Koe v. Noggle

• Docket Number: CIVIL ACTION NO. 1:23-CV-2904-SEG
• Decision Date: 20 August 2023
• Citation: 688 F.Supp.3d 1321
• Parties: Emma KOE, et al., Plaintiffs, v. Caylee NOGGLE, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

688 F.Supp.3d 1321

Emma KOE, et al., Plaintiffs, v. Caylee NOGGLE, et al., Defendants.

CIVIL ACTION NO. 1:23-CV-2904-SEG

United States District Court, N.D. Georgia, Atlanta Division

Signed August 20, 2023

Ami Rakesh Patel, Pro Hac Vice, Cynthia Cheng-Wun Weaver, Pro Hac Vice, Human Rights Campaign Foundation, Washington, DC, Benjamin Bradshaw, Carly Gibbs, Pro Hac Vice, Danielle Siegel, Pro Hac Vice, Meredith Garagiola, Pro Hac Vice, Patric Reinbold, Pro Hac Vice, O'Melveny & Myers, Washington, DC, Deanna M. Rice, Pro Hac Vice, O'Melveny & Myers LLP, Washington, DC, Cory Isaacson, Nneka Ewulonu, ACLU Foundation of Georgia, Atlanta, GA, Elizabeth Lynn Littrell, Southern Poverty Law Center, Decatur, GA, Jennifer Beard, Pro Hac Vice, O'Melveny & Myers, San Francisco, CA, Maya Gyan Rajaratnam, Southern Poverty Law Center, Miami, FL, Paul Sieben, Pro Hac Vice, O'Melveny & Myers LLP, Menlo Park, CA, Scott Daniel McCoy, Pro Hac Vice, Southern Poverty Law Center, Montgomery, AL, Stephen McIntyre, Pro Hac Vice, O'Melveny & Myers LLC, Los Angeles, CA, for Plaintiffs.

Cameron T. Norris, Pro Hac Vice, Jeffrey Matthew Harris, Pro Hac Vice, Tiffany Bates, Pro Hac Vice, Consovoy McCarthy PLLC, Arlington, VA, Patrick Strawbridge, Pro Hac Vice, Consovoy McCarthy PLLC, Boston, MA, Stephen John Petrany, Georgia Department of Law, Dunwoody, GA, for Defendants.

Cortlin Hall Lannin, Pro Hac Vice, Covington & Burling LLP - San Francisco, San Francisco, CA, D. Jean Veta, Pro Hac Vice, Emily Michelle Mondry, Pro Hac Vice, William Racilla Isasi, Pro Hac Vice, Yuval Mor, Pro Hac Vice, Covington & Burling LLP, Washington, DC, Meredith Charlotte Kincaid, Cross Kincaid, Decatur, GA, for Amici American Academy of Pediatrics, Academic Pediatric Association, Child, Association of American Medical Colleges, American Academy of Family Physicians, American Academy of Nursing, American College of Obstetricians and Gynecologists, American College of Osteopathic Pediatricians, American College of Physicians, American Pediatric Society, Association of Medical School Pediatric Department Chairs, Inc., Endocrine Society, National Association of Pediatric Nurse Practitioners, Pediatric Endocrine Society, Societies for Pediatric Urology, Society for Adolescent Health and Medicine, Society for Pediatric Research, Society of Pediatric Nurses, World Professional Association for Transgender Health.

ORDER

SARAH E. GERAGHTY, United States District Judge

This case is before the Court on Plaintiffs' motion for a preliminary injunction.(Doc. 2.)An evidentiary hearing was held on August 10 and 11, 2023.Having carefully considered the parties' positions and applicable law, the Court finds that Plaintiffs' motion should be granted.

I.Introduction

The Georgia General Assembly recently enacted Senate Bill 140 (SB 140), a law that bans certain medical procedures and therapies for minors who experience gender dysphoria.The act took effect on July 1, 2023.At issue in this case is SB 140's prohibition on cross-sex hormone replacement therapy for the treatment of gender dysphoria in minors.Plaintiffs are three transgender minors, their parents, and a community-based organization that provides support to parents of transgender minors.Defendants are state officials charged with the duty to implement the ban and to establish sanctions for its violation.Plaintiffs seek to enjoin Defendants from enforcing SB 140's prohibition on hormone replacement therapy, arguing that this provision of the law violates the Fourteenth Amendment's Equal Protection and Due Process clauses.¹

II.Background

The following facts are derived from the declarations, expert reports, exhibits, and testimony submitted to the Court.²

A.Senate Bill 140

On March 21, 2023, Georgia's General Assembly passed SB 140.On March 23, 2023, the Governor signed the bill into law.³2023 Ga. Laws 4.SB 140 amends O.C.G.A. § 31-7-1 et seq., which relate to the regulation of "hospitals and related institutions," and O.C.G.A. § 43-34-1 et seq., which relate to the duties and authority of the Georgia Composite Medical Board.Id.§§ 2, 3.SB 140 provides in part that none of the following "irreversible procedures or therapies" shall be performed in a licensed institution "on a minor for the treatment of gender dysphoria":

(1) Sex reassignment surgeries, or any other surgical procedures, that are performed for the purpose of altering primary or secondary sexual characteristics; or

(2) Hormone replacement therapies.

Id.§ 2(a);see also§ 3(a).

There are exceptions to SB 140's prohibitions.Relevant here, the new law does not prohibit hormone therapy for minors to treat "medical conditions other than gender dysphoria[.]"Id.§ 3(b)(1).So, for example, a physician may still provide testosterone to a natal adolescent male to treat delayed puberty without infringing the prohibition.Additionally, minors "who [were], prior to July 1, 2023, being treated with irreversible hormone replacement therapies" may continue their treatment.⁴Id.§ 3(b)(4).

SB 140 further provides an enforcement regime.The Georgia Department of Community Health("DCH") is tasked with "establish[ing] sanctions, by rule and regulation," for medical institutions that violate the act—"up to and including the revocation of an institution's permit issued pursuant to Code Section 31-7-3."Id.§ 2(c).And the Georgia Composite Medical Board is responsible for adopting rules and regulations regarding SB 140's prohibitions for Georgia-licensed physicians.Id.§ 3(b).Under the new law, a physician who violates SB 140's prohibition "shall be held administratively accountable to the board for such violation."Id.§ 3(c).

In enacting SB 140, the Georgia General Assembly made the following legislative findings:

(1) There has been a massive unexplained rise in diagnoses of gender dysphoria among children over the past ten years, with most of those experiencing this phenomenon being girls;

(2) Gender dysphoria is often comorbid with other mental health and developmental conditions, including autism spectrum disorder;

(3) A significant portion of children with gender dysphoria do not persist in their gender dysphoric conditions past early adulthood;

(4) Certain medical treatments for gender dysphoria, including hormone replacement therapies and surgeries, have permanent and irreversible effects on children;

(5) No large-scale studies have tracked people who received gender-related medical care as children to determine how many remained satisfied with their treatment as they aged and how many eventually regretted transitioning; on the contrary, the General Assembly is aware of statistics showing a rising number of such individuals who, as adults, have regretted undergoing such treatment and the permanent physical harm it caused;

(6) Under the principle of "do no harm," taking a wait-and-see approach to minors with gender dysphoria, providing counseling, and allowing the child time to mature and develop his or her own identity is preferable to causing the child permanent physical damage; and

(7) The General Assembly has an obligation to protect children, whose brains and executive functioning are still developing, from undergoing unnecessary and irreversible medical treatment.

2023 Ga. Laws 4 § 1(1)-(7).

B.Terminology

We turn next to definitions for certain terms used in this order.The parties appear to agree on the terms' meanings, and their experts employed them consistently with one another in their declarations and testimony.

At birth, infants are generally assigned a sex—either male or female—based on the appearance of their external genitalia, their internal reproductive organs, and their chromosomal makeup.(Doc. 93, LaidlawDecl. ¶¶ 14-15;Doc. 2-8, ShumerDecl. ¶ 24.)This is sometimes known as a person's "natal sex" or "birth sex."(Doc. 2-8, ShumerDecl. ¶¶ 27, 47.)

"Gender identity" is defined by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5) as "a category of social identity and refers to an individual's identification as male, female, or, occasionally, some category other than male or female."(Doc. 93, LaidlawDecl. ¶ 17.)Gender identity, in other words, is a person's internal, innate sense of belonging to a particular sex.(Doc. 2-8, ShumerDecl. ¶ 25.)

Transgender individuals are those whose gender identity does not align with their natal sex.(Doc. 2-8, ShumerDecl. ¶ 25;Doc. 91, HruzDecl. ¶ 22.)

"Gender dysphoria" is a condition defined by the DSM-5 as an incongruence between a patient's assigned natal sex and their gender identity that is present for at least six months, and which causes clinically important distress in the person's life.(Doc. 2-8, ShumerDecl. ¶ 37;Doc. 93, LaidlawDecl. ¶ 55;Diagnostic and Statistical Manual of Mental Disorders(DSM-5 TR)(APA 2022).)

C.Plaintiffs

Plaintiffs are three transgender children, four parents of transgender children, and an organization called TransParent.

Amy Koe is a 12-year-old transgender girl and the daughter of Emma Koe.(Doc. 2-2, KoeDecl. ¶ 4.)Amy and her family live in the Atlanta area, where Emma Koe was born and raised.(Id.¶ 3.)From an early age, Amy began to express persistently that she wished that "God would have made [her] a girl."(Id.¶¶ 5, 7.)Amy presented gender incongruencies for two to three years—preferring to wear girls' clothing, gravitating toward female friends, and stating her desire to look physically like a girl as she grew older.(Id.¶¶ 5, 10, 12.)From ages five to seven, Amy began experiencing sleep difficulties, waking up repeatedly throughout the night, every night, and not being able to return to sleep.(Id.¶ 12.)At age seven, Amy began mental health treatment and was diagnosed with gender dysphoria.(Id.¶ 14.)She then began to socially transition, presenting as a girl and going by "Amy" rather than her given name.(Id.¶ 7.)Amy's parents were "aware of the way the world treats transgender individuals,"...