Georgia Gets Go-Ahead to Enforce Gender-Affirming Care Ban

A federal judge in Georgia temporarily halted an order that had allowed minors to continue accessing certain types of gender dysphoria care despite a state ban.

The US District Court for the Northern District of Georgia’s Aug. 20 injunction prohibiting the ban’s enforcement pending trial couldn’t remain in place because its governing appeals court specifically rejected arguments Judge Sarah E. Geraghty previously found persuasive, she said Tuesday.

Geraghty said her only choice at this point was to let the law take effect, at least until the possibility that the full Eleventh Circuit would rehear Eknes-Tucker v. Gov. of Alabama has passed.

At issue is Georgia’s SB 140, which prohibits minors from accessing surgical procedures and hormone therapy intended to align their gender with the sex they were assigned at birth. The law was slated to take effect July 1, but Geraghty blocked its enforcement pending trial after finding that it was subject to heightened scrutiny under the equal protection clause because it unlawfully drew distinctions based on sex.

The Eleventh Circuit, just a day later, said that a similar Alabama law likely didn’t discriminate on the basis of sex and, therefore, was subject to the lower rational basis standard of review. Alabama could easily meet that standard, it said.

Geraghty rejected the plaintiffs’ request that she wait to rule on the state’s motion to vacate in the injunction until after it became clear whether the Eleventh Circuit would rehear the case en banc. That wasn’t a “plausible or legal option” because the appeals court’s decision is binding legal precedent at this point that she must follow, the judge said.

En banc review, however, would require a new, full equal protection analysis that could end in a different result, Geraghty said. Vacating the Georgia injunction entirely at this point, therefore, could result in a second order that conflicts with circuit court precedent, she said.

Geraghty stayed the preliminary injunction while awaiting the expiration of the time for seeking a rehearing in Eknes-Tucker or a determination by the Eleventh Circuit as to whether it will rehear the case.

Twenty-two states have banned gender-affirming care for minors, including Arizona’s surgery-only ban, according to the Movement Advancement Project, a nonprofit think tank that studies LGBTQ+ issues. A federal district court permanently enjoined Arkansas’ ban in June.

Defendant Russel Carlson replaced Caylee Noggle as Georgia’s Department of Community Health Commissioner Aug. 1.

The Georgia Attorney General’s Office and Consovoy McCarthy PLLC represent the commissioner. The Human Rights Campaign Foundation, O’Melveny & Myers LLP, the American Civil Liberties Union Foundation of Georgia, and the Southern Poverty Law Center represent the plaintiffs.

The case is Koe v. Carlson, N.D. Ga., No. 23-cv-2904, 9/5/23.