Plaintiffs join in requesting stay in district court proceedings over gender affirming care

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

Plaintiffs in a case challenging Alabama’s ban on medical gender-affirming care for people under 19 Tuesday joined a call to stay the proceedings while the U.S. Supreme Court considers a separate case.

The plaintiffs cited a filing from the U.S. Department of Justice on Monday, which also asked U.S. District Judge Liles C. Burke Monday to stay the process. The briefing cited the U.S. Supreme Court ‘s decision on Monday to take up a case over the gender affirming care ban in Tennessee.

Alabama Attorney General Steve Marshall, whose office is defending the law in court, said in a statement Tuesday that the the office had “ successfully led briefs in support of Tennessee’s law at the lower courts, and we will do so again at the Supreme Court.”

“We expect that the Court will uphold Tennessee’s reasonable law once it hears how the Biden Administration has paired with the radical left to prioritize gender ideology over medical science and the safety of kids,” the statement said.

On Wednesday, the state filed a brief opposing a stay of the proceedings, writing that the case could be resolved quickly with summary judgment. Attorneys with the Attorney General’s office wrote that the case could be heard with Tennessee’s case before the U.S. Supreme Court.

“Proceeding at least through summary judgment will thus help develop the law, while shutting the case down now—when the case is so close to final adjudication—can only hinder it,” they wrote.

The Alabama law bans physicians from prescribing hormones and puberty blockers in gender-affirming care for youth under the age of 19. Physicians who do so could face up to 10 years in prison. Alabama has been involved in litigation over the case since shortly after Gov. Kay Ivey signed the law in 2022. The plaintiffs suing said access to the medication was critical to their children’s physical and mental health.

Burke first blocked enforcement of the law with a preliminary injunction in 2022, but it was overturned last year by a three-judge panel on the U.S. 11th Circuit Court of Appeals.

During a hearing on Monday, Alabama Solicitor General Edmund LaCour pressed for a summary judgment, saying that “if we wait for the Supreme Court to rule, we may be waiting until 2025.” LaCour also suggested the 2024 election could impact how the law is challenged if they wait for a Supreme Court decision.

Attorney Jeff Doss, representing the plaintiffs, said there was no reason to rush because the law was already in effect.

Burke said parties can move forward with summary judgment filings but suggested he is leaning towards waiting for the Supreme Court to rule so he doesn’t have to try the case twice.

“If there is a chance the Supreme Court will clarify the issue, it would make sense to wait,” Burke said.

The case has also been subject to an inquiry by Burke over whether attorneys for the plaintiffs had acted to receive a judge favorable to them.

On Tuesday, attorneys James Esseks, Carl Charles, and LaTisha Faulks indicated their willingness to allow Burke to conduct an in camera review of a Q&A document that attorneys for the team has said was used to prepare attorneys for questions. The attorneys said they would agree to the review provided that they do not lose their attorney-client privilege.

Alander Rocha contributed to this story.

Updated at 3:29 p.m. with the Alabama attorney general’s office filing a motion opposing a stay.

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