Federal judge starts hearing on allegations in gender-affirming care case

The Frank M. Johnson Jr. Federal Building and United States Courthouse in Montgomery, Alabama, seen on January 24, 2023. (Brian Lyman/Alabama Reflector)

A federal judge Monday began a hearing on allegations of judge shopping in Alabama’s gender-affirming care lawsuit by closely questioning two of 11 lawyers facing accusations.

U.S. District Judge Liles C. Burke warned one of the lawyers to “not cover for anybody” and “tell the truth, the whole truth and nothing but the truth.”

During the hearing, he questioned why attorneys pulled a second lawsuit challenging the 2022 law making it a felony to provide gender-affirming care to minors shortly after it was assigned to him.

“If I’m randomly assigned a case, why did it create such panic?” Burke asked Michael Shortnacy, one of the lawyers questioned before the court.

The state of Alabama in 2022 made it a felony, punishable by up to 10 years in prison, for a physician to prescribe puberty blockers and hormones to youth seeking gender-affirming care. A group of transgender youth and their families sued the state shortly after the law was passed, saying access to the treatments was critical to their physical and mental well-being.

Federal judge demands lawyers’ public statements in judge-shopping case

Burke initially ruled for the plaintiffs and blocked the state law, ruling that the law interfered with parents’ rights to make decisions for their children and that the state had not proven any harm from the treatments.

A three-judge panel of the U.S. 11th Circuit Court of Appeals overturned his ruling last year , saying there was no “fundamental right” to gender-affirming care and citing Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, which said the 14th Amendment to the U.S. Constitution does not protect any right “not deeply rooted in the nation’s history and traditions.”

The plaintiffs in the case are seeking a full review of the decision by the full circuit.

The hearing Monday concerned allegations that attorneys for the plaintiffs attempted to secure a judge that would be favorable to hearing their case. Three days after the first lawsuit, a second lawsuit was filed challenging the same law. When the cases were consolidated and transferred to Burke, he on Friday scheduled a status conference for Monday. That same evening, lawyers for the plaintiffs withdrew the lawsuit at 6:24 p.m., according to Burke’s 2022 order closing the case.

Burke said the moves, along with contacting U.S. District Judge Myron Thompson, gave the appearance of judge shopping. An investigative panel said in a report in October that the attorneys had “intentionally attempted to direct their cases to a judge they considered favorable and, in particular, to avoid Judge Burke.”

Kathleen Hartnett, the second lawyer questioned on Monday, said lawyers weren’t prepared for a status conference on such short notice and were caught by surprise without enough time to prepare. It was Easter weekend, she said, and she had been traveling that week and couldn’t arrange to leave at the last minute.

Burke questioned how they couldn’t find anyone who could have attended a short status conference out of the 21 lawyers representing the plaintiffs. Lawyers and judges typically schedule hearing dates in status conferences.

“This is something someone two days out of law school could have attended,” Burke said.

Hartnett said that she didn’t feel comfortable sending lawyers who may not be as familiar with the same and that status conference hearings can sometimes turn into something else, with questions asked about the case.

“I don’t ever want to have a status conference without knowing more about it. We would not be ready,” she said.

Hearings for the remaining nine lawyers will be held on Thursday and Friday, with the possibility of going into Saturday.

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