7th Circuit Vacates Injunction Against Indiana's Ban on Gender Transition Treatment for Minors

In K.C. v. Individual Members of the Medical Licensing Board of Indiana, (7th Cir., Nov. 13, 2024), the U.S. 7th Circuit Court of Appeals in a 2-1 decision reversed a federal district court's preliminary injunction against Indiana's ban on non-surgical gender transition procedures for minors. Rejecting the district court's conclusion that the treatment ban violates the Equal Protection Clause, the 7th Circuit majority held that the law need only meet the rational basis test. The court said in part:

The only way SEA 480 implicates sex at all is that the medical treatment at issue is sex specific—it denies each sex access to the other’s hormones. A physician could, if not for SEA 480, prescribe two medical treatments: one exclusively to girls with gender dysphoria—testosterone; and one exclusively to boys with gender dysphoria—estrogen.....

When a state regulates a “medical procedure that only one sex can undergo,” the courts apply rational-basis review “unless the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.’”...

Bostock does not apply to every use of the word “sex” in American statutory and constitutional law. The case decided an interpretive question about Title VII’s reach. Title VII does not apply here, so neither does Bostock.

The majority also rejected the claim that the Indiana law violates the Due Process right of parents to make medical decisions for their children because it does not carve out an exception for treatment when a parent consents. The majority said in part:

SEA 480 is supported by a rational basis.... [P]rotecting minor children from being subjected to a novel and uncertain medical treatment is a legitimate end. And if Indiana had included a parental-consent provision, the exception would swallow the rule...

Finally the majority rejected the claim that the statute's ban on aiding and abetting violates physicians' free speech rights, saying in part:

... [W]hen the physicians and the state do not see eye-to-eye on treatment—and when the state validly regulates that treatment—the state must be able to preclude its physicians from using their authority to help the state’s citizens access the treatment. Otherwise, the physicians would hold a veto over the state’s power to protect its citizens. SEA 480’s secondary liability provision covers unprotected speech, and it reasonably relates to its primary liability provision, which itself is a reasonable regulation.

Judge Jackson-Akiwumi filed a dissenting opinion focusing primarily on the ban on Indiana physicians assisting minors in obtaining treatment in other states, saying in part:

The majority opinion holds that, insofar as the aiding and abetting provision regulates speech, it reaches only unprotected speech—either speech integral to unlawful conduct or speech incidental to regulated conduct. Our law, however, defies both conclusions....

So, Indiana can realize its objectives by enacting a law and punishing those who violate it; it cannot accomplish its objectives by punishing speech that somehow relates to the purpose of a state law, yet amounts to no criminal or civil primary violation.

ADF issued a press release announcing the decision.

Texas Top Court Gives New Trial to Death Row Inmate Because of Trial Judge's Antisemitism

 In Ex Parte Halprin, (TX Ct. Crim. App., Nov. 6, 2024), the Texas Court of Criminal Appeals in a 6-3 decision granted a new trial to one of the so-called Texas Seven prison escapees who had been sentenced to death for murdering a police officer during the robbery of a sporting goods store shortly after their escape. The court concluded that the trial judge, Vickers Cunningham, was biased against Halprin because Halprin is Jewish.  The court said in part:

The evidence adduced in these habeas proceedings concerning Halprin’s judicial bias claim consists primarily of anti-Semitic statements attributed to Cunningham that, according to the witnesses, he made in generally private or semi-private settings rather than from the bench in open court or in chambers....

The uncontradicted evidence supports a finding that Cunningham formed an opinion about Halprin that derived from an extrajudicial factor—Cunningham’s poisonous anti-Semitism. Cunningham’s references to Halprin are not to “the fucking [murderer]” or “the filthy [criminal]” or “the [murderer] Halprin,” which might be fairly said to derive from the evidence presented at Halprin’s capital murder trial. Rather, Cunningham’s derogatory references to Halprin are expressly tied to Halprin’s Jewish identity.

Judge Richardson, joined by Judges Newell and Walker filed a concurring opinion, saying in part:

This is not a case in which the action of a trial judge may just “look bad.” This is not a case in which there is merely the “appearance of impropriety.” This is a case where a person’s lifelong hatred and prejudice against Jews made him unfit to preside over this case. And that toxic viewpoint runs counter to our concept of the Rule of Law because “[o]ur law punishes people for what they do, not who they are.”

Thus, no precedent, rule, technicality, or excuse can justify allowing such a demonstrably biased person to constitutionally stand in judgment over a member of a class of people the judge espouses to hate. It violates our fundamental sense of fair play and the Supreme Court’s motto “Equal Justice Under Law” beneath which our precedent arises.

Judge Yeary filed a concurring opinion saying that the majority reached the correct result but used the wrong standard to reach it.  He said in part: 

... [T]he question is “not whether the judge is actually, subjectively biased, but whether the average judge in [the challenged judge’s] position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”

Presiding Judge Keller, joined by Judges Keel and Slaughter filed a dissenting opinion saying in part:

The Court misunderstands the law regarding disqualification of a judge for bias.  It grants Applicant relief on the basis of the trial judge’s personal views and out-of-court comments about Applicant’s religion.  But under Supreme Court precedent, in order for a judge who holds derogatory views about a defendant’s religion to be disqualified, there must be a showing that the judge’s conduct in the criminal proceedings was influenced by his derogatory views.  What a judge does can violate the Constitution.  What he thinks cannot.  Nothing in the record on habeas or at trial shows, or even suggests, that the trial judge’s views influenced how he conducted the criminal proceedings in this case.

Texas Public Radio and AP report on the decision. [Thanks to Thomas Rutledge for the lead.]

Court Enjoins Disciplining of Doctors Performing Certain Abortions in Tennessee

In Blackmon v. State of Tennessee, (TN Chanc. Ct., Oct. 17, 2024), a Tennessee state Chancery Court issued a temporary injunction barring the state from instituting disciplinary proceedings against plaintiff physicians for performing abortions in any of four specified medical situations. The court found that plaintiffs are likely to succeed in their challenges under the right to life, liberty or property and the equal protection clauses of the state constitution and in their vagueness challenge. The court said in part:

The question remains ... whether the Medical Necessity Exception, as currently written, serves a compelling state interest and is narrowly tailored to achieve that goal.  Given the range of interpretations proffered through the expert declarations ..., the Court finds that the issue of which conditions, and the timing of when they present and escalate to life-threatening conditions, constitute medical emergencies within the Medical Necessity Exception is demonstrably unclear, notwithstanding the “reasonable medical judgment’ of the physician standard set forth in the Exception.  This lack of clarity is evidenced by the confusion and lack of consensus within the Tennessee medical community on the circumstances requiring necessary health- and life-saving abortion care.  The evidence presented underscores how serious, difficult, and complex these issues are and raises significant questions as to whether the Medical Necessity Exception is sufficiently narrow to serve a compelling state interest....

Plaintiff Patients, as pregnant women, claim they are similarly situated to non-pregnant women who seek and are in need of emergency medical care.  Yet because of the criminal abortion statute, pregnant women are treated differently than non-pregnant women because their access to emergency medical care is restricted....

While the court enjoined disciplinary proceedings, it held that it lacked jurisdiction to enjoin enforcement of the state's criminal abortion statute. The Hill reports on the decision. [Thanks to Thomas Rutledge for the lead.]

11th Circuit Denies En Banc Rehearing in Alabama's Ban on Gender-Affirming Treatment of Minors

In August 2023, the U.S. 11th Circuit Court of Appeals vacated a district court's preliminary injunction against Alabama's ban on hormone blockers and cross-sex hormones to treat minors with gender dysphoria, holding that the statute is only subject to rational basis review. (See prior posting.) Now, in Eknes-Tucker v. Governor of the State of Alabama, (11th Cir., Aug. 28, 2024), a majority of the 11th Circuit voted not to grant an en banc rehearing in the case. However, that decision generated a series of concurring and dissenting opinions spanning 173 pages.

Chief Judge William Pryor concurred in the denial but filed an opinion to respond to the dissenting opinion of Judge Jordan. The Chief Judge said in part:

The doctrine of substantive due process does violence to the text of the Constitution, enjoys no historical pedigree, and offers judges little more than shifting and unilluminating standards with which to protect unenumerated rights.... [U]nelected judges with life tenure enjoin enforcement of laws enacted by elected representatives following regular procedures, all in the name of fundamental rights that the Constitution never names but allegedly secures....

Judge Lagoa filed a concurring opinion, saying in part:

The propriety of the medications at issue is a quintessential legislative question, not a constitutional one.  Judges Jordan and Rosenbaum would have this Court end the debate by judicially fencing off these questions from state legislatures.  But our experience with the intersection of the Constitution and these types of issues suggests that this is a misguided effort. See Roe v. Wade.... 

Judge Rosenbaum’s and Judge Wilson’s dissents also disagree with our equal-protection holding, arguing that the Act discriminates based on sex and transgender status....  But the Act applies equally to everyone regardless of their sex or transgender status.  And transgender status is not a classification protected by the Equal Protection Clause.

Judge Wilson, joined by Judge Jordan, filed a dissenting opinion, saying in part:

This case presents numerous questions “of exceptional importance” worthy of en banc review.... Seeing that this case implicates the contours of substantive due process, fundamental rights, and equal protection, it is difficult to envision issues of greater importance.

Judge Jordan, joined by Judges Rosenbaum and Jill Pryor, filed a dissenting opinion, saying in part:

In this case, the panel characterized the liberty interest in part by asking whether there is a history of recorded uses of transitioning medications for transgender individuals (e.g., puberty blockers and cross-sex hormone treatments) as of 1868, when the Fourteenth Amendment was ratified....

The panel’s decision necessarily means that the fundamental right of parents to obtain medical treatment for their children extends only to procedures and medications that existed in 1868, and not to modern advances like the polio vaccine...,, cardiac surgery..., organ transplants..., and treatments for cancer like radiation ... and chemotherapy...

Judge Rosenbaum, joined by Judge Jill Pryor and in part by Judge Jordan, filed a dissenting opinion, saying in part:

... [P]arents’ liberty interest in directing that their child receive well-established, evidence-based, non-experimental medical treatment, subject to medically accepted standards and a physician’s independent examination and medical judgment, is a fundamental right, “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed”....

We ... receive no medical training in law school.  We don’t go through residencies or fellowships.  We don’t engage in medical research.  And we don’t practice medicine at all.  In fact, many of us went into the law because, among other reasons, we weren’t good at math or science.  Given our lack of medical expertise, we have no business overriding either the medical consensus that transitioning medications are safe and efficacious or clinicians’ ability to develop individualized treatment plans that follow the governing standards of care....

... [T]he Act discriminates based on two quasi-suspect classifications: sex and transgender status.  So either classification requires us to apply intermediate scrutiny.  When we do that, the Act cannot survive.  

Organizations Promoting Abortion Pill Reversal Sue New York Attorney General

Three anti-abortion organizations that promote abortion-pill reversal this week filed suit in a New York federal district court against New York Attorney General Letitia James. The complaint (full text) in Summit Life Outreach Center, Inc. v. James, (WD NY, filed 8/7/2024), alleges in part:

In a blitz attack that month, James mailed boilerplate notices-of-intention-to-sue (NOIs) to eleven New York-based pregnancy help organizations (PHOs) and the nonprofit operator of the national Abortion Pill Reversal Network. The NOIs alleged (without evidence) that recipients’ truthful noncommercial statements about APR constituted commercial fraud under two state statutes....

Plaintiffs in this action, pro-life organizations whose mission is informed by their religious conviction that abortion is the killing of an innocent human being, are not parties to that state court suit. But James’ years-long campaign of intimidation against pro-lifers creates considerable “risk of catastrophic harm” that Plaintiffs could soon suffer if (and highly likely when) they are targeted by similar lawfare over their own similar pro-APR communications.... Plaintiffs indeed already are being harmed because the litigative sword of Damocles that hangs above their heads has chilled their speech and forced them to discontinue communicating the science of APR.

Plaintiffs thus are compelled to file this suit to defend their rights to free speech, free exercise of religion, and due process under the First and Fourteenth Amendments. They seek declaratory and injunctive relief, and other such relief as the Court may deem just and equitable, so they can continue speaking about APR and refocus their attention on women in need.

 Thomas More Society issued a press release announcing the lawsuit.

Florida Restrictions on Gender-Affirming Care Are Unconstitutional

In Doe v. Ladapo, (ND FL, June 11, 2024), a Florida federal district court in a 105-page opinion held unconstitutional many of the provisions in Florida law that ban gender-affirming care for minors and regulate it for adults. The court, analyzing equal protection and substantive due process challenges, said in part:

The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear….

For some, the denial that transgender identity is real—the opposition to transgender individuals and to their freedom to live their lives—is not different in kind or intensity from the animus that has attended racism and misogyny, less as time has passed but still today. And some transgender opponents invoke religion to support their position, just as some once invoked religion to support their racism or misogyny. Transgender opponents are of course free to hold their beliefs. But they are not free to discriminate against transgender individuals just for being transgender. In time, discrimination against transgender individuals will diminish, just as racism and misogyny have diminished. To paraphrase a civil-rights advocate from an earlier time, the arc of the moral universe is long, but it bends toward justice…..

This record includes overwhelming evidence that the House sponsors and a significant number of other House members were motivated by anti-transgender animus. This is clear from their own animus-based statements and from the failure of other members to call them out…..

Banning gender-affirming care for minors across the board in all circumstances, rather than appropriately regulating such care, is not sufficiently related to the legitimate state interest in safeguarding health.  

The ban on care for minors does not survive intermediate scrutiny….

[T]here are some, including the Governor and quite a few members of the Florida Legislature, who believe transgenderism—and thus gender-affirming care—is morally wrong. Enforcing this moral view is not, however, a legitimate state interest that can sustain this statute, even under rational-basis scrutiny….

[W]hether based on morals, religion, unmoored hatred, or anything else, prohibiting or impeding a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest…..

In addition to invalidating the ban on care for minors, the court also struck down various unnecessary limits placed on gender affirming care for adults.

The Hill reports on the decision and says that the state will appeal it.

Louisiana Supreme Court: Revival of Barred Sex Abuse Claims Violates Priest's Rights Under State Constitution

 In Bienvenu v. Defendant 1, (LA Sup. Ct., March 22, 2024), the Louisiana Supreme Court in a 4-3 decision held that a 2021 Louisiana statute that revived child sex abuse claims that had previously been time barred violates the Louisiana Constitution. The statute gave victims a 3-year window to file claims. The court said in part:

Essentially, plaintiffs alleged they were sexually molested by a Roman Catholic priest at various times between 1971 and 1979.   At the time of the alleged abuse, plaintiffs ranged in ages from eight to fourteen.  

Defendants responded by filing several exceptions, including a peremptory exception of prescription, arguing that plaintiffs’ claims were subject to the general one-year liberative prescriptive period for delictual actions under former La. Civ. Code art. 3536(1)....

The definite nature of accrued prescription has been repeatedly recognized in our jurisprudence, which makes it clear that, unlike statutes of limitations at common law, under civilian principles, prescriptive periods that have accrued act to extinguish the civil obligation to which they apply....

Guided by Louisiana’s civil law tradition, we decline to upend nearly a half of a century’s jurisprudence that recognizes the unique nature of vested rights associated with liberative prescription, which inure to the benefit of both plaintiffs (protecting an accrued cause of action) and defendants (protecting a defense of accrued liberative prescription).  Therefore, despite the sickening  and despicable factual allegations in this case, we must conclude that La. R.S. 9:2800.9, as amended by the revival provisions, cannot be retroactively applied to revive plaintiffs’ prescribed causes of action.  To find otherwise would divest defendants of their vested right to plead prescription in violation of Art. I, Section 2 of the Louisiana Constitution.

However the court remanded the case for the trial court to determine whether the one-year prescriptive period had tolled.

Justice Crichton filed a concurring opinion, as did Justice Griffin.

Chief Justice Weimer dissented, saying in part:

Given Louisiana’s legitimate interest in protecting its citizens who were sexually abused as minors and in providing them with the ability to seek redress in the courts, and the narrowly tailored nature of the relief provided–the legislation revives, for a short period of time, for a narrow category of tort victims, actions otherwise prescribed–I would find that the revival provision is consistent with the due process guarantee.  Under the due process clause, no rights–not even fundamental ones–are absolute.  The due process clause simply offers protection from arbitrary and unreasonable action by the government.  The revival provision at issue is not arbitrary (in fact, in this case it is arguable that the “arbitrary and unreasonable” conduct was the alleged sexual abuse perpetrated upon children by those in society who were placed in positions of authority).  And, the provision has been demonstrated to have a substantial relationship to public safety, morals and welfare.

Justice Crain also filed a dissenting opinion. Justice McCallum dissented without opinion.

Balls and Strikes reported on the decision. [Thanks to Scott Mange for the lead.]

Court Finds Idaho's Ban on Gender Affirming Care for Minors Unconstitutional

In Poe v. Labrador, (D ID, Dec. 26, 2023), an Idaho federal district court issued a preliminary injunction barring enforcement of Idaho's recently enacted Vulnerable Child Protection Act which prohibits medical providers from surgically or chemically treating gender dysphoria in minors. The court held that because the statute discriminates on the basis of sex and transgender status, it is subject to heightened scrutiny under the equal protection clause, and found that the statute likely fails that test, saying in part:

Generally, the State Defendants say the legislature’s purpose in passing HB 71 was to protect vulnerable children from the dangers of unproven medical and surgical treatments. At a general level, safeguarding the physical wellbeing of children is of course important.... But in this case, the Court finds that the asserted objective is pretextual, given that HB 71 allows the same treatments for cisgender minors that are deemed unsafe and thus banned for transgender minors. That is, the medications and procedures that are used in gender-affirming medical care (such as puberty blockers, hormones, and surgeries) are used to treat cisgender adolescents for other purposes. But rather than targeting the treatments themselves, HB 71 allows children to have these treatments—but only so long as they are used for any reason other than as gender-affirming medical care....

The court also found the likelihood of success on plaintiffs' due process claims, saying in part:

[T]his Court easily concludes that the parent plaintiffs enjoy a fundamental right to seek a specific form of medical treatment for their children, which would include the gender-affirming medical care banned by HB 71.

The court however did dismiss plaintiffs' unusual claim against the publisher of Idaho's annotated statutes. Plaintiffs had argued that by failing to include annotations to federal cases that would indicate that Idaho's statute is unconstitutional, the publishers violated plaintiffs' due process rights.

Los Angeles Blade reports on the decision.

Virginia Supreme Court Rules For Teacher Who Refused To Use Student's Preferred Pronouns

In Vlaming v. West Point School Board, (VA Sup. Ct., Dec. 14, 2023), the Virginia Supreme Court, in a 4-3 decision, held that a teacher who was fired after refusing for religious reasons to use masculine pronouns in referring to a biologically female student has a claim for violation of the free exercise provisions of the Virginia state Constitution. The majority, in a 73-page opinion, held that the Virginia Constitution requires greater accommodation than does the First Amendment of the U.S. Constitution when a neutral law of generally applicability conflicts with a religious belief.  The majority said in part:

[W]e hold that in the Commonwealth of Virginia, the constitutional right to free exercise of religion is among the “natural and unalienable rights of mankind,” ... and that “overt acts against peace and good order,”  correctly defines the limiting principle for this right and establishes the duty of government to accommodate religious liberties that do not transgress these limits.

The majority also held that plaintiff had adequately stated a claim under the Virginia Religious Freedom Restoration Act as well as a claim for violation of the free speech and due process provisions of the Virginia Constitution. The majority said in part:

Because the gravamen of Vlaming’s free-speech claims involves an allegation of compelled speech on an ideological subject, we hold that the circuit court erred when it dismissed Vlaming’s free-speech claims....

At the time that the School Board fired Vlaming, no clearly established law — whether constitutional, statutory, or regulatory — put a teacher on notice that not using third-person pronouns in addition to preferred names constituted an unlawful act of discrimination against transgender students. If the government truly means to compel speech, the compulsion must be clear and direct.

Finally the majority concluded that plaintiff adequately alleged that the School Board had breached his contract.

Justice Powell, joined by Chief Justice Goodwyn concurred in part, saying in part:

I write separately to clarify that, in my opinion, the proper test to evaluate a free exercise claim under Article I, Section 16 of the Virginia Constitution is traditional strict scrutiny as expressed in Sherbert v. Verner.... I disagree with the majority’s conclusion “that ‘overt acts against peace and good order,’ ... correctly defines the limiting principle for this right [in Article I, Section 16] and establishes the duty of the government to accommodate religious liberties that do not transgress these limits.”

Justice Mann filed a 64-page opinion dissenting in part. He said in part:

I dissent from the majority’s analysis and interpretation of Article I, Section 16.... The majority’s proposed limiting principle for the free exercise provision ... is not supported by the plain words of our Constitution, its history, our legal precedent, or legislative action of the General Assembly. I also dissent with respect to the majority’s rulings on Vlaming’s free speech and due process claims. Regarding Vlaming’s free-exercise claim, the majority establishes a sweeping super scrutiny standard with the potential to shield any person’s objection to practically any policy or law by claiming a religious justification for their failure to follow either.,,, 

Where a claimant alleges that the government was hostile towards his religious free exercise or that the government did not neutrally apply the law, the reviewing court should apply strict scrutiny to determine whether the government’s enforcement was narrowly tailored to achieve a compelling state interest....

As for Vlaming’s free speech and due process claims, the facts speak for themselves. Under well-established federal precedent, Vlaming’s allegations as pleaded establish that Vlaming was (1) a public employee engaged in curricular speech pursuant to his official job duties, (2) not speaking as a private citizen on a matter of public concern; and (3) had ample notice that his refusal to use Doe’s preferred pronouns was a violation of the School Board’s policies, and the School Board provided him an opportunity to be heard on his discipline.... 

Justice Powell and Chief Justice Goodwyn joined the portions of Justice Mann's opinion that relate to the Virginia Religious Freedom Restoration Act, and the free speech and due process provisions of the Virginia Constitution.

Inclusion of "Caste" In Antidiscrimination Policy Does Not Violate Establishment Clause

In Kumar v. Koester, (CD CA, Nov. 21, 2023, a California federal district court rejected an Establishment Clause challenge to the inclusion of "caste" in California State University's Discrimination, Harassment and Retaliation Policy. The Policy includes in its anti-discrimination ban a prohibition on discrimination based on "Race or Ethnicity (including color, caste, or ancestry)". Plaintiffs-- two Hindu professors-- contend that the Policy defines Hinduism as including a caste system and amounts to government disapproval of Hinduism.  In rejecting these contentions, the court said in part:

Plaintiffs argue that the CFA [California Faculty Association] and CSSA [California State Student Association] Resolutions demonstrate anti-Hindu sentiments. And because Defendant considered its stakeholders' input when amending the Policy, Defendant, in turn, expressed disapproval of Hinduism when it included the word "caste" in the Policy.

Plaintiffs' argument fails for two reasons. First, Plaintiffs have not demonstrated that CFA or CSSA speak for Defendant.... Plaintiffs do not offer any evidence that the Workgroup inappropriately considered the two Resolutions amongst the large amount of feedback it received from a wide array of CSU stakeholders....

Second, Plaintiffs' argument fails because the resolutions do not express anti-Hindu sentiments. To be sine, the Resolutions clearly denounce caste discrimination that occurs in South Asian societies and CFA's resolution explicitly references the presence of caste discrimination in "the Hindu religion."... But CFA's resolution does not link caste discrimination to Hinduism exclusively.... [Its] description of "caste" recognizes caste discrimination as a social ill that permeates South Asian culture and society....

Just as Plaintiffs fail to show that the Policy disapproves of Hinduism, they also fail to demonstrate that the Policy defines Hindu doctrines.

The court also dismissed plaintiffs' due process challenges for lack of standing. 

Court Enjoins Idaho's Ban on Aiding a Minor in Obtaining an Abortion

In Matsumoto v, Labrador I, (D ID, Nov. 8, 2023), an Idaho federal district court issued a preliminary injunction against enforcing Idaho Code Section 18-623 which provides in part:

An adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion ... or obtains an abortion-inducing drug for the pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking.

The court said in part:

The Court finds Idaho Code Section 18-623 is a content-based regulation of protected speech and expression. The statute plainly regulates expression based on content by restricting adults from engaging in activities that advocate, assist, and communicate information and support to pregnant minors about legal abortion options....

Here, Idaho Code Section 18-623 fails to provide fair notice or ascertainable standard of what is and what is not abortion trafficking. The terms “recruiting, harboring, or transporting” are undefined, overbroad, and vague, making it impossible for a reasonable person to distinguish between permissible and impermissible activities....

In Matsumoto v. Labrador II, (D ID, Nov. 8, 2023), the same court refused to dismiss plaintiffs' First Amendment speech and 14th Amendment vagueness challenges as well as their right to interstate travel claims. However the court did dismiss plaintiffs right to intrastate travel challenge.

Reuters reports on the preliminary injunction.

Supreme Court Review Sought in Tennessee's Ban on Medical Treatment of Minors for Gender Dysphoria

 A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in L.W. v. Skrmetti, (Sup. Ct., filed 11/1/2023). In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision, reversed a preliminary injunction issued by a district court in a challenge to Tennessee's ban on chemical, hormonal or surgical treatment of minors for gender dysphoria. The majority rejected due process and equal protection challenges to the state law. (See prior posting.) ACLU issued a press release  announcing its filing of the petition seeking review of the 6th Circuit's decision.

School Enjoined from Social Transitioning of Students Without Parental Consent

In T.F. v. Kettle Moraine School District, (WI Cir. Ct., Oct. 3, 2023), a Wisconsin state trial court enjoined a school district from allowing or requiring staff to refer to students using a name or pronouns at odds with the student’s biological sex, while at school, without express parental consent. The court said in part:

This Court has before it what modern society deems a controversial issue – transgenderism involving minors within our schools. Clearly, the law on this issue is still developing across the country and remaining largely unsettled. However, this particular case is not about that broad controversial issue. This particular case is simply whether a school district can supplant a parent’s right to control the healthcare and medical decisions for their children. The well established case law in that regard is clear – Kettle Moraine can not. The School District abrogated the parental rights of B.F. and T.F. on how to medically treat A.F. when the district decided to socially affirm A.F. at school despite B.F. and T.F. requesting it does not. Through its policy of disregarding parental wishes on a medical or health related decision and with how fast questioning ones gender can arise, P.W. and S.W. are at real risk of being harmed by the current School District policy. 

The current policy of handling these issues on a case-by-case basis without either notifying the parents or by disregarding the parents wishes is not permissible and violates fundamental parental rights.

The Freeman reports on the decision.

Expanded Protection of Utah Lands Did Not Violate Establishment Clause

In Huck v. United States, (D UT, Sept. 21, 2023), a Utah federal district court rejected Establishment Clause, equal protection, due process and other challenges to Congress' 2019 designation of certain public lands in Utah as wilderness areas. The designation resulted in the lands being subject to more stringent use restrictions, including a ban on motor vehicles. Plaintiffs alleged that the designation was done to support Earth-religions and their beliefs regarding the ‘sacredness’ of public lands, in violation of the Establishment Clause. The court said in part:

 Given the recency of the Kennedy v. Bremerton School District decision, there is limited case law interpreting and applying the Supreme Court’s new [Establishment Clause] standard....

Recognizing these are relatively unchartered waters, the court considers Plaintiffs’ challenge with an eye toward the historical practice and understanding of the Establishment Clause and federal public lands management. While the concept of designated wilderness areas and motor vehicles might have seemed outlandish to the Founding Fathers, there is substantial legal authority supporting the federal government’s historically broad authority to designate public lands and restrict the public’s access to them. These actions, without more, do not raise the specter of government coercion of religious practices or observances....

Similarly, Plaintiffs have not plausibly alleged BLM’s motor vehicle restrictions violate “governmental neutrality between religion and religion, and between religion and nonreligion.”

The court also rejected plaintiffs' equal protection claim, saying in part:

Though Plaintiffs speculate that “[t]he BLM (as well as other . . . agencies) [conspired] with Earth-religionists [to] . . . deprive the aged, disabled or handicapped . . . from being able to access and travel upon many of the public lands,” these conclusory allegations—or speculations—fall short of satisfying Plaintiffs’ burden of alleging that the challenged actions were driven by discriminatory intent. On the contrary, Plaintiffs stress that the Dingell Act and motor vehicle restrictions were the result of the Earth-religionists’ efforts to “preserve and protect ‘Gaia’ or ‘Mother Earth,’” rather than an attempt to hinder the elderly or disabled.

Coach Sues Over Dismissal for His Remarks About Transgender Athletes

Suit was filed this week in a Vermont federal district court by a high school snowboarding coach who was dismissed because of a comment he made regarding a transgender woman on a team that would be competing against his female high school team. The school's notice of termination (Exhibit 8 in Complaint) alleges that the coach used "disparaging names" that created "an objectively offensive environment and constituted harassment based on gender identity...." In the Complaint (full text) in Bloch v. Bouchey, (DD VT, filed 7/17/2023), the coach however alleged in part:

3. Coach Bloch is also a practicing Roman Catholic who believes that God creates males and females with immutable sex. His understanding of science complements his religious beliefs. Coach Bloch believes, based on scientific evidence, that there are only two sexes, which are male and female, and that sex is determined by a person's chromosomes. 

4. But Coach Bloch's respectful expression of his beliefs contradicted the prevailing orthodoxy of the Defendant Vermont state officials, school district, and superintendent. So, Defendant Superintendent Sherry Sousa terminated him and barred him from future employment in the school district. 

5. On February 8, 2023, Coach Bloch and his team were waiting in the lodge for a competition to start. That day, his team was to compete against a team that had a male snowboarder who identifies as a female and competes against females. During downtime in the lodge, Coach Bloch overheard a conversation between two of his athletes about that male competing against females. 

6. Coach Bloch joined the conversation to offer that people express themselves differently and that there can be masculine women and feminine men. 

7. But he affirmed that as a matter of biology, males and females have different DNA, which causes males to develop differently from females and have different physical characteristics. Coach Bloch discussed that biological differences generally give males competitive advantages in athletic events. 

8. The conversation was respectful among all parties and lasted no more than three minutes. It took place entirely outside the presence of the transgender-identifying snowboarder. 

9. Coach Bloch's team and the team with the male who identifies as a female competed without incident. After the competition, the two teams and their coaches, including Coach Bloch, shared a bus home.

The complaint goes on to allege that the school was acting pursuant to Vermont's Harassment, Hazing and Bullying Law. It contends that the HHB Law and policies under it violated the coach's free speech rights, including the 1st Amendment's ban on viewpoint discrimination, prior restraints and overbreadth. It also alleges due process violations.  ADF issued a press release announcing the filing of the lawsuit.

Iowa Trial Court Temporarily Enjoins State's New Heartbeat Abortion Ban

In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Dist. Ct., July 17, 2023), an Iowa state trial court issued a temporary injunction barring enforcement of Iowa's new heartbeat abortion ban. The court held that a decision of the Iowa Supreme Court in 2022 left the federal undue burden test as the controlling test in Iowa abortion cases. The trial court said in part:

When the undue burden standard is applied, it is readily apparent that the Petitioners are likely to succeed on their claim that H.F.732 violates the Due Process clause, article I, section 9 of the Iowa Constitution.

The court's decision was complicated by the fact that in 2018, Iowa passed a similar heartbeat law which was enjoined by a trial court. That injunction remained in place when last month the Iowa Supreme Court deadlocked 3-3 in an appeal of that decision. In yesterday's decision by the trial court, the temporary injunction had one exception. The court said:

The court believes it must follow current Iowa Supreme Court precedent and preserve the status quo ante while this litigation and adversarial presentation which our Supreme Court has invited moves forward. 

However, as the Governor has now signed H.F. 732 into law, the court should except from that status quo, section 2, paragraph 5 of H.F. 732, directing the Iowa Board of Medicine to adopt rules pursuant to Chapter 17A. Should the injunction entered today ultimately be dissolved, it would only benefit all involved, patients and providers alike, to have rules in place to administer the law.

Iowa ACLU issued a press release announcing the decision.

6th Circuit Stays Injunction Against Tennessee's Ban on Treatment of Transgender Youth

In L.W. v. Skrmetti, (6th Cir., July 8, 2023), the U.S. 6th Circuit Court of Appeals in a 2-1 decision stayed a district court's preliminary injunction against Tennessee's ban on providing puberty blockers and hormone therapy for minors suffering from gender dysphoria. Chief Judge Sutton's majority opinion first held that the district court had abused its power by issuing a state-wide injunction in the case. It went on to hold that plaintiffs are unlikely to prevail on their due process or equal protection challenges, saying in part:

Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field....

Parents, it is true, have a substantive due process right “to make decisions concerning the care, custody, and control of their children.”.... But the Supreme Court cases recognizing this right confine it to narrow fields, such as education ... and visitation rights.... No Supreme Court case extends it to a general right to receive new medical or experimental drug treatments.....

Gender-affirming procedures often employ FDA-approved drugs for non-approved, “off label” uses. Tennessee decided that such off-label use in this area presents unacceptable dangers.... Many medical professionals and many medical organizations may disagree. But the Constitution does not require Tennessee to view these treatments the same way as the majority of experts or to allow drugs for all uses simply because the FDA has approved them for some....

Equal protection.... The Act bans gender-affirming care for minors of both sexes. The ban thus applies to all minors, regardless of their biological birth with male or female sex organs. That prohibition does not prefer one sex to the detriment of the other.....

The plaintiffs separately claim that the Act amounts to transgender-based discrimination, violating the rights of a quasi-suspect class. But neither the Supreme Court nor this court has recognized transgender status as a quasi-suspect class. Until that changes, rational basis review applies to transgender-based classifications....

These initial views, we must acknowledge, are just that: initial. We may be wrong. It may be that the one week we have had to resolve this motion does not suffice to see our own mistakes. In an effort to mitigate any potential harm from that possibility, we will expedite the appeal of the preliminary injunction....

Judge White dissented in part, agreeing that the injunction was too broad, but concluding that plaintiffs would likely succeed on their Equal Protection challenge because the law discriminates on the basis of sex.

Politico reports on the decision.

Football Coach Can Proceed on Some Claims Against University After Termination for Refusing Covid Vaccine

In Rolovich v. Washington State University, (ED WA, May 30, 2023), a Washington federal district court refused to dismiss failure to accommodate and breach of contract claims by the head football coach of Washington State University who was terminated after he refused to comply with the state's Covid vaccine mandate. Discussing plaintiff's Title VII failure to accommodate claim, the court said in part:

Plaintiff’s claim that his Catholic faith informed his decision not to receive the COVID-19 vaccine is sufficient at the pleading stage to meet the prima facie element that he has a bona fide religious belief.... Plaintiff has adequately pleaded the first element of the prima facie case for a failure to accommodate claim. Defendant does not challenge the remaining elements of Plaintiff’s prima facie case....

Defendant asserts that Plaintiff’s accommodation request would have resulted in increased travel costs, harm to recruitment and fundraising efforts, and damage to WSU’s reputation and donor commitments, in addition to an increased risk of exposure to COVID-19 to student athletes and other coaching staff....

While these claims of undue hardship may be supported by evidence not presently before the Court, they are insufficient on their own to support a finding that Plaintiff’s accommodation would have imposed an undue hardship....

The court concluded that the WSU Athletic Director was entitled to qualified immunity as to the coach's free exercise and due process claims. USA Today reports on the decision.

Judge's Religious Comments Did Not Violate Defendant's Rights

 In State of Ohio v. Loftis, (OH App., May 19, 2023), an Ohio state appellate court held that a judge's references to religion during a sentencing hearing for defendant who was convicted of sexual battery did not violate defendant's due process rights or the Establishment Clause. During the sentencing hearing, the trial court judge said in part:

... [T]he diminished influence or role of organized churches and faith or religion in the world, that whole diminishing concept isn’t boding well for the community. No surprise maybe if you read Revelation, if you do Biblical prophecy, you are all going to end up in a big dumpster fire at some point in time, so the trend is exactly what we are seeing....

The statutes, the law, every social moray[,] every religious system at least in terms of the New Testament years have said there is a duty to protect children. Some societies sacrifice children, but that’s thousands of years ago. It’s the other way around. Is that lost? Yeah, totally it’s lost. That doesn’t mean the expectation is not there....

The appellate court said in part:

 ... [T]he trial judge’s comments did not suggest that he was referencing his own religious beliefs as a guideline for his sentencing decision. Instead, his comments were limited to espousing his belief that the lack of a religious foundation leads to improper behavior. 

More importantly, we conclude that the trial court complied with the applicable provisions of R.C. Chapter 2929. The record affirmatively demonstrates that the trial court relied upon the proper statutory factors....

7th Grader Sues Over School's Hate Speech Dress Code

Suit was filed yesterday in a Massachusetts federal district court challenging the Middleborough school district's Dress Code which provides:

Clothing must not state, imply, or depict hate speech or imagery that target groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.

The complaint (full text) in Morrison v. Town of Middleborough, (ED MA, filed 5/17/2023), alleges that a 7th-grader's free speech rights were violated when he was not permitted to attend classes wearing a T-shirt carrying the message, "There are only two genders". Two weeks later he came to school wearing a shirt with the message, "There are censored genders". He was also barred from wearing this shirt.  The complaint alleges in part:

101. As Defendants interpret their Speech Policy, some viewpoints on the topic of “gender identity or expression” are permitted while some viewpoints on the same topic are prohibited. In particular, speech expressing the viewpoint that there are only two genders is prohibited, while speech expressing the viewpoint that gender is fluid and is on a spectrum is permitted....

135. Defendants’ censorship of Liam’s shirts while permitting shirts and other apparel with different messages on related topics is viewpoint discrimination, which is unconstitutional in any type of forum....

153. The Due Process Clause of the Fourteenth Amendment prohibits the government from censoring speech pursuant to vague standards that grant enforcement officials unbridled discretion.

154. The arbitrary determination by school officials of what is and is not “hate speech,” what speech “targets” a specific group, or what speech is “unacceptable to community standards” violates this norm.

ADF issued a press release announcing the filing of the lawsuit.