Supreme Court rejects West Virginia's request to enforce its anti-trans sports law now

Also: Indiana has been sued over its new anti-trans law, and Tennessee faces a May trial over its drag restrictions law. And: Clarence Thomas.

The U.S. Supreme Court on Thursday rejected West Virginia’s request that it be allowed to enforce its anti-trans sports ban against Becky Pepper-Jackson, a 12-year-old transgender girl who is a member of her school’s cross-country team.

Justice Samuel Alito, joined by Justice Clarence Thomas, dissented from the order, writing that the pair would have lifted the injunction issued by the U.S. Court of Appeals for the Fourth Circuit — a move that would then allow West Virginia to enforce its ban.

With the order, however, the current injunction against West Virginia will remain in place — and Becky allowed to remain on her team — while the appeals court considers the long-pending case.

In Alito’s dissent, it’s pretty clear that he understands how unjustified his position is, writing:

It is true that West Virginia allowed the District Court’s injunction to go unchallenged for nearly 18 months before seeking emergency relief from a second, identical injunction. And it is a wise rule in general that a litigant whose claim of urgency is belied by its own conduct should not expect discretionary emergency relief from a court.

In other words, West Virginia didn’t care to oppose the trial court’s injunction for almost a year and a half and then came to the Supreme Court seeking “emergency relief” from the appeals court’s injunction. That’s normally a no-go.

But, Alito continued, West Virginia should have been allowed to enforce the law here for, implicitly, three reasons: the appeals court ruling was 2-1 and not unanimous, the appeals court ruling included no explanation, and the district court had concluded that the law is constitutional. In Alito’s words:

But in the circumstances present here—where a divided panel of a lower court has enjoined a duly enacted state law on an important subject without a word of explanation, notwithstanding that the District Court granted summary judgment to the State based on a fact-intensive record—the State is entitled to relief.

The claimed logic here takes into account matters that, ordinarily, are not taken into account — at least not officially.

The Fourth Circuit’s injunction is an interim ruling that only holds during the appeal; it’s not unusual for such orders, including from the U.S. Supreme Court, not to include a justification or explanation. Many of us criticize that lack of transparency in general — and so could Alito, if he were consistent — but it’s quite a thing for Alito to use that as a basis for overturning the appeals court in this one matter, almost certainly in alignment with his ideological views in the case.

Alito’s conclusion acknowledged that his dissent rests on shaky ground:

If we put aside the issue of the State’s delay in seeking emergency relief and if the District Court’s analysis of the merits of this case is correct, the generally applicable stay factors plainly justify granting West Virginia’s application.

In other words, “If we ignore the unjustified delay and assume the district court is right, then my dissent is right.”

This is not the end of this case, not by a long shot, but it is a win for Becky for now.

---

Indiana’s new trans ban goes to court

Hours after Republican Indiana Gov. Eric Holcomb signed the state’s ban on gender-affirming care for minors into law on April 5, the ACLU of Indiana and the national ACLU filed a class-action lawsuit to strike the law down.

As the complaint put it:

This law takes away critical health care from a group of Hoosiers, leaving them and their parents in dire circumstances. It is vast government overreach into the decision-making of parents and will cause untold harms to the individuals affected and the practice of medicine in Indiana. It is also unlawful and unconstitutional and should be enjoined both as to plaintiffs and the classes they seek to represent.

The legislation, S.B. 480, bans providing gender-affirming medical care to minors, including puberty blockers and hormones. It only allows continued treatment for those currently receiving hormone therapy through the end of this year. It goes further than many of the other similar bans, threatening the medical licenses of anyone who “aids or abets” another medical professional in providing gender-affirming medical care to minors.

The proposed classes include minors diagnosed with gender dysphoria who would otherwise seek to receive gender-affirming medical care, parents of such children, and medical professionals who would provide such care.

The lawsuit asks, in main, for the law to be struck down:

The case has been assigned to U.S. District Judge J.P. Hanlon, a Trump appointee, although the parties — if all agree — also could have the case considered by a magistrate judge.

The law is set to go into effect on July 1, so expect fairly quick movement here on this challenge.

Tennessee drag law challenge moves forward

The temporary restraining order preventing Tennessee officials from enforcing the new adult cabaret entertainment law that would criminalize some drag performances has been extended through May 26.

At a status conference held April 5, lawyers for Tennessee did not oppose extending the TRO until briefing can be completed to allow for a trial on the challengers request to enjoin the law.

U.S. District Judge Thomas Parker, a Trump appointee, issued the initial TRO on March 31, hours before S.B. 3 was due to go into effect. Ordinarily, a TRO would expire after 14 days, hence this week’s scheduling conference. TROs are for emergency relief; the plaintiff’s request for a preliminary injunction would, if granted, go into effect until final judgment in the case.

At the status conference, which was conducted online via videoconference and made accessible to members of the media (including Law Dork) and public, Tennessee lawyers and lawyers for the plaintiff, mostly cordially, agreed to put forward a schedule that will lead to a May 22 hearing over that preliminary injunction request.

Here’s the upcoming briefing schedule:

• April 14: Plaintiff’s brief

• April 28: State’s brief

• May 5: Plaintiff’s reply

• May 12: State’s surreply

Additionally, the parties agreed that a transcript of the legislative debate over S.B. 3 will be entered into the record, and any discovery is to be completed by April 28.

This is a quick-moving schedule that, apparently, will lead to a ruling from Parker within four days of the trial — unless he then extends the TRO further.

Also, and as noted by Brice Timmons, lawyer for the plaintiffs, the reality here is that a main purpose behind the briefing and trial here is to create a good record for the U.S. Court of Appeals for the Sixth Circuit, which will hear any appeal of Parker’s ruling on the preliminary injunction.

---

Clarence Thomas, jetsetter.

What to say. (So much, really, but, for now …)

Read the ProPublica article.