Court allows Idaho to generally enforce ban on gender-transition care for minors

EMERGENCY DOCKET

The Supreme Court on Monday cleared the way for Idaho to temporarily enforce a state law criminalizing gender-transition care for minors against anyone who is not part of a lawsuit currently challenging that ban. In a brief order, the justices granted the state’s request to limit the scope of an earlier order entered by a federal district court in Idaho, which had barred the state from enforcing the law at all while a challenge to its constitutionality continues.

The ruling was also noteworthy for the extent to which several members of the court aired their views – and their differences – on the court’s emergency docket, which has grown in both size and prominence in the past several years. Five of the court’s conservative justices either wrote or joined opinions agreeing with the court’s disposition of the state’s request, while two members of the court’s liberal bloc – Justices Ketanji Brown Jackson and Sonia Sotomayor – dissented from the ruling.

Justice Elena Kagan indicated, without explanation, that she would have denied the request. Only Chief Justice John Roberts did not publicly indicate how he had voted.

The state enacted the law at the center of the dispute last year. The law, which was slated to go into effect on Jan. 1, makes it a crime for medical providers in the state to provide gender-transition surgeries, puberty blockers, or hormone therapy to transgender youths under the age of 18. The same treatments can be provided, however, for other purposes.

Two transgender girls (along with their parents) who receive estrogen therapy went to federal court last May to challenge the law. Before the law could go into effect, U.S. District Judge J. Lynn Winmill temporarily blocked the state from enforcing any part of the law against anyone while the litigation continued.

After the U.S. Court of Appeals for the 9th Circuit rejected the state’s request to put the law on hold while it appealed, the state came to the Supreme Court on Feb. 16, asking the justices to narrow Winmill’s order so that it can enforce the law for everyone except the named challengers.

Represented by Idaho Solicitor General Alan Hurst and (among others) by lawyers from the conservative Christian legal group Alliance Defending Freedom, the state told the justices that as long as the law remains on hold, the state’s “vulnerable children” are exposed “to risky and dangerous medical procedures,” and “Idaho’s sovereign power to enforce its democratically enacted law” is infringed.

The district court’s order blocking the state from enforcing the law in its entirety, the state contended, “goes far beyond any relief the plaintiffs needed or had standing to seek.” The challengers, the state continued, “both want access to a single procedure” – hormone therapy – “but the injunction applies to all 20+ procedures that the” law regulates, and it bars enforcement against people who are not part of the lawsuit.

And indeed, the state added, five justices have suggested that the Supreme Court should decide whether the district court can put an entire state law on hold and prohibit the state from enforcing it against anyone, including people who are not part of the lawsuit.

The challengers in the case, who are represented by the ACLU, urged the justices to stay out of the dispute. They noted that the court of appeals has fast-tracked the appeal on the broader question whether the law violates the Constitution, and that briefing in that appeal would be completed by March 26.

But here, the challengers emphasized, the district court concluded that the Idaho law should be temporarily blocked in its entirety to make sure that the challengers can continue to receive care. Otherwise, they said, the two teenagers – who are proceeding anonymously – will have to reveal their identities whenever they seek care.

Although the state may disagree with the district court’s conclusion, the challengers wrote, it is a “highly fact-bound question,” and there is no reason for the court to intervene and weigh in on “broader legal questions about whether courts have the power to issue relief in order to benefit non-parties.”

Moreover, the challengers stressed, the district court’s order only applies in Idaho. It “does not tie the hands of any other judge in any other district, much less all judges nationwide.”

Six weeks after the state filed its final brief in the case, the justices granted the state’s request to pare back the scope of the district court’s order, which will continue to allow the two challengers to receive hormone therapy.

In a 13-page concurring opinion joined by Justices Samuel Alito and Clarence Thomas, Justice Neil Gorsuch – a frequent critic of the kind of broad, or “universal,” injunctions entered by the district court in this case – explained that all of the factors that courts consider when deciding whether to grant temporary relief point in the state’s favor. The order entered by the district court, Gorsuch wrote, “purported to bar the enforcement of ‘any provision’ of the law against anyone … even though, by its own admission, the plaintiffs had failed to ‘engage’ with other provisions of Idaho’s law that don’t presently affect them.” Moreover, Gorsuch continued, the district court’s order would prohibit the state from enforcing indefinitely “portions of a statute that no party has shown, and no court has held, likely offensive to federal law.”

Gorsuch conceded that the justices may have “seen a rise in the number of applications for interim relief.” But the lower courts’ failure to adhere to the Supreme Court’s precedents and standards for emergency relief, Gorsuch suggested, may be the culprit behind that phenomenon. In this case, Gorsuch notes, “the district court’s universal injunction” barring the state from enforcing the law against anyone “effectively transformed a limited dispute between a small number of parties focused on one feature of a law into a far more consequential referendum on the law’s every provision as applied to anyone.” “Today,” Gorsuch concluded, “the Court takes a significant step toward addressing the problem.”

Justice Brett Kavanaugh wrote his own 13-page concurring opinion, joined by Justice Amy Coney Barrett, in which he focused on how the court should deal with emergency applications in cases – like this one – involving efforts to block enforcement of a new state or federal law. Kavanaugh noted that one factor that the justices often consider in deciding whether to grant emergency relief is the likelihood that the party seeking the relief will ultimately prevail on the merits. That determination, he explained, can be “consequential and difficult,” and it generally must be made on a tight timeline.

Kavanaugh agreed with Gorsuch that a ban on universal injunctions “could somewhat reduce the number of emergency applications that make it to this Court and require the Court to assess the merits,” but he did not regard a ban as a complete panacea. Even a more limited injunction, he reasoned, “could still have widespread effect,” and – at least with federal laws – different parties could go to court in different parts of the country, potentially leading to disuniformity in a law’s enforcement. And if the court inevitably will have to weigh in on some emergency applications involving important new laws, he continued, it should “use as many tools as feasible and appropriate to make the most informed and best decision” – which may include additional briefing, oral argument, or granting review without waiting for the court of appeals to weigh in.

In an eight-page opinion joined by Sotomayor, Jackson found “common ground” with her conservative colleagues, agreeing that “our emergency docket seems to have become increasingly workable.” But, she continued, she worried that “we may be too eager to find fault in everyone but ourselves.” Jackson urged her colleagues to exercise restraint in dealing with requests for emergency relief. “We do not have to address every high-profile case percolating in lower courts, and there are usually good reasons not to do so,” she posited.