Federal court blocks Georgia’s ban on gender-affirming care

Georgia Gov. Brian Kemp speaks during the Georgia Chamber Congressional Luncheon at The Classic Center, Aug. 8, 2023, in Athens, Ga. A federal judge in Atlanta has blocked Georgia from enforcing part of a new law that restricts doctors from prescribing hormone therapy to transgender people under the age of 18. Judge Sarah Geraghty granted a preliminary injunction on Sunday, Aug. 20.
Georgia Gov. Brian Kemp speaks during the Georgia Chamber Congressional Luncheon at The Classic Center, Aug. 8, 2023, in Athens, Ga. A federal judge in Atlanta has blocked Georgia from enforcing part of a new law that restricts doctors from prescribing hormone therapy to transgender people under the age of 18. Judge Sarah Geraghty granted a preliminary injunction on Sunday, Aug. 20.
Hyosub Shin/Atlanta Journal-Constitution via AP, file

A federal court in Atlanta issued a preliminary injunction on August 20, blocking SB 140, Georgia’s recently enacted ban on gender-affirming hormone treatment for minors, from being enforced while the parties litigate about the merits of the plaintiffs’ argument that it violates the 14th Amendment’s Equal Protection and Due Process clauses.

Georgia’s ban, signed by the governor on March 23, 2023, went into effect on July 1.

On June 29, four transgender minors, their parents, and an organization for the parents of transgender minors, filed a lawsuit claiming the law violates the 14th Amendment, and asked US District Judge Sarah E. Geraghty for a temporary restraining order to stop it from going into effect. However, Judge Geraghty decided that the state should be given an opportunity to defend the law before such a ruling. She held a conference on July 7 at which the parties agreed on an expedited hearing and briefing schedule so that the state would have a “meaningful opportunity to respond” to the lawsuit. The court held the hearing on August 10 and 11 and produced a lengthy opinion granting the preliminary injunction a little more than a week later.

As summarized by Judge Geraghty, the law provides that “irreversible procedures or therapies” shall not be performed in a licensed health care institution “on a minor for the treatment of gender dysphoria.” The law specifies two categories of prohibited treatment: first, “sex reassignment surgeries, or any other surgical procedures, that are performed for the purpose of altering primary or secondary sexual characteristics,” and second, “hormone replacement therapies.” The state’s Department of Community Health is directed with establishing “sanctions” that would be imposed on institutions providing such prohibited care, and the state’s Medical Board is directed to adopt rules and regulations for licensed physicians who could be subjected to administrative penalties for violating the prohibitions.

The law provides a list of “legislative findings,” all of which are essentially contrary to the evidence presented and accepted by federal courts in other states that have issued preliminary injunctions blocking bans on gender-affirming care for minors. By now, the resulting opinion by Judge Geraghty may seem “old hat,” since it closely resembles the decisions by those other courts, most notably in Alabama and Florida.

Nonetheless, Judge Geraghty had to go through the same exercise as those other courts, determining that the young plaintiffs, all of whom have been diagnosed with gender dysphoria but none of whom have begun taking puberty blockers of cross-sex hormones yet, have standing to challenge the law, as do their parents, and that the organization for parents of transgender minors has standing to sue on behalf of their members in Georgia. This included finding, at least preliminarily, that the plaintiffs would suffer an injury if the law continues to be enforceable while the lawsuit is pending, so it was important that the judge concluded that being forced to delay treatment recommended by their doctors would impose an injury on the minors.

Since the law has gone into effect, the plaintiffs’ initial motion for a temporary restraining order was moot, and the court analyzed this as a preliminary injunction motion, which was vigorously contested by the state. Each side offered three expert witnesses to address the validity of the legislative findings. The plaintiffs’ three experts were all physicians practicing state-of-the-art gender affirming care with years of experience in treating hundreds of patients. By contrast, as per the norm in these cases, the state’s experts lacked such expertise and experience, and one had published such outrageous statements in filings in an earlier case that the court refused to credit any of his testimony.

Judge Geraghty concluded that under 11th Circuit precedents the law is subject to “intermediate scrutiny” because it “draws distinctions based on both natal sex (that is, sex as identified at birth) and gender non-conforming, as the 11th Circuit has treated being transgender as not conforming to societal expectations about the congruence of natal sex and gender identity. Under this test, the “parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification for that action,” and must show that the law being challenged substantially advances the state’s justification.

Judge Geraghty specifically rejected the reasoning of the Sixth Circuit Court of Appeals in a Tennessee case, so far the only court to reject a ban to such a law. That court rejected the idea that the law discriminated based on sex, asserting that it merely “bans cross-sex hormones ‘for minors of both sexes, simply [saying] that a child — any child, male or female — cannot obtain hormone replacement to treat gender dysphoria.” In the Sixth Circuit’s opinion, since there was no sex discrimination, the law must be upheld if the state had a rational basis for passing it and is presumed be constitutional.

“To talk about SB 140 this way is merely to redescribe it in ostensibly neutral terms,” but it is inconsistent with how the 11th Circuit, which includes Georgia, has dealt with analyzing transgender cases. Judge Geraghty points out that SB 140 “places a special burden on transgender minors, like the minor plaintiffs, and it does so on the basis of their gender nonconformity.” In past cases, the 11th Circuit has ruled that discrimination because of gender non-conformity is a form of sex discrimination, so intermediate scrutiny must apply.

Reviewing the expert testimony, the court concluded that the state had failed to show at this stage of the litigation that SB 140 is “substantially related to an important government interest,” and thus the preliminary injunction should be issued. The state claimed an interest in protecting children from being subjected to “irreversible” experimental medical procedures, but the court found that the legislative “findings” on which this ban was based were discredited by the credible expert testimony, which was backed up by amicus briefs from the major medical associations.

“The question is whether Georgia has shown an ‘exceedingly persuasive justification’ for the challenged legislative scheme,” she wrote, “a scheme that prohibits clinicians and parents from determining the correct course of treatment on an individualized basis, and which does so in a sex-based manner in that it imposes this prohibition only when it comes to ‘hormone replacement therapy’ as a treatment for gender dysphoric youth.” She also found no persuasive evidence for the legislature’s suggestion that clinicians were “pushing” parents and children into such treatment with “minimal consultation,” or that Georgia practitioners are not following the “standards of care” adopted by the World Professional Association for Transgender Health,” which have been deemed authoritative by numerous courts.

The judge also rejected the state’s reliance on studies by several European countries, which had urged “caution” in providing gender-affirming care to minors. The record in this case suggests that caution is built into the standards of care followed by practitioners, requiring extensive procedures that are undertaken to diagnose gender dysphoria and determine that gender-affirming medical care should be given. None of the European studies have resulted in imposing a categorical ban on gender-affirming care for minors. In fact, the judge found that the WPATH standards closely resemble the approach that several European countries have adopted.

Having determined that the minor plaintiffs had demonstrated that they were likely to prevail on their Equal Protection claim, the court did not have to analyze their parents’ Due Process claim to decide the motion in favor of a preliminary injunction.

The judge also wrote a substantial discussion justifying issuing the injunction against all enforcement of the ban on puberty blockers and other hormone therapy, not just barring application of the law to the plaintiffs in this case. As she saw it, this was a facial challenge to the statute, not just a challenge as applied to these plaintiffs, which justified the broader remedy.

The plaintiffs are represented by attorneys associated with Human Rights Campaign, The ACLU, and the Southern Poverty Law Center, as well as local Georgia counsel.