ACLU struggles to explain why California's conversion therapy ban doesn't protect Idaho's trans ban

What's good for the goose is good for the gander.

Because the 9th U.S. Circuit Court of Appeals upheld California outlawing talk therapy for minors with unwanted same-sex attraction, it must likewise uphold Idaho's ban on invasive and potentially irreversible medical treatments to make gender-confused minors resemble the opposite sex, the Gem State's outside lawyer told a three-judge panel Thursday.

Alliance Defending Freedom senior counsel John Bursch invoked the 2013 Pickup precedent, celebrated at the time by LGBTQ activists for finding that California's SB 1172 does not violate the "fundamental parental right to make important medical decisions for their children" and only "regulates professional conduct," meaning it's reviewed under the low "rational basis" standard.

The judges "need not resolve the science" over so-called gender affirming care under that standard because the law regulates based on the risks and benefits of treatment, not who requests it, Bursch said.

Whether a mastectomy for a girl with breast cancer versus one who wants to "look like a boy," or a vaginoplasty for a female victim of "sexual mutilation" versus a "boy who wants to identify as a girl, you can't remotely say that those two things are comparable," he said.

Judge Ana De Alba, nominated by President Biden, asked why ACLU deputy director for transgender justice Chase Strangio didn't discuss Pickup in detail in the group's briefs on behalf of transgender teenager "Pam Poe" in a challenge to Idaho's Vulnerable Child Protection Act.

Dubbed "the face of the whole legal battle for trans rights in the U.S." but more recently known for embarrassing the ACLU by publicly calling for censorship of a gender-critical book, Strangio responded that HB 71 categorically bans treatment for minors that's available to adults and that the government "in all other contexts" trusts parents to make decisions for them.

Here is that now-deleted tweet from Chase Strangio of the American Civil Liberties Union (ACLU) saying, very explicitly, how “stopping the circulation of this book [‘Irreversible Damage’ by @AbigailShrier] and these ideas is 100% a hill I will die on.” pic.twitter.com/tvDGzrQ7eu

— Donovan Cleckley (@DonovanCleckley) November 14, 2020

Because the law bans certain treatments "if and only if" the patient has "incongruence" between birth and perceived sex, "facially classifies based on transgender status" and "by design and effect … enforces Idaho's preference for gender conformity," the court must review it under "heightened scrutiny," Strangio argued, noting its criminal penalties for doctors.

That would require Idaho to show HB 71 "substantially advances an important governmental interest," a higher burden than rational basis. The state has said it can win on either, arguing in part the ACLU is pulling a bait-and-switch by setting out by standards for the most demanding level of review, "strict scrutiny," while disingenuously calling it "heightened."

De Alba talked far less than her President Clinton-nominated colleagues, judges Michael Hawkins and Margaret McKeown, who largely focused on the procedural posture of the case and asked fast-talking Bursch to slow down.

The case returned to the 9th Circuit after the Supreme Court let the law take effect except on the plaintiffs, three of whom dropped out Aug. 16, according to a notice in the docket. SCOTUS agreed in June to review a challenge to Tennessee's similar law, but both Bursch and Strangio urged the 9th Circuit not to wait for that ruling before deciding Poe.

"Any other male who comes in and wants estrogen treatments" – what Poe is currently receiving – "is going to be able to get an injunction" from U.S. District Judge Lynn Winmill if the 9th Circuit waits, neutralizing the SCOTUS intervention, Bursch said.

Winmill outraged Idaho and red states by blocking the entire law the week before it was scheduled to take effect.

"Plaintiffs have no interaction with the majority of the Act’s provisions," said the emergency motion for a stay, backed by 19 states.

"These are laws that cause significant, significant harm to adolescents" but specifically to Poe, who has received "tremendous, life-saving benefit" from gender-affirming care but is still suffering "concrete" and constitutional injury, Strangio said.

Strangio confirmed the injunction is currently limited to Poe and non-surgical treatment when McKeown asked whether the panel should review the SCOTUS-narrowed injunction or Winmill's original.

By limiting the active dispute to "natal males who want estrogen" like Poe, SCOTUS gave Idaho a slam dunk, according to Bursch, rattling off statistics about the consequences of the treatment: a 36-fold higher risk of stroke, 22-fold increased risk of breast cancer and possible increases in other cancers and autoimmune disorders. 

He didn't specify their source, but the emergency motion refers to another document that details the evidence that "cross-sex hormones increase risk of cardiovascular disease, heart attacks, strokes, osteoporosis, and hormone-dependent cancers."

A member of the Endocrine Society "guidelines authority committee" admitted it had "no data" to justify letting doctors prescribe cross-sex hormones under age 16, Bursch said.

"At a minimum there's at least a tie" on the scientific evidence for and against gender affirming care, meaning the Legislature and not Winmill gets to decide, he said.

McKeown asked Bursch how a law explicitly "pegged to the child's biological sex" only differentiates by treatment, thus evading heightened scrutiny.

Mississippi's 15-week abortion ban upheld by SCOTUS in Dobbs, which reversed national abortion rights, had "100% disparate impact" by sex but the high court nonetheless applied rational-basis review, he responded. No one would accuse Idaho of sex discrimination for regulating medical dosage by sex, a pertinent safety factor, Bursch said.

The fact that both sexes can receive gender affirming care, unlike only women being capable of having abortions, makes Idaho's law less susceptible to an equal-protection challenge, he told a skeptical McKeown. 

Otherwise supporters of gender affirming care would have to choose between two unpalatable arguments, Bursch argued: If detransitioners were never actually transgender, then "even non-trans people can be turned down for these treatments," and if they were trans at some point, the treatments aren't always necessary, as the "abundance of science says."

The judges interrogated Bursch the most on the state's long delay in turning over communications, obtained in a third-party subpoena, that question the reliability of the World Professional Association for Transgender Health and Endocrine Society guidelines widely followed by practitioners and relied upon by the plaintiffs.

Bursch admitted Idaho had them at the time of the preliminary injunction hearing but said it took his team more than six months to review more than 100,000 pages, they were under another protective order, and the plaintiffs reneged on an agreed-upon plan for a new protective order so Idaho could produce them in court. 

Justice Department Special Litigation Counsel Elizabeth Hecker backed up Strangio, warning the panel the 9th Circuit would be the first federal appeals court to uphold such a law under heightened scrutiny, a standard she said its precedents require.

She mentioned another panel upholding Judge David Nye's injunctive relief for transgender athlete Lindsay Hecox against Idaho's Fairness in Women's Sports Act on equal-protection grounds. It remanded two issues to Nye: clarifying the scope of the injunction and the "effect, if any" from SCOTUS narrowing the Poe injunction.

Nye found that gender affirming treatment, when provided according to WPATH and Endocrine Society guidelines, is "safe, effective and medically necessary for some adolescents," Hecker emphasized.

"What injunction are we looking at?" Judge Hawkins asked Hecker, rebuking the DOJ lawyer for arguing as if "the Supreme Court's intervention … didn't exist."

He said there was "no question we will have to send this case back" to Judge Winmill to comply with SCOTUS orders.

SCOTUS is considering state bans upheld on rational-basis review, which 9th Circuit precedent "foreclose[s]," she responded. The 9th Circuit's findings on the effectiveness of the treatment and WPATH and Endocrine Society standards will still matter, Hecker said.