, and violate parental rights in making medical decisions for their children.

While the Sixth Circuit and Eleventh Circuit decisions rejected those claims, they did so with an understanding of the law — if also with an unwillingness to apply it fairly to transgender children facing the fallout from these laws.

For Heil, however, these are claims that he easily and dismissively rejected. And it’s there, when he steps outside of the quotes from Sutton and Lagoa, that his arguments become the least reasoned — and contain the most clear lack of understanding of, at best, or antipathy to, at worst, transgender people.

On the sex discrimination claim, where plaintiffs argue that the ban “enforces sex stereotypes and gender conformity,” Heil says no.

Heil’s treatment of the plaintiffs’ argument that the law discriminates on the basis of transgender status reaches a similar conclusion to the Sixth Circuit ruling, and yet, does so with a particularly disturbing framing. Although Sutton, as I wrote last week, ignored the larger anti-trans context for these laws, Heil addresses it — and says it doesn’t exist.

“The Court is not persuaded by Plaintiffs’ argument that SB 613 is part of a ‘larger legislative strategy to discriminate against transgender people, including by restricting access to gender-affirming care for people of all ages’ for three reasons. He finds that more anti-trans bills would have passed into law if this was a strategy, that plaintiffs didn’t provide evidence of the 15 anti-trans bills they claimed were introduced, and that one of the other bills that didn’t pass would have gone further then the bill passed into law.

“The Court likewise rejects Plaintiffs’ claim that SB 613 discriminates against transgender individuals because it ‘singles out medical care that only transgender people need or seek,’” Heil wrote. “Although the statute does restrict a specific course of treatment that only transgender individuals would normally request, that fact alone does not render the statute invalid,” he continued, citing the U.S. Supreme Court’s decision overruling Roe v. Wade and its brief mention of Geduldig v. Aiello, a 1974 Supreme Court case, for the principle that “regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.’”

Applying that to Oklahoma’s anti-trans law, Heil wrote, “Where, as here, there is no evidence of pretext for discrimination, SB 613’s classification scheme does not trigger a heightened standard of review.” Justifying this, he cited to the Eleventh Circuit’s ruling.

Finally, as to the parental rights claim, Heil applies Supreme Court precedent holding that claims like this must be considered at an appropriate level of specificity and finds that, rather than a parental right to direct medical care for their children, the proper level of specificity is “a fundamental right for parents to choose for their children to use puberty blockers, cross-sex hormones, and surgeries for the purposes of effectuating a gender transition.“

This essentially ends the question because, under the Supreme Court’s test, once the claimed right is identified, courts examine whether that claimed right is “rooted in our Nation’s history and tradition and whether it is an essential component of what we have described as ‘ordered liberty.’” To that, Heil found, “Plaintiffs have not provided any historical antecedents demonstrating that a right to the Treatment Protocols is deeply rooted.”

With the claims for heightened scrutiny of the law dismissed, Heil considered whether there was a rational basis for the law and easily rejected the plaintiffs’ challenge.

Although an appeal is coming, Oklahoma’s ban is apparently now in effect — and a direct line can be drawn from Sutton’s July ruling to today.