On July 21, federal judges in Arkansas and West Virginia issued preliminary injunctions against the enforcement of anti-transgender state laws while the parties litigate over statutory and constitutional challenges to the laws. Issuing such preliminary injunctions requires the judges to determine that the plaintiffs are likely to win their cases.
District Judge James M. (Jay) Moody, Jr., temporarily blocked a law that was enacted over a veto by Arkansas Governor Asa Hutchinson. The law, which was set to go into effect on July 28, would have made Arkansas the first state to prohibit doctors from providing gender-confirming hormone treatment or surgical procedures or puberty-blocking treatment to anyone under 18 years of age. The law also prohibits doctors from referring minors to other health care providers to receive such treatment.
In West Virginia, District Judge Joseph R. Goodwin temporarily blocked the enforcement of a state law barring individuals assigned male at birth from competing in female athletic competitions sponsored by public schools, colleges, or universities in the state, but the order applies only to the plaintiff in the case, Becky Pepper-Jackson, a transgender girl who was informed that because of the recently-enacted law she would not be able to compete as a girl in middle school cross country races. The law was signed into effect on April 28 and is one of several such state laws enacted recently. The lawsuit, brought on her behalf by Lambda Legal and the ACLU, does not pose a facial challenge to the law, but argues that it is invalid as applied to her.
The first state law banning transgender girls from athletic competition, passed by Idaho, was declared illegal by a federal district court last year, and the state’s appeal is now pending before a three-judge panel of the US Court of Appeals for the Ninth Circuit.
Judge Moody, who was appointed to the court by President Barack Obama, ruled from the bench after hearing lawyers’ arguments on July 21, announcing his reasoning without issuing a written opinion.
The six plaintiffs in the case, represented by the ACLU and a large team of cooperating attorneys from Sullivan & Cromwell, LLP, and local Arkansas counsel, are transgender youths who have been undergoing treatments that would be cut off as of July 28 if the preliminary injunction had not been issued. Testimony about the impact this would have on the plaintiffs and others in their situation weighed heavily on Judge Moody, who said, “To pull this care midstream from these patients, or minors, would cause irreparable harm.”
According to an Associated Press report of a news conference held after Judge Moody’s decision was announced, lead plaintiff Dylan Brandt, a 15-year old transgender boy, said “This care has given me confidence that I didn’t know I had.” ACLU attorneys argued to the court that the impending implementation of the law was forcing families with transgender children to consider moving to other states so that their children could continue treatment.
Reacting to the court’s ruling, Governor Hutchinson issued a statement explaining that the reasons for his veto of the bill were the same that the court relied upon to stay its implementation. “The act was too extreme and did not provide any relief for those young people currently undergoing hormone treatment with the consent of their parents and under the care of a physician,” he wrote. “If the act would have been more limited, such as prohibiting sex reassignment surgery for those under 18, then I suspect the outcome would have been different.”
Since the World Professional Association for Transgender Heath (WPATH) standards of care provide that such surgery should not be performed before age 18, such a law would have been quite unnecessary, as the medical profession and most courts have accepted the WPATH standards as the authoritative guidelines for providing gender-affirming care for transgender people.
The non-surgical treatments prohibited by the Arkansas statute that are actually provided to minors under 18 are reversible in their effects, but Republican proponents of the measure in the legislature, as well as lead defendant Leslie Rutledge, the state’s Attorney General, have argued that the measure was necessary to limit “permanent, life-altering sex changes to adolescents.”
The state had argued that the measure fell within the traditional authority of the government to regulate the practice of medicine and was directed at the procedures involved, not specifically at transgender minors. On its face, they argued, the statute did not single out transgender minors, but prohibited the procedures for all minors, regardless of their gender identity.
The AP report of the hearing said that the judge “appeared skeptical of the state’s argument that the ban was targeting the procedure, not transgender people. For example, he questioned why a minor born as a male should be allowed to receive testosterone but not one who was born female.” Testosterone is sometimes administered to cisgender boys who suffer from hormone deficiencies delaying their development of secondary sex characteristics in puberty.
“How do you justify giving that to one sex but not the other and not call that sex discrimination?” asked the judge.
The court received amicus briefs from a long list of professional medical associations supporting the plaintiffs, as well as the Arkansas State Chamber of Commerce and the Walton Family Foundation. The Biden administration also filed a Statement of Interest supporting the plaintiffs. On the other side, amicus briefs from 17 Republican state attorneys general asked the court to allow the law to go into effect. Similar bills are under consideration or have passed in several of their states.
Attorney General Rutledge announced that she would appeal the preliminary injunction ruling to the Eighth Circuit Court of Appeals, where she is almost certain to obtain a three-judge panel with a Republican-appointed majority, because out of the 11 active judges on the Eighth Circuit, only one was appointed by a Democratic president. (Donald Trump appointed four judges to the Eighth Circuit.) Even if a three-judge panel were to leave the preliminary injunction in place, Rutledge would have a good shot at getting a reversal from an en banc rehearing, but for now, this ruling is an important victory albeit not a precedent embodied in a published opinion.
Judge Goodwin in West Virginia, who was appointed to the court by President Bill Clinton, had the easier task, since he was not the first to rule on a challenge to a law banning transgender girls from competing in women’s athletics. Furthermore, both the Obama administration and the Biden administration had issued opinions on the subject that supported the plaintiffs’ position. West Virginia is one of about half a dozen states that have passed such laws. In many cases, the laws passed even though there were no transgender girls seeking to compete in those states, supporting the contention that Republican state legislators are pressing this issue mainly to pander to social conservative constituents.
Judge Goodwin found that the plaintiffs are likely to prevail both under the Equal Protection Clause of the 14th Amendment and under Title IX of the Education Amendments of 1972, a law forbidding sex discrimination by educational institutions that receive federal money.
“Essentially, the State contends that the Equal Protection Clause is not being violated because B.P.J. is being treated the same under this law as those she is similarly situated with: ‘biological males’” as defined in the statute, wrote the judge. “But this is misleading,” he responded. “Plaintiff is not most similarly situated with cisgender boys; she is similarly situated to other girls. Plaintiff has lived as a girl for years. She has competed on the all-girls cheerleading team at her school. She changed her name to a name more commonly associated with girls. And of the girls at her middle school, B.P.J. is the only girl who will be prevented from participating in school-sponsored athletics. Here, there is an inescapable conclusion that [the law] discriminated on the basis of transgender status.”
West Virginia is within the Fourth Circuit, so the court was bound to apply “heightened scrutiny,” the standard adopted by the Fourth Circuit in the case of Gavin Grimm, a transgender boy suing his school district over its restroom policy. This means that the state has to provide an “exceedingly persuasive justification” for the law. The state said that its objective was to provide “equal athletic opportunities for girls,” but the court found that this statute was not “substantially related” to achieving that objective.
Judge Goodwin invoked NCAA and Olympic Committee policies recognizing that transgender women can fairly compete with cisgender women, and quoted testimony offered by Becky Pepper-Jackson’s expert witness that “there is a medical consensus that the difference in testosterone is generally the primary known driver of differences in athletic performance between elite male athletes and elite female athletes.” Since Pepper-Jackson, age 11, had been on puberty-blockers for over a year, she had not undergone puberty and thus had not enjoyed the “physical advantages” that pubescent boys experience as testosterone affects their growth and musculature.
Judge Goodwin found “unpersuasive” the contrary evidence introduced by the state. “Like Judge Nye in the District of Idaho,” he wrote, “I find this opinion unpersuasive. While that argument might be relevant to a facial challenge of the statute, it is irrelevant in this as-applied analysis. B.P.J. has not undergone endogenous puberty and will not so long as she remains on her prescribed puberty blocking drugs. At this preliminary stage, B.P.J. has shown that she will not have any inherent physical advantage over the girls she would compete against on the girls’ cross country and track teams.” He also noted that the law did not advance safety concerns argued by the state, that cisgender girls were at risk of harm competing physically with “biological males,” because track is not a contact sport.
Turning to Title IX, the court found that the same analysis applies, noting the Supreme Court’s ruling last year in Bostock v. Clayton County that discrimination against somebody for being transgender is “discrimination on the basis of sex” under Title VII, and that Title VII cases are generally relied on to interpret Title IX’s sex discrimination ban. The Office of Civil Rights of the US Department of Education recently published a formal interpretation in the Federal Register supporting the application of the Bostock ruling to Title IX.
Judge Goodwin found the other requirements for injunctive relief were easily satisfied. “Forcing a girl to compete on the boys’ team when there is a girls’ team available would cause her unnecessary distress and stigma,” he wrote, and “would also be confusing to coaches and teammates. And not only would B.P.J. be excluded from girls’ sports completely; she would be excluded because of who she is: a transgender girl.” He also found that it would be “clearly in the public interest to uphold B.P.J’s constitutional right to not be treated any differently from her similarly situated peers because any harm to B.P.J.’s personal rights is a harm to the share of American rights that we all hold collectively.”
“While this case is pending,” concluded Goodwin, “Defendants are enjoined from enforcing Section 18-2-25d against B.P.J. She will be permitted to sign up for and participate in school athletics in the same way as her girl classmates.”
An appeal by the state to the Fourth Circuit is unlikely to upset Judge Goodwin’s ruling. The Fourth Circuit’s latest decision in the Gavin Grimm case was issued less than a year ago, and Democratic appointees still make up a majority of the circuit bench, even counting Trump’s three appointees.
