(The Washington Stand) — The U.S. Department of Justice (DOJ) on Thursday withdrew its petition for the U.S. Supreme Court to hear an appeal (Eknes-Tucker v. Marshall) against Alabama’s Vulnerable Child Compassion and Protection Act (VCAP), which protects gender-confused minors from the harmful effects of life-altering puberty blockers, cross-hormones, and transgender surgeries.
The action continues the Trump administration’s policy shift of repudiating ideological lawsuits brought by their predecessors under President Joe Biden.
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On February 10, the DOJ informed the Supreme Court they had reversed their position in U.S. v. Skrmetti, a Biden administration challenge to a similar law in Tennessee. However, since the Supreme Court had already received full briefings and held oral arguments on the case, the DOJ urged the Supreme Court to issue a decision anyway, in order to immediately settle numerous other lawsuits working through various federal courts.
One of those lawsuits was a challenge to Alabama’s 2022 law – one of the earliest in the nation, along with Arkansas and Arizona (although there is no obvious connection between these states’ legislative and alphabetic precociousness). Arizona’s law was largely neutered by a lack of enforcement provisions and a governor who embraced transgender ideology.
Alabama’s law was initially challenged by a coalition of activist lawyers, which included lawyers affiliated with the ACLU and SPLC. The lawyers tried to file their lawsuit in two separate federal courts, then withdrew both suits and refiled a nearly identical one. These shenanigans earned them a court-initiated investigation over improper judge shopping, which concluded in October 2023 that 11 left-wing lawyers involved in the case were engaged in improper attempts to manipulate the courts’ random case designations and obtain a favorable judge.
The lawyers needn’t have troubled themselves. The Trump-appointed judge they tried to avoid (Liles Burke, Northern District of Alabama) granted them a preliminary injunction against the Alabama law in May 2022, just as federal judges in Florida and Georgia enjoined similar laws in both states.
However, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit unanimously vacated that injunction in August 2023, finding no “constitutional right to ‘treat [one’s] children with transitioning medications subject to medically accepted standards.’” (After this, Northern District of Georgia Judge Sarah Geraghty removed her own preliminary injunction, while a narrower injunction in Florida was left in place for the time being.)
Following an appeal to the full circuit, the 11th Circuit Court allowed Alabama’s law to take effect in January 2024 and finally declined to review the panel’s decision in September 2024.
By the fall of 2022, the Biden administration DOJ had intervened in the legal challenge to VCAP. Absurdly, as part of discovery in the case, the massive federal agency subpoenaed a tiny Alabama non-profit, the Eagle Forum of Alabama (EFA), for five years’ worth of records. Lawyers for the EFA, which had a grand total of two paid employees, successfully quashed the subpoena, in part because EFA was not even party to the lawsuit.
The discovery process was more brutal for the Biden administration. “One of the things that we were able, through the litigation that we had in Alabama, to expose the medical and legal fraud that was gender affirming care,” Alabama Attorney General Steve Marshall (R) explained on “Washington Watch” earlier this month.
Alabama lawyers exposed emails between U.S. Assistant Secretary for Health Rachel Levine and his assistant with members of the World Professional Association for Transgender Health (WPATH), in which the government officials lobbied the activist group to make edits to their upcoming “Standards of Care” edition for political reasons. Specifically, Levine wanted WPATH to conceal the fact that their practices recommended gender transition surgeries to minors as young as 15.
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This revelation, later reported in the New York Times in early 2024, was hugely embarrassing for President Biden, then standing for re-election. The White House issued a statement declaring that gender transition surgeries should only be available for adults – the position held by a majority of Americans. But they immediately got pummeled by transgender activist groups so badly that the White House had to apologize and walk back its statement.
“Not only did we expose what was going on between Rachel Levine and activists embedded within the Biden administration, the activist lawyers that were working with the WPATH and the other organizations establishing so-called standards of care, but we began to see this for what it was,” Marshall added. “This was simply a way to impose a radical gender ideology across the country under the guise of treatment for kids.”
No longer beholden to the transgender lobby, the DOJ has reversed the politicized stance it adopted under Biden and dropped its appeal against Alabama’s law.
This action is consistent with the reversal of its position on Skrmetti, but ultimately unnecessary. If the Supreme Court decides to go ahead and issue a ruling in Skrmetti, that will likely settle the fate of challenges to similar laws in other states; Alabama’s law is already in the Supreme Court’s hands.
This article is reprinted with permission from the Family Research Council, publishers of The Washington Stand, at washingtonstand.com.