We're back on a regular schedule today, and I wish I had better news to do that with. But late last night the 6th Circuit Court of Appeals here in Cincinnati issued a 2-1 ruling overturning the injunction against Tennessee's anti-trans law taking effect, and as Law Dork's Chris Geidner looks at this garbage fire of a ruling, the ban on Kentucky's anti-trans law will be overturned in short order.
The Saturday ruling itself alters the legal landscape for these bans, at least temporarily.
First, and most immediately, Tennessee is free to enforce its ban, pending any further court orders.
While calling the ruling “wrong on the facts and on the law,” Chase Strangio, who is one of the key ACLU lawyers on this and several other challenges to anti-transgender laws, added, “We also know that things are moving quickly and for many families, waiting for legal relief is not an option. The untenable position that adolescents, their caregivers and their doctors have been put in is not only illegal, but also deeply unethical and dangerous.”
One of the most prominent trans legal advocates in the country over recent years, Strangio added a personal note to those affected by Sutton’s ruling, telling Law Dork: “From the bottom of my heart, I am sorry. I know it feels bleak now and I am also confident that in time, working together, we will prevail.”
Strangio, the deputy director for transgender justice within the ACLU’s LGBTQ & HIV Project, added that the ACLU “will continue to aggressively litigate these cases in Tennessee and across the country.”
It was not immediately clear, however, whether the challengers would seek to get the stay lifted, either by the full Sixth Circuit or the U.S. Supreme Court. “We are still evaluating all our options with our primary concern of course being how can we help ensure that people in Tennessee are not cut off from the care they need,” Strangio stated.
Second, the Sixth Circuit set a very quick schedule for the merits appeal of the preliminary injunction — with the “goal” of reaching a resolution by Sept. 30.
Third, Kentucky is within the Sixth Circuit and Kentucky Attorney General Daniel Cameron has already cited the Sixth Circuit’s ruling in a filing at the district court in the case challenging Kentucky’s ban as a reason why the court should “immediately” issue a stay of its June 28 ruling granting a preliminary injunction.
Fourth, the Sixth Circuit also consolidated Cameron’s appeal of the Kentucky injunction in a separate order Saturday, which not only brings that case on the same schedule as the Tennessee appeal but also essentially confirms that Sixth Circuit would almost certainly issue a stay of the Kentucky injunction if the district court does not do so.
Finally, the new, if tentative, lack of unanimity itself matters for two reasons — one rhetorical and one practical. Obviously, having unanimity is its own argument against the constitutionality of these bans. Additionally, although only at the stay request posture, the ruling increases the likelihood that a “circuit split” on these bans will develop — a factor that greatly increases the chances of the U.S. Supreme Court taking up one of these cases.
Few people know that better than Sutton.
It was, after all, Sutton’s 2014 decision in the marriage cases out of Kentucky, Michigan, Ohio, and Tennessee that prompted the U.S. Supreme Court to take up the issue of same-sex couples’ constitutional right to marriage equality. Less than two months before Sutton’s decision in those cases, the Supreme Court denied other states’ requests to hear similar appeals when the federal appeals courts were in unanimity on the issue. After Sutton’s decision created a circuit split, however, the Supreme Court took up the issue.
The most ominous part of the decision is that two Republican judges decided that the Dobbs ruling can be applied to other medical care issues. Even if a doctor agrees that gender-affirming care is the correct issue, the state can still ban it.
Republican attorneys general from seven states signed a letter Wednesday to Target (TGT), warning clothes and merchandise sold as part of the retail giant’s Pride month campaigns could violate their state’s child protection laws.
GOP attorneys general from Indiana, Arkansas, Idaho, Kentucky, Mississippi, Missouri and South Carolina signed the letter, writing they were “concerned by recent events involving the company’s ‘Pride’ campaign.” The letter asserts the states are obliged to “enforce state laws protecting children” from “content that sexualizes them,” including obscenity laws. The letter also suggests Target may be breaching the law by making decisions that are allegedly “unprofitable” and not in the best interests of its shareholders, citing it as a violation of the company’s fiduciary duty.
The AGs said they believed the campaign was a “comprehensive effort to promote gender and sexual identity among children,” criticizing items such as “LGBT-themed onesies, bibs, and overalls, T-shirts labeled ‘Girls Gays Theys’; ‘Pride Adult Drag Queen Katya’ (which depicts a male dressed in female drag’); and girls’ swimsuits with ‘tuck-friendly construction.’”
The letter does not provide specific details regarding potential legal consequences if Target continues to sell the merchandise in question. It follows a wave of bills introduced in various states aiming to ban LGBTQ+ content under obscenity laws, as well as a record-shattering year for anti-LGBTQ legislation, with particular scrutiny on gender-affirming health care access for transgender children and teenagers. Nineteen states have passed laws restricting it.
The Human Rights Campaign, the largest LGBTQ+ advocacy group in the US, slammed the letter as “another attempt from the extreme right to bully anyone who stands by values of inclusion and diversity.”
“These attorneys general are trying to rile up their far-right base and force us back into the closet. It’s not going to work,” Jay Brown, HRC’s Sr Vice President of Programs, Training and Research said in a statement provided to CNN.
If you're saying that it's a potential violation of the law to sell children's products proclaiming that LGBTQ people exist, are equal citizens, and should be celebrated, you're a very short step from declaring that it's illegal to be a gay parent. If the presence of pro-LGBTQ clothing results in unlawful sexualization of children, so does the ongoing presence of an LGBTQ parent -- right?
"Because we have to do whatever is necessary to protect the children" mean Republicans can criminalize, harass, and imprison whomever they deem to be "bad." Steve continues:
These AGs are implying that legal action might be appropriate because Target made a business decision they don't like. That's a heavy-handed use of the power of government to try to enforce ideological conformity. And, of course, this was a questionable business decision only because the AGs' ideological allies in the right-wing rage community were encouraged to vent their wrath at Target. So first these folks boycott your company, then they threaten legal action because you as a corporation should have known they were going to do that.
And then these Republicans will pass laws giving legal power of the state behind these threats, because they are "necessary to save kids". It's bullshit, of course. But that's where we're headed, a toxic, corrosive mix of Hobby Lobby and Dobbs where the existence of trans folks, and eventually all LGBTQ+ folks, will be banned because people existing violates the "closely held religious beliefs" of asshole bigots and "we have to protect the children from teh gayz".
By the way, I expect that the next step in this battle will be contraception, eventually SCOTUS will decide that Griswold v Connecticut is void too and that women will soon have to get permission from their husbands to use birth control in a state like Missouri or Texas, and that the state has a "vested interest" in banning birth control altogether. We've been through this fight before, decades before I was even born. We're going to have it again.
The path of the falling dominoes is easy to predict, and it leads to a significant percentage of women of child-bearing age in prison for failing to give birth. And this too will be done to "protect the children".
When you remember the goal is to overturn the entire civil rights era and put us back into Jim Crow, where everyone who isn't a married, straight white male has second-class citizenship and fungible rights, all of this makes sense.
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