". . . and having done all . . . stand firm." Eph. 6:13


Judge Reinstates Ga. Law Protecting Minors from Cross-Sex Hormones, Trans Surgeries

September 6, 2023

A Georgia law protecting minors from irreversible cross-sex hormones and gender reassignment surgeries went back into effect on Tuesday as a result of the 11th Circuit’s recent ruling in favor of a similar law in Alabama. A federal district judge stayed her own preliminary injunction against Georgia’s law pending further action at the circuit court level. “It is undisputed that this Court’s preliminary injunction rests on legal grounds that have been squarely rejected” by the 11th Circuit, she admitted.

On March 23, 2023, the Georgia legislature enacted SB 140, which protected minors from the harmful effects of gender reassignment surgeries and cross-sex hormones — but not puberty blockers — by holding physicians who performed such procedures or prescribed such drugs “administratively accountable” to the state medical board. The law was scheduled to take effect on July 1.

Less than 48 hours before the law’s effective date, the SPLC, ACLU, and HRC, with other counsel, sued the state in federal court, asking the court to enjoin the law and strike it down as unconstitutional.

U.S. District Judge Sarah Geraghty, of the District of Northern Georgia, an Obama appointee, allowed SB 140 to take effect because the last-minute lawsuit gave the state “no meaningful opportunity to respond” before the law’s scheduled effective date.

However, after a hearing, Geraghty did issue a preliminary injunction against the law on August 20 in Koe v. Noggle, “having found that heightened scrutiny should be applied to the statute and that Plaintiffs were likely to succeed on their equal protection claim.”

The very next day, in Eknes-Tucker v. Governor of Alabama, the Court of Appeals for the 11th Circuit vacated a lower court’s preliminary injunction against a 2022 Alabama law protecting minors from gender reassignment surgeries, cross-sex hormones, and puberty blockers. There, the lower court had also applied heightened scrutiny to the law and found that the challengers were “likely to succeed” — a key requirement for granting a preliminary injunction — on their equal protection and substantive due process claims.

However, the 11th Circuit “determined that the Alabama law was subject to rational basis review [a lower bar] under the Equal Protection Clause and that plaintiffs had failed to satisfy the preliminary injunction standard.” Thus, the 11th Circuit — which covers both Alabama and Georgia, as well as Florida — had “squarely rejected” the basis for Geraghty’s preliminary injunction on the day after it had been issued.

As a result, the state asked Geraghty to “reconsider and vacate” her preliminary injunction in light of the new precedent. The SPLC and company responded by arguing “alternative grounds” for the injunction — namely, that the law was a “pretext for discrimination” and that it was likely to fail rational basis review.

The SPLC also urged the court to “not ‘rush to rule’” until the full 11th Circuit “decides whether to hear Eknes-Tucker … assuming it is asked to do so.” Eknes-Tucker was decided by a three-judge panel of the 11th Circuit, and the SPLC cited “a newspaper article in which it is alleged that the Eknes-Tucker plaintiffs may seek rehearing” before the full circuit. The plaintiffs in Eknes-Tucker are also represented by SPLC lawyers, who provoked an investigation for behavior that “could give the appearance of judge shopping” — by filing, withdrawing, and refiling the case.

Judge Geraghty curtly dismissed the suggestion to withhold judgment, calling it not “a plausible or a lawful option.” “Eknes-Tucker is binding precedent right now,” she noted, even if the period to appeal the decision has not yet expired. She pointed out that it is not even certain if the plaintiffs in Eknes-Tucker would appeal, or if the full 11th Circuit would even agree to rehear the case. At the very least, she said, it could take months to resolve the issue. “It is not possible to leave the order in place for a period of unknown duration while matters play out in Eknes-Tucker.”

However, the prospect of a rehearing by the full 11th Circuit also made Geraghty reluctant to reconsider the case, which would “require a full-blown, revised equal protection analysis. Undertaking that analysis at this juncture could, if rehearing is sought and granted, conceivably result in a second order that conflicts with Circuit precedent.” Instead, Geraghty chose simply to “stay” — pause — her preliminary injunction until either the timeline to appeal expired or the full circuit agreed to hear the case.

To some extent, Geraghty’s decision not to reconsider the case will disappoint both parties, as that analysis is a necessary step to either vacating the preliminary injunction, as Georgia requested, or justifying the preliminary injunction on other grounds, as the SPLC and company requested. However, the effect of Geraghty’s temporary decision was to reinstate the Georgia law, a win for the state’s endeavor to protect minors from gender transition procedures — for now.

Joshua Arnold is a senior writer at The Washington Stand.