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Legal Professionals Urge SCOTUS to Stop Tennessee’s Gender-Affirming Care Ban

Photo: Tingey Injury Law Firm on Unsplash

Legal experts have filed a brief on behalf of transgender youth in the state in hopes of stopping a Tennessee law banning gender-affirming care for minors from taking effect.

The American Civil Liberties Union of Tennessee (ACLU-TN) said they are urging the Supreme Court of the United States to stop the state from banning hormone therapy for trans adolescents.

Last week ACLU-TN joined the American Civil Liberties Union, Lambda Legal, and Akin Gump Strauss Hauer & Feld LLP in filing a brief on behalf of Samantha and Brian Williams of Nashville and their 16-year-old transgender daughter, Dr. Susan Lacy of Memphis, and two families who filed anonymously.

This brief is in response to a June 2024 decision to hear a challenge to Tennessee’s ban. Advocates claim the law is a violation of the U.S. Constitution’s Equal Protection Clause.

Lucas Cameron-Vaughn, staff attorney at the ACLU of Tennessee, said that Tennessee and other Southern states have “become a testing ground for targeted assault on the constitutional rights of trans Tennesseans.”

In September of 2023 the Sixth Circuit Court of Appeals allowed for the law restricting transgender youth from accessing gender-affirming medical care to remain in effect. The ruling came months after the court initially blocked the law from taking effect in July of the same year.

Governor Bill Lee signed the legislation into law March of 2023, and it prohibits healthcare professionals from administering gender-affirming care to minors. This legislation makes gender-affirming hormone therapy and puberty blockers inaccessible, and trans people in Tennessee will not have access to this care until they reach the age of 18. Similar restrictions have been made in states like Arkansas and Alabama.

“Every day this law remains in place, it inflicts further pain, injustice, and discrimination on trans youth and their families,” Cameron-Vaughn said in a statement. “Make no mistake — if the Supreme Court fails to protect trans Tennesseans’ access to the medical care they need to survive and thrive, local politicians will go even further. They will continue to rewrite the history that our schools teach, discriminate based on what we look like, where we’re from, and who we love, and control if, when, and how Tennesseans choose to start their families.”

Parents of the 16-year-old plaintiff said it has been “painful” to see their child not be able to access “life-saving healthcare,” and they’ve had to travel outside of the state for care.

“We have a confident, happy daughter now, who is free to be herself and she is thriving,” Samantha Williams, mother of 16-year-old L.W., said. “Tennessee’s ban has forced us at great expense to seek routine healthcare visits out of state and may at some point force us to leave Tennessee — the only home our children have ever known. No family should have to make this kind of choice.”

Officials said oral arguments are expected to be heard this term.

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Court Promises Swift Ruling on Tennessee Ban on Gender-Affirming Care for Minors

(Credit: Sharon McCutcheon on Unsplash)

A federal appeals court has promised a swift decision in a legal challenge to Tennessee’s ban on gender-affirming healthcare for minors.

At issue during Friday’s oral arguments, held before a three-judge panel of the Sixth Circuit Court of Appeals: whether to set aside a lower court’s temporary block of the law.

The appeals court has already intervened once, on an emergency basis, allowing Tennessee’s law to take effect until they could hear arguments in the case. The intervention, in July, marked the the first time a federal court allowed a ban on gender-affirming care to take effect in the country. Other federal courts have blocked such bans, finding they violated the Equal Protection Clause, Due Process Clause, and First Amendment.

Addressing the court on Friday, Chase Strangio, deputy director for transgender justice at the ACLU’s LGBTQ & HIV Project, argued the law discriminates on the basis of sex. The U.S. government has also intervened in the case on behalf of the Tennessee plaintiffs, who include children receiving gender-affirming care and their parents.

Federal court temporarily halts Tennessee ban on transgender care for minors

Clark L. Hildabrand. deputy chief of staff and senior counsel for the Tennessee Attorney General argued the courts should defer to the legislature.

The court on Friday heard a nearly-identical challenge to a ban on gender-affirming care for minors in Kentucky.

Chief Judge Jeffrey Sutton, an appointee of former President George W. Bush, acknowledged he struggled with both cases. Sutton authored the July decision allowing Tennessee’s ban to go into effect.

“I think we have to come to grips with the larger picture — at age 18, this all goes away,” he said. Sutton said he was struck by arguments that withholding treatment for minors can subject them to harm.

“I think this is your strongest argument,” he said, adding that compassion is also needed for those who may later regret receiving care. “I feel like there’s compassion in both directions.”

Tennessee Lookout is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Tennessee Lookout maintains editorial independence. Contact Editor Holly McCall for questions: info@tennesseelookout.com. Follow Tennessee Lookout on Facebook and Twitter.

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Groups Threaten Lawsuit On Money Bail Reform

Credit: Shelby County Jail/Facebook

Several groups called Shelby County’s money bail system unconstitutional in a letter issued Tuesday and urged leaders to meet with them about the practice or face a lawsuit by year’s end. 

The letter is from the American Civil Liberties Union (ACLU), the American Civil Liberties Union of Tennessee (ACLUT-TN), Just City, and The Wharton Law Firm. It paints a picture of a broken system that favors those with money to get out of jail and disproportionately affects poor, Black, and disabled detainees.    

“Jailing people simply due to their inability to afford a sum of money is unconstitutional and harmful public policy,” said Andrea Woods, staff attorney with the ACLU’s Criminal Law Reform Project. “Shelby County officials should embrace this opportunity to remedy the county’s discriminatory, wealth-based detention practices. We would rather see smart systems fixes now than be forced to bring these issues to court.”

The letter says pre-trial release is a fundamental right under the state and federal constitutions. Tennessee law requires judges to treat money bail as a “last resort,” it says. Except for “extreme circumstances,” all criminal suspects have the right to some sort of conditional release from jail before their trials. 

Shelby County’s system, however, keeps “hundreds of people” detained because they cannot afford bail. This can lead to loss of employment, housing, education, health care, and child custody, the groups said. 

The county’s current pre-trial system can hold a person for “weeks or longer” without a bail hearing with counsel, according to the groups. Ability to pay is not considered when bail is set, “leaving those who cannot afford to pay detained indefinitely, even if they are not a flight or safety risk, while those who face the same charges but can afford to pay money bail are freed until trial.”

“Because of this community’s dependence on money bail, the Shelby County Jail is full of people who cannot pay for their freedom,” Josh Spickler, executive director of Just City, said in a statement. “There are proven alternatives to this counterproductive system, tools and policies that have worked in other cities just like Memphis to reduce crime, save money, and help people.

“These methods work, but they require leadership. Today, we are inviting Shelby County leaders to join us for a long-overdue conversation about safe and effective alternatives to the money bail system. We hope they’ll join us.”

The letter threatens litigation and demands reform for the county’s bail system. It says the groups “prefer to work with you to resolve our concerns but stand ready to explore other options” if the county does take action. 

That action — an answer to a meeting request from the groups — needs to take place before December 31st. If not, “we have no choice” but to file a lawsuit.  

“We cannot and will not sit idly by and let this easily corrected problem persist,” reads the letter. 

Instead of the current system, which the letter says “does not promote court appearance,” the groups want (among other things):

• bail hearings no later than 24 hours after a person’s arrest

• no money bail set unless proof exists that the person will not return for trial without it

• a consideration of ability to pay for bail before it is set

• affordability for bail means the person can pay the bail amount within 24 hours without borrowing money

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Judge Issues Injunction Against Anti-Trans Bathroom Law

(Credit: Sharon McCutcheon on Unsplash)

A federal judge blocked a new Tennessee law that would require business owners who allow transgender people to use the public bathroom that matches their gender to post a warning sign. 

The lawsuit asserts that the law violates the First Amendment and requests that the judge issue a preliminary injunction to prevent the law from being enforced while the lawsuit proceeds.

The seemingly short-lived law, which passed in April and went into effect on July 1st, requires that any “public or private entity or business that operates a building or facility open to the general public and that, as a matter of formal or informal policy, allows a member of either biological sex to use any public restroom within the building or facility shall post notice of the policy at the entrance of each public restroom in the building or facility.”

On June 25th, the American Civil Liberties Union (ACLU) of Tennessee and the ACLU filed a lawsuit against the bill on behalf of Tennessee business owners Kyle Sayers, owner of Sactuary in Chattanooga, and Bob Bernstein, owner of Fido in Nashville. 

The injunction was issued, with the decision reading, “The plaintiffs are likely to succeed on the merits; if they are not granted a preliminary injunction now, they will be harmed in a way that cannot be repaired; and requiring the State of Tennessee to abide by the U.S. Constitution, sooner rather than later, vindicates the public interest in rule by law and the acceptance, by States, of constitutional government. The court, therefore, has little difficulty concluding that the preliminary injunction should issue.”

Alongside a helping of legal jargon, the court documents for the case showcase some pointedly barbed comments, including this one: “Why did the General Assembly adopt the Act, more than two centuries into the State’s existence and after seemingly many decades of public restrooms being commonplace in Tennessee, and in America, without the need for such signage? The court, of course, cannot purport to know all of the dynamics that go into each legislator’s individual decision to support a bill.”

The law’s sponsor, Representative Tim Rudd, does not exactly look like the exemplar of fact-based legislation. The documents state he was “concerned” that some “hypothetical sexual predators” would “take advantage of” some public restroom policies to “assault or rape” other restroom users.

The exchange continues: “Shortly before that declaration, Rudd was asked by Tennessee House Speaker Pro Tempore Pat Marsh whether the State was ‘having a problem with this now, that you know of . . . anywhere.’ Rudd was unable to provide any examples or evidence of such a problem.”

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New Order to State: Make Eligibility for Mail-in Voting Clear

Chancellor Lyle

As the time to actually cast votes grows ever nearer, the battle continues between exponents of pandemic-related mail-in voting and resisting forces in state government.

Petitioners for the mail-in process gained at least a temporary victory this week in the form of a new order from Nashville Chancellor Ellen Hobbs Lyle to state and local election authorities to include clear and explicit language on any public advisories regarding eligibility for mail-in voting permission to apply on the basis of “underlying
medical or health conditions which in their determination render them more susceptible to contracting COVID-19 or at greater risk should they contract it” [italics ours].

The order also requires an explicit acknowledgement of eligibility for caretakers of “persons who have underlying medical or health conditions which in their determination render them more susceptible to contracting COVID-19 or at greater risk should they contract it.” It also requires the State to ensure that county election officials use the same language in their instructions to voters.

Chancellor Lyle’s order requires that state Election Coordinator Mark Goins file “a Declaration with this Court by noon, September 1, 2020” that the order has been complied with.

The order was in response to a petition from plaintiffs Up the Vote 901, a group of Memphians (as well as the ACLU), that states election officials had not followed through on instructions from the state Supreme Court, which, in dismissing a temporary injunction
by Chancellor Lyle requiring universal mail-in eligibility, directed election authorities to make public the fact of eligibility in language like that quoted above in their public advisories.

The judge noted, as the plaintiffs had, that a spokesperson for the state had made a last-minute concession in the hearing before the High Court that anyone with such an underlying condition or their caretakers could vote absentee, and that individual voters were entitled to determine for themselves their susceptibility to contracting COVID-19.

It now remains to be seen if the state, which has consistently procrastinated in dealing with such directives as Lyle’s or actively resisted them, will avail itself of yet another appeal in relation to the current order.

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Citing Improvements at Jail, Judge Declines Release of Inmates

U.S. District Judge Sheryl Lipman on Friday declined to rule in favor of a lawsuit seeking the emergency release from Shelby County Jail of detainees deemed vulnerable to COVID-19, but various supporters of the litigation are still managing to find a silver lining in the ruling. 

Judge Lipman found that, while there were indeed issues “with how the jail is detaining medically vulnerable detainees amid this pandemic,” authorities at the jail had taken steps to remedy some of the health risks and problems.

In a news release, the American Civil Liberties Union of Tennessee, which was one of several plaintiffs, acknowledged some of the improvements:

“ [T]he jail changed some of its practices, including limiting the number of detainees brought to court and how they were being held while awaiting hearings to prevent co-mingling between potentially quarantined and non-quarantined inmates; increasing the availability and use of videoconference access to hearings; providing cleaning supplies for sanitizing individual and common areas; and ensuring all detainees wear masks and imposing social distancing where possible throughout the jail.”

And Judge Lipman noted several matters still in need of correction:

“[G]rave areas of concern persist,” she said..”…[T]he facts found by the Court indicate that detainees do sleep within less than 6 feet of each other, contrary to the CDC guidelines. … detainees do not socially distance during mealtimes. … Also, while detainees are given their medications one-by-one during pill call, they are lined together without social distancing. … Requiring medically-vulnerable detainees to receive their medications by waiting in a crowded line is a cruel ask.”

She concluded, however, that “to the extent these public health failures persist, they … can be easily remedied. … It behooves the jail to work creatively toward improving these conditions.”

Besides the ACLU, other plaintiffs were Just City; Paul, Weiss, Rifkind, Wharton & Garrison LLP; and attorneys Brice Timmons and Steve Mulroy of Memphis.

Mulroy responded to the ruling by saying, in part, “We’re glad the court recognizes that conditions at the jail were severely lacking before we filed suit; that improvements have been made as a result of our suit; and, most importantly, that much more still can and should be done to eliminate unnecessary pandemic risks at the jail.”

Timmons said “Justice and humanity demand that we continue our work to hold the sheriff accountable. He has a duty to protect the community, including those in his custody.”

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Judge Rejects State Non-Compliance Efforts on Absentee-Vote Order

The Flyer has learned that Davidson County Chancellor Ellen Hobbs Lyle has denied a motion from state attorneys seeking a stay of her order last week to permit universal absentee voting this year.

On Friday, Lyle had ruled affirmatively on legal motions on behalf of mail-in voting during the pandemic. The suits had been brought both by Memphis representatives of Up the Vote 901 and by members of the American Civil Liberties Union. But, as indicated in evidence presented by the plaintiffs on Monday, the state appeared to have resolved to take an obstructionist course rather than comply immediately with Lyle’s ruling.

The evidence included:

*the transcript of a telephone conversation between state Representative London Lamar of Memphis and personnel of the Secretary of State’s office who temporized and delayed rather than comply with Lamar’s request for an absentee ballot;

*a Twitter thread from an East Tennessee voter who documented efforts by the Knox County Election Commission to discourage her from voting absentee and threatened her with prosecution for fraud; and

*an email from state Elections Coordinator Mark Goins instructing election officials to “hold off on sending absentee applications to voters” who sought mail-in ballots for reasons relating to their apprehensions about contracting COVID-19 at the public polls.

Judge Lyle entered an ordered denying the state’s motion for a stay but permitting them to take the matter up on appeal. Meanwhile her original order on behalf of honoring vote-by-mail applications continues in effect, and she will preside over an upcoming hearing regarding sanctions against the state.

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Complainants Threaten New Suit On Behalf of COVID Victims in County Jail

A group of Individuals — including several well-known activists and representatives of such organizations as the American Civil Liberties Union — have served notice on Sheriff Floyd Bonner and Shelby County government at large that they are on the brink of further legal action on behalf of local jail inmates suffering from, or at risk of, COVID-19.

The group has already filed one suit seeking release of such inmates, resulting in a hearing conducted last week by U.S. District Judge Sheryl Lipman, who has not yet ruled on the matter. The new action is in the form of a demand letter — a de facto ultimatum — promising to take further legal action “to assert the detainees’ rights to reasonable health and safety, including adequate medical care.”

The lengthy, detailed letter cites testimony of eyewitnesses, including protesters arrested during the recent demonstrations against police brutality against African Americans, attesting to ”inadequate preventive measures” against COVID-19 at the jail, as well as “unsanitary conditions and a disturbing lack of medical care or attention for those who have tested positive.”

Among the allegations in the letter: “We understand that individuals who tested positive for COVID-19 were kept in isolation pods that each housed up to 70 people, with rows of two-person bunks less than five feet apart. … People kept in these pods had unreliable and inadequate access to such simple necessities as drinking water, and some people have resorted to drinking water out of the toilet.”

COVID-19 positive “detainees had vomit and feces on their clothing, bedding, and towels. Their blankets, towels, and sheets were not replaced during their weeks-long confinement to isolation pods, and their clothing was replaced only once.The utensils and cups detainees used to eat and drink were not cleaned or replaced while they were in isolation pods.”

The letter insists a series of remedial actions the county should take by 2 p.m.,Thursday of this week, in order to avoid further legal action. Aside from seeking such precautions as providing hygienic toilet articles and pursuing systematic disinfectant actions, the complainants ask for such measures as provision of fresh masks, regular testing, guarantees of social distancing and “non-punitive” quarantine facilities to house infected inmates.

The writers note the obvious: that measures taken on behalf of those already infected would also serve the purpose of protecting those not yet diagnosed with COVID-19. They ask for “prompt access to the facility by a public health expert identified by the undersigned for the purpose of evaluating conditions and making recommendations.”
The signatories include: |

Thomas H. Castelliand, Stella Yarbrough, Andrea Woods, Maria V. Morris, Zoe Brennan-Krohn, all representing ACLU jurisdictions here and nationally; Joseph J. Bial, Darren W. Johnson, Meredith L. Borner, and Jonathan M. Silberstein; and Steve Mulroy, Josh Spickler, and Brice Timmons of Memphis.

To see the letter In its entirety, see below:
[pdf-1]

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Groups Challenge Order to Postpone Elective Medical Procedures, Abortions


The Center for Reproductive Rights, along with two other organizations, is challenging an order by Tennessee Governor Bill Lee that essentially bans abortion procedures in the state.

Last week, in an executive order responding to the COVID-19 pandemic, Lee moved to limit “non-emergency healthcare procedures” until at least the end of the month. The order does not specifically cite abortion services, but instead reads in part, “All healthcare professionals and healthcare facilities in the state of Tennessee shall postpone surgical and invasive procedures that are elective and non-urgent.”

According to the order, these procedures include those that can be delayed because they do not “provide life-sustaining treatment, to prevent death or risk of substantial impairment of a major bodily function, or to prevent rapid deterioration or serious adverse consequences to a patient’s physical condition.” Read the full order below.

[pdf-1]

Patients who are less than 11 weeks pregnant will still be permitted to obtain medication abortions in the state.

The Center for Reproductive Rights, Planned Parenthood Federation of America, the American Civil Liberties Union (ACLU), and the ACLU of Tennessee filed an emergency lawsuit Tuesday to challenge the order.

The lawsuit argues that the governor’s order effectively bans abortion in the sate, violating Roe v. Wade, as well as a women’s right to liberty and autonomy under the Fourteenth Amendment.

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Additionally, the lawsuit argues that forcing women to travel out of state for abortion care or to carry an unwanted pregnancy to term, will increase the risks of COVID-19 spread.

Hedy Weinberg, director of the ACLU of Tennessee, said the actions of the state government “must be driven by science and public health, not politics.”

“The COVID-19 crisis cannot be used to prevent women from obtaining abortions,” Weinberg said. “Abortion is time sensitive and essential, and is not an elective procedure. You cannot just press pause on a pregnancy. During pandemic, women must still have access to a full spectrum of reproductive health care, including abortion, to protect their health.”

Ashley Coffield, president and CEO of Planned Parenthood of Tennessee and North Mississippi, said “abortion cannot wait.”

Unlike some medical procedures, delays can make it impossible for patients to access safe and legal abortions, she said. Coffield also adds that this order will “undoubtedly disproportionately” impact vulnerable communities, such as communities of color, young people, those with low incomes, and the LGBTQ community.

“These folks are making difficult decisions about how to pay bills and care for their families during a pandemic — they should not be forced to continue a pregnancy against their will, too,” Coffield.

Rebecca Terrell, executive of CHOICES Memphis Center for Reproductive Health, said that abortion is time sensitive: “Our patients cannot wait until this pandemic is over. They are panicking and many have no idea when or if they’ll be able to have an abortion. Patients are now being forced to travel out of state, which will only harm efforts to contain the spread of the virus. There is no sense in denying them abortion care here in their own communities.”

Read the full complaint below. 


[pdf-2]

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Judge Denies City’s Request to Modify Decree on Police Surveillance

CREDIT: Brandon Dill

Brandon Dill

Michael Rallings with crowd during protest

The city’s motion to immediately modify the 1978 consent decree prohibiting police surveillance was denied this week by a federal judge.

Last year, U.S. District Judge Jon McCalla ruled that the Memphis Police Department (MPD) violated the decree by participating in political surveillance on activists here.

In September, the city filed a sealed motion with the court to “significantly modify” the 1978 Kendrick consent decree. The city argued that the decree “unduly burdens legitimate investigative activities and creates restrictions that are unnecessary for the protection of First Amendment rights,” according to recently unsealed court documents.

The city said the consent decree prohibits MPD from “using other agencies or persons as ‘surrogates’ to do indirectly what it could not do directly,” preventing coordination between law enforcement agencies.

Specifically, the city said the consent decree has a “detrimental effect” on the city’s participation in the Joint Terrorism Task Force, the Tennessee Fusion Center, the Multi-Agency Gang Unit, and CrimeStoppers. It also prevents sharing and receiving intelligence with federal agencies and the Shelby County Sheriff’s Department, the city said.

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The city also argues that assuring compliance with the consent decree and its “restrictions that go well beyond that which is required by federal law” requires the city to “expend scarce resources.”

The modified decree that the city requested would allow the use of political intelligence gathered by third parties.

McCalla denied the city’s motion, writing that modifying the decree in that way would “eviscerate the core goals of the Kendrick consent decree.”

Continuing, McCalla said any modification to the decree would need to be “carefully crafted after a thorough review of evidence and a finding of sufficiently changed circumstances compel a modification.”

“A change would need to achieve the goals of the Kendrick Consent Decree while providing the city and the MPD flexibility to engage in the sharing of information for legitimate law enforcement purposes,” McCalla wrote.

McCalla notes that because all parties have not agreed to the modification of the consent decree, there would have to be an evidentiary hearing before the court could make a ruling.

A telephone conference call between all parties is scheduled for January 2nd to discuss the possibility of scheduling an evidentiary hearing on the city’s requests to modify the decree.

Ahead of that meeting, the team appointed to monitor MPD’s adherence to the consent decree will present its quarterly progress to the court on Thursday, November 21st. The hearing will take place at 9:30 a.m. at the Clifford Davis-Odell Horton Federal Building.

Read McCalla’s full decision below.

[pdf-1]