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Gillingham, Allison

DigitalCommons@NYLS 
NYLS Community News History & Archives 
11-8-2024 
NYLS Earns High Marks from preLaw Magazine in 3 Key 
Academic Area 
Allison Gillingham 
Marketing&Communications@nyls.edu 
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Recommended Citation 
Gillingham, Allison, "NYLS Earns High Marks from preLaw Magazine in 3 Key Academic Area" (2024). 
NYLS Community News. 164. 
https://digitalcommons.nyls.edu/community_news/164 
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Since 1891
WE ARE NEW YORK’S LAW SCHOOL
New York Law School (NYLS) is proud to be named 
among the “Top Schools” in preLaw magazine. In 
preLaw magazine’s fall 2024 issue, NYLS earned high 
marks in racial justice, business, and criminal law. 
Learn more about the School’s standout programs in 
these areas.
Racial Justice
At NYLS, students have an opportunity to work at the forefront 
of racial justice through the Racial Justice Project (RJP), a legal 
advocacy organization dedicated to protecting the constitutional 
and civil rights of people who have been denied their rights on 
the basis of race. RJP also works to increase public awareness of 
racism and racial injustice in the areas of education, employment, 
political participation, economic inequality, and criminal justice. 
They also host events with racial justice experts, including a 
recent conversation with Professor Pumla Gobodo-Madikizela, 
2024 Templeton Prize Laureate, on her groundbreaking insights 
into the mechanisms of trauma and forgiveness. A wide array of 
NYLS clinics and simulation courses also focus on racial justice, 
and our students have the opportunity to gain critical education 
about the myriad ways that they can become agents for change 
and justice. Among these offerings, Wilf Impact Public Interest 
Scholars and Postgraduate Fellows can also concentrate their 
work in racial justice. Wilf Scholars and Fellows work closely with 
faculty leaders on the front lines of our nation’s most important 
civil rights challenges and collaborate with external social justice 
organizations which operate in partnership with NYLS.
Business Law
NYLS has long been established as a business law leader 
for its impressive programs through the Center for Business 
and Financial Law. The School has an exceptional history of 
preparing graduates for careers in the business sector, including 
at innovative businesses, top financial institutions, regulatory 
agencies, and law firms. Institutes within the Center like the 
James Tricarico Jr. Institute for the Business of Law and In-House 
Counsel and the Ronald H. Filler Institute for Financial Services 
Law provide a range of opportunities in in-house counsel and 
financial services law education for law students and practitioners. 
Students have the opportunity to attend special events and 
programming where they can meet with and learn from the 
School’s extensive network of business and financial service 
leaders.
Students can also gain real-world experience in a variety of clinics 
and experiential learning opportunities. For instance, law students 
in the Securities Arbitration Clinic learn the skills they need to 
represent clients in securities arbitration proceedings before 
the Financial Industry Regulatory Authority (FINRA) under the 
supervision of NYLS faculty, and students who take the week-
long intensive Mini M.B.A. program engage with a broad range of 
professional topics that prepare them for the job market as they 
network with expert practitioners and business leaders.
Criminal Law
NYLS’s comprehensive criminal law program, which includes 
robust coursework mixed with extensive real-world experience, 
helps law students sharpen their practical legal skills. Students 
can work directly with police officers, victims, and witnesses 
to prosecute misdemeanor cases through the School’s two 
Criminal Prosecution Clinics, which partner with the Manhattan 
and Brooklyn District Attorney’s Offices. Students can also work 
with The Legal Aid Society to represent low-income defendants in 
misdemeanor cases from arraignment through trial in the Criminal 
Defense Clinic.
NYLS institutes such as the 21st Century Policing Project (P21) 
and the Criminal Justice Institute provide students ample 
additional opportunities to address the defining challenges of our 
current systems, and prepare them to lead on issues of policing 
and criminal justice.
In addition, NYLS is expanding opportunities for students to 
engage with restorative justice efforts through new courses, 
externships, education, and advocacy work.
NYLS Earns High Marks from 
preLaw Magazine in 3 Key  
Academic Area
Allison Gillingham  •  Published  November 08, 2024
Find more NYLS stories at news.nyls.edu.


English

NYLS Earns High Marks from preLaw Magazine in 3 Key Academic Area

Leonard, Arthur S.

Incarcerated Persons Litigation | Notes

Wice, Jeffrey M.

DigitalCommons@NYLS 
Redistricting Roundtable Updates NY Elections, Census, and Redistricting Institute 
12-30-2024 
December 30 Elections, Census & Redistricting Update 
Jeffrey M. Wice 
Follow this and additional works at: https://digitalcommons.nyls.edu/redistricting_roundtable_updates 
 
 
 
 
 
N.Y. ELECTIONS, CENSUS & REDISTRICTING UPDATE 
 
N.Y. VOTING RIGHTS ACT LITIGATION 
 
Nassau County Legislature: Coads et al. v. Nassau County & 
NY Communities for Change (NYCC) v. Nassau County 
 
On December 23rd, Nassau County submitted paperwork to remove the challenges 
to the county’s legislative map from state court to the United States District Court for 
the Eastern District of New York County. The county argues that a question exists 
allowing for federal jurisdiction: whether the plaintiffs can satisfy the standards of 
Section 2 of the federal Voting Rights Act (VRA). Section 2 of the VRA contains 
multiple “exacting requirements” and safeguards that a plaintiff must satisfy to prove 
vote dilution, which Nassau County argues that the plaintiffs have failed to satisfy. 
The filing includes 807 pages of relevant material. 
 
On December 26th, the Coads and NYCC plaintiffs filed a memorandum of law 
(“memo”) in support of their joint motion “by order to show cause for immediate 
remand” to keep the cases before the state court. The memo included five 
arguments. First, the notice of removal is untimely. Second, this court lacks subject 
matter jurisdiction to hear this case. 
 
Third, Nassau County failed to obtain the consent of all properly joined and 
necessary defendants for these actions. Fourth, this motion warrants expedited 
treatment and immediate remand to the lower court so that trial may resume 
promptly. Lastly, the plaintiffs are entitled to attorneys’ fees. 
 
On December 26th, attorneys for counsel for the Coads plaintiffs filed a “declaration” 
in support of the plaintiffs’ joint motion to show cause for immediate remand. On 
December 26th, counsel for the plaintiffs also submitted a proposed order to show 
cause. 
 
In response, on December 29th, the county’s attorneys submitted a memorandum of 
law to the federal court arguing that there were substantial questions of federal 
voting rights law involved in the case and objected to sending the case back to the 
state court. The federal judge assigned to the case is Judge Joan Azrack (New York 
Law School, 1979). 
 
Also of interest on December 29th, one of the county’s outside attorneys, Mary 
“Molly” DiRago, filed a declaration with the federal court stating that state Supreme 
Court Justice Marx, who is hearing the state cases, called her to the bench after last 
week’s hearing concluded and suggested to her (in private) that he wanted to “get 
the case settled.” He asked, “What the hell are those guys doing?” She stated that 
“those guys” referred to her county clients. She also stated that “‘it was pretty clear 
what went on,’ and that he was going to ‘blow the lid off this thing’ if we did not settle. 
 
 
I took this to be referencing his belief that my clients intentionally gerrymandered the 
legislative map at issue in the State Court actions.’” 
 
N.Y. LEGISLATION 
 
State to Collect Demographic Data on Middle Eastern & North 
African New Yorkers 
 
On December 20th, Governor Kathy Hochul signed legislation (Chapter 657/Bill 
S.6584C) that will require separate count categories for White, Middle Eastern, and 
North African groups in New York State. The legislation was sponsored by Senator 
Mike Gianaris in the Senate and by Assemblywoman Jessica Gonzalez-Rojas. 
  
The new law would require every state agency, board, department, or commission 
that collects demographic data as the ancestry or ethnic origin of residents, to use 
separate collection categories for the “White” group in New York State. The 
collection categories and tabulations include the following North African and Middle 
Eastern Groups: 
 
1.    Major North African (NA) groups: Egyptian, Moroccan, Sudanese, Algerian, 
Tunisian, and Libyan; and 
2.    Major Middle Eastern (ME) groups: Yemeni, Iranian, Palestinian, Iraqi, 
Lebanese, Israeli, Jordanian, Syrian, Armenian, and Saudi; and 
3.    Other Middle Eastern and North African (MENA) groups. 
 
N.Y. Automatic Voter Registration Starts in Late 2025 
 
In the Albany Times Union, Emilie Munson reported that the state Board of Elections’ 
launch for automatic voter registration will be ready in the second quarter of 2025 – 
more than two years after the implementation date for the law. You can read the 
article here:  https://bit.ly/4gW8T8Q. 
 
AROUND THE NATION 
 
New York Joins State Attorneys General In Amicus Brief 
Supporting Louisiana’s Congressional Redistricting Map 
 
On Friday, an amicus brief was filed in Louisiana v. Callais for a coalition of twenty 
attorneys general. The brief supported Louisiana and a group of Louisiana voters 
who are seeking to uphold a 2022 congressional map that features two majority-
Black districts. 
 
This case centers on Louisiana’s response to a federal district court’s ruling in 2022, 
which stated that Louisiana was likely violating Section 2 of the VRA by only having 
one majority-Black district. The case went to the U.S. Supreme Court and was sent 
back to the lower court, where the court ruled that Louisiana was required to redraw 
the map by January 2024 or otherwise go to trial. The state believed that a trial 
would result in the court imposing its own map, so the Louisiana Legislature went 
 
 
into a special session and drew a new map that included a second majority-Black 
district. 
 
However, after the map was signed into law, a group of “non-African Americans” (as 
they identified themselves), sued Louisiana and alleged that the new map was an 
unconstitutional racial gerrymander. A three-judge panel in the Western Louisiana 
District Court ruled in favor and blocked the new map from being used. Louisiana 
appealed and received an emergency stay from the U.S. Supreme Court in May 
2024 to block the lower court’s injunction.  
 
This case has now returned to the U.S. Supreme Court. The question is whether the 
three-judge court erred in enjoining Louisiana’s map as an unconstitutional racial 
gerrymander. Supreme Court precedent provides states with “breathing room” to 
redraw voting districts with racial communities in mind when there is a “good reason” 
for the state to believe they must do so to comply with the VRA’s voting protections.  
 
In this case, Louisiana argues that it was trapped between contrary court orders due 
to the three-judge court, which undermined its ability to create a compliant map. 
Similarly, the amicus brief argues that the court failed to provide Louisiana with 
meaningful breathing room to comply with the VRA. States must receive flexibility to 
remedy VRA violations and this ruling threatens states’ primary role in redistricting. 
The brief also argued that Alabama Amici’s request to “jettison” the Court’s ruling of 
Section 2 and Gingles should be rejected, as the decision is not presented for review 
in this proceeding and the Court has had a settled interpretation of both for decades. 
 
In addition to New York’s Attorney General, the amicus brief included the attorneys 
general of California, Colorado, Connecticut, Delaware, the District of Columbia, 
Hawaii, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Jersey, Oregon, 
Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin. 
 
UPCOMING EVENTS 
 
New York “American Community Survey” Census Conference 
 
“ACS On The Road” on January 28, 2025: Join New York Law School, New York 
Counts, the Population Reference Bureau, New York City Planning Department, and 
the U.S. Census Bureau to learn how different data users in New York City use 
American Community Survey (ACS) data. We will conclude with small breakout 
sessions where you will have the opportunity to interact with Census Bureau staff 
and share what you need to better use ACS data in your own work.  
 
The event will be held at New York Law School, 185 West Broadway, Manhattan 
from 9:00 AM to 2:00 PM. Registration is required. You can register here: 
https://nyls.wufoo.com/forms/qnqo80v1iobqqa/. 
 
 
The N.Y. Elections, Census & Redistricting Institute is supported by grants 
from the New York Community Trust, New York Census Equity Fund, the 
Alfred P. Sloan Foundation, and the New York City Council. This report was 
prepared by Jeff Wice & Alexis Marking. 


December 30 Elections, Census & Redistricting Update

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DigitalCommons@NYLS 
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The 2024 Summer Research Challenge is On 
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Each session will challenge you to tackle a concrete research 
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Attend the sessions that most interest you. Complete all four 
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DigitalCommons@NYLS 
Other Publications Faculty Scholarship 
8-2024 
Supreme Court Refuses to Narrow Preliminary Injunctions Against 
Biden Administration’s New Title IX Rule 
Arthur S. Leonard 
Follow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubs 
22   LGBT Law Notes   August/September 2024
Supreme Court Refuses to Narrow 
Preliminary Injunctions Against Biden 
Administration’s New Title IX Rule
By Arthur S. Leonard
On August 16, the Supreme Court 
issued a per curiam opinion denying 
an emergency application by the 
Biden Administration partially to 
stay preliminary injunctions issued 
by district courts in Louisiana v. 
Department of Education and Tennessee 
v. Cardona, Secretary of Education. See 
Department of Education v. Louisiana, 
No. 24A78; Cardona v. Tennessee, No. 
24A79, 2024 WL 3841071. These cases 
involve challenges by groups of states 
to the Department of Education’s new 
Rule implementing Title IX, which was 
published in the Federal Register in 
April 2024 and scheduled to take effect 
on August 1. Some of the lower court 
litigation has previously been reported 
in earlier issues of Law Notes and in 
articles above in this issue. 
The essence of the government’s 
emergency application was to seek a 
narrowing of the preliminary injunctions 
to focus on a handful of provisions 
in the lengthy (400+ page) new Rule, 
so as to confine preliminary relief to 
the issues raised by the plaintiffs in 
their motions for preliminary relief. 
The plaintiffs are attacking the new 
definition of “on the basis of sex” as a 
prohibited ground of discrimination. 
This phrase is not further defined in 
Title IX itself and had not been defined 
in prior rules or regulations, although 
it has been discussed in “guidance” 
documents issued by the Obama and 
Biden administrations. The Rule, 
adopted under the notice and comment 
requirements of the Administrative 
Procedure Act (APA), defines this phrase 
to “include discrimination on the basis 
of sex stereotypes, sex characteristics, 
pregnancy or related conditions, sexual 
orientation, and gender identity.” 
Plaintiffs particularly object to the 
inclusion of “gender identity.” 
They also object to two other 
provisions of the Rule relating to “gender 
identity”: one providing that Title IX 
generally permits “different treatment 
or separation on the basis of sex” only to 
the extent that such differential treatment 
or separation does not “discriminate . . 
. by subjecting a person to more than 
de minimis harm,” a provision intended 
to allow transgender students to use 
restroom and locker room facilities 
consistent with their gender identity, and 
the other provision stating that a policy 
or practice that “prevents a person from 
participating in an education program 
or activity consistent with the person’s 
gender identity subjects a person to 
more than de minimis harms on the 
basis of sex,” intended to deal with 
hostile educational environment claims, 
including claims involving naming 
and pronouns, making clear that they 
are available to protect transgender 
individuals from verbal misgendering 
or “dead-naming.” 
Plaintiffs argued that the entire 
400+ page rule should be preliminarily 
enjoined because, in their view, the 
definition of “on the basis of sex” 
permeates all the provisions of the rule 
and cannot be severed. The district 
judges agreed with the plaintiffs. The 
government petitioned the 5th and 6th 
Circuits to narrow the preliminary 
injunctions, arguing that they should 
only extend to the specific provisions 
that plaintiffs had claimed as a source of 
injury if not enjoined, but it was rebuffed 
by both Circuits. The 6th Circuit’s 
decision denying the petition is reported 
as State of Tennessee v. Cardona, 2024 
WL 3453880, 2024 U.S. App. LEXIS 
17600 (6th Cir., July 17, 2024). The 5th 
Circuit’s denial is published as State 
of Louisiana v. U.S. Department of 
Education, 2024 WL 3452887 (5th Cir., 
July 17, 2024). Thus, this emergency 
application to SCOTUS. 
The vote to deny the motions was 
5-4, with the per curiam representing 
the views of Chief Justice John Roberts 
and Justices Clarence Thomas, Samuel 
August/September 2024   LGBT Law Notes   23
New Hampshire U.S. District Court 
Grants TRO to Transgender Girl Seeking 
to Continue Playing on Girl’s High 
School Soccer Team
By Arthur S. Leonard
Chief U.S. District Judge Landya 
McCafferty of the U.S. District 
Court of New Hampshire granted a 
temporary restraining order (TRO) to 
plaintiff Parker Tirrell, a transgender 
girl who is a rising sophomore in the 
Pembroke School District and seeks 
to continue playing on the girls’ high 
school soccer team. A New Hampshire 
statute forbidding transgender girls 
from competing on girls’ teams was 
scheduled to go into effect the day 
before the beginning of soccer team 
practice for the Fall 2024 semester. 
Tirrell had been competing in girls’ 
sports in the Pembroke School District 
for several years without incident but 
would have been barred from the team 
if the statute was applied to her. Judge 
McCafferty found that Tirrell was likely 
to prevail on her claim that the law 
violates the Equal Protection Clause 
of the 14th Amendment and Title IX of 
the Education Amendments of 1972 and 
would be irreparably injured if denied a 
TRO to continue playing while her case 
is litigated. Tirrell v. Edelblut, 2024 WL 
3898544, 2024 U.S. Dist. LEXIS 150777 
(D. New Hamp., August 22, 2024). 
Judge McCafferty ruled favorably on 
the motion for TRO at the conclusion of 
a hearing on August 19 and issued this 
opinion explaining her ruling a few days 
later. Throughout the opinion, the judge 
refers to the plaintiff by her first name 
as “Parker.”
Parker Tirrell, age 15, identified as 
male at birth, “knew she was a girl from 
an early age,” wrote Judge McCafferty, 
and began dressing as a girl when at 
home, “engaging in stereotypically 
female childhood activities,” and 
socialized with other girls. She began to 
suffer mental distress at age twelve and 
was diagnosed with gender dysphoria 
after being evaluated at a clinic by 
“a team of providers that specialize 
in diagnosing and treating gender 
dysphoria in children and adolescents.” 
She began publicly socially transitioning, 
using female pronouns, wearing dresses 
and skirts to school, and also including 
participating in girls’ sports and using 
girls’ facilities at school. She began 
puberty blockers towards the end of her 
8th grade school year and began female 
hormone therapy in 9th grade. She 
has developed physiological changes 
associated with female puberty and 
will not undergo male puberty. She 
has played on girls’ soccer teams and 
some other sports in elementary and 
high school and was prepared to begin 
practice for the Fall 2024 soccer season, 
but New Hampshire passed a law on 
July 19, 2024, HB 1205, that prohibits 
transgender girls from participating in 
girls’ sports, to take effect on August 
18, as noted above one day before the 
beginning of the high school girls’ 
soccer team practice. 
This lawsuit was filed on August 
16 on behalf of Tirrell and another 
transgender student, alleging violations 
of equal protection and Title IX, seeking 
declaratory judgment and injunctive 
relief, suing the named defendants, 
including the state’s Education 
Commissioner, in their official capacity 
only, and not seeking damages. On 
that date, Tirrell also filed a motion 
for a temporary restraining order and 
a preliminary injunction. The court 
quickly took up the motion for TRO, 
given the imminent start of soccer 
training season, and held a TRO hearing 
on August 19.
The judge determined that Tirrell 
was likely to succeed on the merits of her 
equal protection claim, as heightened 
scrutiny applies, and the defendants 
could not show that enforcement of the 
statute in Tirrell’s case was substantially 
related to achieving important 
Alito, Bret Kavanaugh, and Amy 
Coney Barrett. Justice Sonia Sotomayor 
partially dissented in an opinion joined 
by Justices Elena Kagan, Neil Gorsuch, 
and Ketanji Brown Jackson. Notably, 
Justice Gorsuch, who usually votes with 
the conservatives, wrote the opinion 
for the Court in the Title VII case of 
Bostock v. Clayton County, 590 U.S. 
644 (2020), holding that discrimination 
because of “transgender identity” 
may violate the ban on employment 
discrimination “because of sex.” Lower 
courts are divided about whether the 
reasoning of that decision should 
extend coverage under other “sex 
discrimination” laws to discrimination 
because of “transgender identity.” 
Plaintiffs in these challenges to the 
Title IX ruled argue that it should not. 
Justice Sotomayor’s opinion agrees 
with the Court’s majority that the 
preliminary injunction should remain 
in force as to the three provisions which 
she describes, but she argues that the 
rest of the Rule should be allowed to 
go into effect, giving many examples of 
provisions that have nothing to do with 
gender identity issues. The per curiam 
opinion faults the government for 
failing to provide the Court “a sufficient 
basis to disturb the lower courts’ 
interim conclusions that the three 
provisions found likely to be unlawful 
are intertwined with and affect other 
provisions of the rule” and continued, 
“Nor has the Government adequately 
identified which particular provisions, if 
any, are sufficiently independent of the 
enjoined definitional provision and thus 
might be able to remain in effect.” 
The Court noted that the 6th Circuit 
had set the government’s appeal of the 
preliminary injunction for expedited 
hearing and stated that it expected 
“the courts of appeals will render their 
decisions with appropriate dispatch.” ■ 


Supreme Court Refuses to Narrow Preliminary Injunctions Against Biden Administration’s New Title IX Rule

Lieberman, Jethro K.

Colonizing the Locker Room

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Center for Business and Financial Law

Fireside Chat | SEC Commissioner Hester Peirce: The Role of the SEC and Current Regulatory Developments

Brown, Heidi K.

Breaking Bad Briefs: A Snapshot of Lawyers, Litigants, and Experts’ Use (and Misuse) of GenAI in Court Filings

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New York Elections, Census, and Redistricting Institute

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New York Census and Redistricting Institute Event Posters 
6-18-2024 
New York Redistricting: What's Happened and What's Next? 
Center for New York City Law 
New York Elections, Census, and Redistricting Institute 
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OOL 
What Happened 
.:;,an·d What's Next? 
Second Floor Events Center 
185 West Broadway, NewYork, NY 10013 
RSVP at 
www.nyls.edu/CityLawRSVP 
In 2014, New York voters approved a 
constitutional amendment creating a new 
redistricting system. When first used, the 
new rules led to chaos and confusion, and a 
process ending two years later than it should 
have. This conference, presented by NYLS's 
New York Elections, Census, and Redistricting 
Institute, will explore what changed, what 
happened, and what should shift before 2030 
through new constitutional reform. 
CLE: 2.0 credits in Areas of Professional Practice 
(NY transitional and non-transitional) 
COST: Free of charge 
This event is co-sponsored by the Center for New 
York City Law and the New York Elections, Census, 
and Redistricting Institute 
Opening Remarks 
Anthony W. Crowell, Dean and 
President, NYLS 
Moderator 
Jeffrey M . Wice, Adjunct 
Professor and Senior Fellow, NYLS 
Speakers 
Brigid Bergin, WNYC & 
Gothamist 
Laura Bierman, NYS League of 
Women Voters 
Dr. Jonathan Cervas, 2022 NYS 
Special Master 
Hon. John Faso, former U.S. 
House Member 
Lucia Gomez, NYC Central 
Labor Council 
Hon. David Imamura, Former 
Chair, NYS Independent 
Redistricting Commission 
Ken Jenkins, Chair, NYS 
Independent Redistricting 
Commission 
Elizabeth OuYang, APA VOICE 
Grace Pyun, NYC Districting 
Commission 
Steven Romalewski, CUNY 
Graduate Center Mapping 
Service 
Cesar Ruiz, LatinoJustice 
PRLDEF 
Esmeralda Simmons, Activist 
Attorney 
Jerry Vattamala, Asian 
American Legal Defense and 
Education Fund 
Ben Weinberg, Citizens Union 
Since 1891 


New York Redistricting: What\u27s Happened and What\u27s Next?

DigitalCommons@NYLS 
Other Publications Faculty Scholarship 
8-2024 
11th Circuit Denies En Banc Review of Eknes-Tucker Panel 
Decision in Alabama Gender-Confirming Care Case, Generating 
Dissenting Opinions and “Statements” 
Arthur S. Leonard 
Follow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubs 
August/September 2024   LGBT Law Notes   3
11th Circuit Denies En Banc Review of Eknes-Tucker Panel 
Decision in Alabama Gender-Confirming Care Case, 
Generating Dissenting Opinions and “Statements”
By Arthur S. Leonard
On August 28, the 11th Circuit 
denied a petition for rehearing en banc 
in Eknes-Tucker v. Governor of the 
State of Alabama, 80 F.4th 1205 (11th 
Cir. 2023), rehearing en banc denied, 
2024 WL 3964753, 2024 U.S. App. 
LEXIS 21958 (11th Cir., August 28, 
2024). District Judge Liles C. Burke (a 
Trump appointee) issued a preliminary 
injunction in Eknes-Tucker v. Governor 
of the State of Alabama, 603 F.Supp.3d 
1131 (M.D. Ala. 2022), finding that 
Alabama’s newly enacted ban on 
prescribing or administering puberty 
blockers or cross-sex hormones to 
minors for purposes of gender transition 
was likely to be found unconstitutional 
and should be preliminarily enjoined 
while the case was litigated. The 
preliminary injunction was vacated 
by a panel of the Court of Appeals 
consisting entirely of Trump appointees. 
Judge Barbara Lagoa’s panel opinion 
was joined by Judge Andrew Brasher 
and U.S. District Judge J.P. Bouley 
(N.D. Ga.), sitting by designation. En 
banc rehearing and review (meaning a 
review by all the active judges of the 
11th Circuit) was denied on August 28, 
as noted above. Of the active judges of 
the Circuit, a majority are Republican 
appointees: Chief Judge William Pryor, 
appointed by George W. Bush, and six 
judges appointed by Donald J. Trump. 
Five active judges are Democratic 
appointees, one by Bill Clinton, three by 
Barack Obama, and one by Joe Biden. 
If Plaintiffs want to keep this case 
alive, as a practical matter they need 
to ask the Supreme Court to review it, 
since the approach taken by the panel 
in reversing the preliminary injunction 
order sends a clear message to Judge 
Burke that he should rule against the 
Plaintiffs on the merits.
Normally, the denial of a petition for 
en banc review is announced in a brief 
paragraph stating that the active judges 
of the circuit had been polled and a 
majority had voted against granting 
rehearing en banc. Sometimes this 
is accompanied by a relatively brief 
dissenting opinion on behalf of the 
judges who had voted to grant review. 
In this case, however, there were 
dissenting opinions by Circuit Judge 
Robin Rosenbaum (joined by Circuit 
Judges Jill Pryor and Adalberto Jordan), 
Circuit Judge Charles R. Wilson 
(joined by Judge Jordan), and Circuit 
Judge Jordan (joined by Circuit Judges 
Pryor and Rosenbaum). The dissents, 
sharply worded and painting a stark 
picture of the panel decision, provoked 
the publication of “statements” by 
Chief Judge Pryor to respond to Judge 
Rosenbaum’s dissenting opinion and 
by Circuit Judge Lagoa, the author 
of the panel decision, restating and 
amplifying it.
The dissents posited the correctness 
of Judge Biles’s ruling that plaintiffs 
were entitled to a preliminary 
injunction because they were likely 
to prevail on their constitutional 
arguments and had met the other 
criteria for preliminary relief pending 
trial. Judge Wilson’sdissent began: 
“This case presents numerous questions 
of ‘exceptional importance’ worthy of 
en banc review. Seeing that this case 
implicates the contours of substantive 
due process, fundamental rights, 
and equal protection, it is difficult to 
envisions issues of greater importance.” 
Judge Jordan began, “Substantive 
due process is hard. Acknowledging 
the complexity of the doctrine, I 
write to discuss what I perceive to be 
some analytical flaws in the panel’s 
opinion.” Judge Rosenbaum began, 
“If ever a case warranted en banc 
review, this is it. The panel opinion’s 
reasoning strips every parent in this 
Circuit of their fundamental right to 
direct that their children receive any 
medical treatment (no matter how well-
established and medically endorsed) – 
except for those medical treatments in 
existence as of 1868. Yes, 1868 – before 
modern medicine. So in the states 
of Alabama, Florida, and Georgia, 
blistering, blood-letting, and leeches 
are in, but antibiotics, antivirals, and 
organ transplants are out.” These 
introductions give the flavor of the 
dissents.
The most startling writing, however, 
can be found in Chief Judge Pryor’s 
“statement,” which dramatically 
expands on Supreme Court Justice 
Clarence Thomas’s writings disparaging 
the doctrine of substantive due process 
under the 5th and 14th Amendments as 
developed by the Supreme Court during 
the 20th century. 
Substantive Due Process has long 
been controversial because of its 
lack of a clear textual anchor in the 
Constitution. The 5th Amendment 
(1791) restricts the federal government, 
and the 14th Amendment (1868) restricts 
the states, from depriving anyone 
of life, liberty or property without 
“due process of law.” For much of the 
early history of the United States, this 
language was held to require procedural 
fairness in applying laws that adversely 
affected the life, liberty, or property of 
individuals. Over the course of the 20th 
century, the Supreme Court developed 
a substantive component of “due 
process” as a matter of interpretation, 
imposing a burden on the government 
to justify laws and governmental 
actions that would deprive individuals 
of life, liberty, or property where 
“fundamental rights” were concerned. 
The doctrine of substantive due process 
(i.e., that the substance of the statute 
itself did not comport with “due process 
of law”) was first applied to strike down 
progressive social legislation (such as 
laws regulating working conditions) on 
a theory that employers and employees 
had a fundamental freedom to contract 
over the terms of employment with 
4   LGBT Law Notes   August/September 2024
which the government could not 
interfere. But by the 1920s, substantive 
due process was invoked to strike 
down laws that deprived individuals 
of intellectual freedom, reproductive 
freedom, and social autonomy, and that 
specifically identified a fundamental 
right of parents regarding the 
upbringing of their children. Later, 
substantive due process was invoked by 
the Court in Griswold v. Connecticut, 
381 US 479 (1965), striking down laws 
criminalizing contraception to prevent 
pregnancy, and in Roe v. Wade, 410 US 
113 (1973), sharply restricting the states 
from criminalizing abortion, building 
on prior cases recognizing protection 
of “privacy” as a fundamental right. 
Most directly relevant to LGBTQ 
people, substantive due process was 
invoked by the Supreme Court to 
invalidate laws against consensual gay 
sex in Lawrence v. Texas, 539 U.S. 558 
(2003), and against same-sex marriage 
in Obergefell v. Hodges, 576 U.S. 644. 
Following Justice Thomas’s lead, 
Judge Pryor calls this a “flawed doctrine” 
that should not be expanded beyond the 
existing Supreme Court precedents, 
noting that the Supreme Court has 
been cutting back on those precedents, 
most spectacularly in Dobbs v. Jackson 
Women’s Health Organization, 597 US 
215 (2022), where the Court overruled 
Roe v. Wade and gave the states free 
rein to impose bans or restrictions on 
abortion, which about half of the states 
have promptly done. In Dobbs, Justice 
Samuel Alito wrote for the Court that 
only rights that were well-established 
when the 14th Amendment was adopted 
in 1868 could be deemed fundamental 
rights, and since most of the states 
criminalized abortion at that time, 
the 14th Amendment did not protect 
a right to abortion. In a concurring 
opinion, Justice Thomas went further, 
disparaging substantive due process 
and calling on the Court to reconsider 
other cases in which it had used that 
doctrine to strike down state laws, such 
as sodomy laws (Lawrence v. Texas) or 
bans on same-sex marriage (Obergefell). 
Notably, in 1868, consensual sodomy 
was criminalized by statute or common 
law doctrine in every state and no state 
recognized a right of same-sex couples 
to marry. Indeed, the topic of same-sex 
marriage was not even addressed in a 
Supreme Court decision until the 1970s, 
when the Court said it did not present 
a substantial constitutional question in 
Baker v. Nelson, 409 US 810 (1972).
The Plaintiffs in Eknes-Tucker 
argued that Alabama’s statute deprived 
parents of transgender minors of 
their fundamental right to provide 
for medical care for their children 
by making gender-affirming care 
unavailable. Applying century-old 
precedents in which the Supreme Court 
invoked due process to recognize 
fundamental parental rights of 
autonomy  in raising their children, 
Judge Biles found that Plaintiffs were 
likely to prevail on that theory. The 11th 
Circuit panel disagreed, picking apart 
the parental rights caselaw, which has 
been narrowed by the Court in recent 
years. Judge Pryor would apparently 
go further, challenging the legitimacy 
of any “fundamental rights” that are 
not explicitly listed in the Bill of 
Rights (first ten amendments of the 
Constitution, adopted in 1791), or 
solidly ensconced in a long history 
of Supreme Court precedent. Noting 
recent scholarship on the subject, Pryor 
wrote, “Disagreement on the edges of 
the scope of the right should not obscure 
the bottom line: substantive due process 
is an ahistorical ‘legal fiction’” (quoting 
Justice Thomas), and he asserts that 
there is “almost no historical support 
for the policy-second-guessing 
function that the doctrine performs 
today.” Even as of 1868 when the 14th 
Amendment was adopted, writes Pryor, 
“To trained observers no less than 
the ordinary man, the choice of the 
phrase ‘due process of law’ to afford 
constitutional protection to substantive 
rights would have seemed very odd . 
. . A constitutional doctrine that lacks 
foundation in text or history must draw 
its content from another source, and 
substantive due process has offered 
judges little more than scarce and 
open-ended platitudes.” He describes 
as “usurpation” the Court’s decisions 
striking down state and federal statutes 
under the doctrine of substantive 
August/September 2024   LGBT Law Notes   5
due process, calling it “freewheeling 
judicial policymaking” and calling Roe 
v. Wade a “discredited” decision. 
Judge Lagoa’s opinion, which 
addresses both substantive due 
process and equal protection, is a 
bit more restrained. However, as in 
the panel discussion, she insists that 
the requirement to adopt a “careful 
description” of fundamental rights 
means to describe the proposed right 
very narrowly with respect to the 
subject matter being addressed. In this 
case, according to the panel, the issue 
must be framed as whether a state 
may ban the specific gender-affirming 
procedures that are at issue, not more 
broadly as the right of parents to control 
the upbringing of their children, which 
would include the right to provide 
medical treatment consistent with the 
recommendations of their physician to 
engage in procedures recognized and 
approved in the medical community. In 
his dissent, Judge Wilson points out that 
there are numerous descriptions of the 
fundamental right at issue in this case, 
and that the divergent views of the 11th 
Circuit judges expressed in the panel 
decision, Judge Lagoa’s decision, and 
the several dissents, strongly suggests 
the appropriateness of considering the 
matter en banc to produce a definitive 
11th Circuit position on the description 
of the right that Plaintiffs assert.
As to Equal Protection, Judge 
Lagoa’s opinion for the panel and 
“Statement” concerning the denial of en 
banc review clings to the view that there 
is no discrimination based on gender 
identity in Alabama’s law and no proof 
of animus towards transgender people. 
Accordingly, the rational basis test 
applies, and it is rational for the court 
to refrain from granting a preliminary 
injunction when the testifying medical 
experts differ as to the safety and 
efficacy of gender-affirming care for 
minors. In reaching this conclusion, the 
panel rejected the argument that under 
the Bostock v. Clayton County decision 
by the Supreme Court, discrimination 
based on gender identity should be seen 
as a form of sex discrimination subject 
to heightened scrutiny. It is generally 
an article of faith among conservative 
Republican judicial appointees that 
Bostock applies narrowly to issues of 
hiring and firing employees under Title 
VII and has nothing to say about how 
to interpret the Equal Protection Clause. 
Once again it is noteworthy that the 
Equal Protection Clause does not specify 
prohibited grounds of discrimination, 
simply mandating that no person be 
deprived of “equal protection of the 
laws,” and leaving it to the courts to 
figure out what that means in particular 
cases. The methodology embraced by the 
Supreme Court during the 20th century to 
give content to that right is thus not text-
based, but judge created.  To the extent 
conservative judges proclaiming fidelity 
to the constitutional text may reject that 
methodology, it also means abandoning 
numerous precedents of their own 
circuit and of the Supreme Court. Judge 
Rosenbaum’s dissent points out that 
“the panel opinion fails to recognize 
as quasi-suspect the classifications 
the [Alabama] Act makes. Instead, it 
incorrectly applies rational-basis review 
to uphold the Act.” She states that the 
Act clearly discriminates based on 
both sex and sexual orientation, and 
that the failure of the panel decision to 
recognize this leads it into an erroneous 
analysis of the transgender plaintiffs’ 
Equal Protection claims.
Dissents from denial of en banc 
review have no precedential weight 
whatsoever but can provide a strong 
basis for persuading the Supreme Court 
to grant a petition for review. The Court 
will consider Equal Protection in the 
Skrmetti case during the 2024-25 Term. 
The is cert  grant in Skrmetti was based 
on the Solicitor General’s petition, 
which only raised Equal Protection 
claims; the Court did not grant the 
petitions for cert. brought by Tennessee 
and Kentucky plaintiffs, which raised 
Due Process as well as Equal Protection 
claims.   Plaintiffs here must decide 
whether to ask the Court to consider 
their Due Process claim—a potentially 
risky proposition, in light of the decision 
in Dobbs; the Court could erode the 
crucial LGBTQ rights recognized in 
Lawrence v. Texas and Obergefell 
v. Hodges?.. Surely there will be 
considerable debate among the LGBTQ 
rights litigation groups involved in these 
cases about what course to pursue. ■
11th Circuit Denies 
Petition for Review 
of Asylum Claim 
by Indian Lesbian
By Bryan Johnson-Xenitelis
The U.S. Court of Appeals for the 
11th Circuit denied the petition for review 
of the Board of Immigration Appeals’ 
decision denying asylum to a lesbian 
from India who claimed that she would 
face persecution if returned, in D’Souza 
v. U.S. Attorney General, 2024 WL 
3466573, 2024 U.S. App. LEXIS 17726
Petitioner arrived in the United States 
as a tourist in 2008. She overstayed her 
authorized status and in 2011 was placed 
in removal proceedings. She sought 
asylum, withholding of removal, and 
protection under the Convention against 
Torture (CAT). Petitioner claimed 
she “feared harm or mistreatment 
if she returned to India because she 
was forced to live a closeted life as a 
gay woman in India and was afraid 
that the Indian government and other 
individuals would hurt or kill her if she 
returned.” She described incidents from 
as young as age 11, when she suffered 
forms of harm including threats of 
jail, threats of being fired from a job, a 
physical altercation against a girlfriend 
of hers, and ostracization from and 
years without contact with her family. 
Petitioner submitted five documents 
in support of her application: “four 
news articles detailing the conditions 
for LGBT individuals in India and the 
U.S. Department of State’s India 2018 
Human Rights Report.”
The Immigration Judge (IJ) found 
Petitioner to be credible but held she 
had not established past persecution. 
The IJ noted that most of the events 
described happened in the 1970s and 
1980s and that none of the incidents 
rose to the level of persecution. The 
IJ found Petitioner had a subjectively 
genuine fear of returning to India but 
that it was not objectively reasonable. 
The IJ found: “The persecution against 
homosexual individuals in India was not 
so widespread that [Petitioner] would be 


11th Circuit Denies En Banc Review of Eknes-Tucker Panel Decision in Alabama Gender-Confirming Care Case, Generating Dissenting Opinions and “Statements”

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