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Federal judge orders Arkansas attorney general to turn over documents related to gender ban

by Dale Ellis | April 7, 2022 at 7:02 a.m.
The Richard Sheppard Arnold Federal Courthouse in Little Rock is shown in this Jan. 16, 2021, file photo. (Arkansas Democrat-Gazette/Dale Ellis)

Attorneys with the American Civil Liberties Union won their fight to obtain some 4,500 emails from the Arkansas attorney general's office pertaining to transgender issues that attorneys for the state have tried to keep under wraps in a challenge to a transgender health care ban passed last year by the General Assembly.

In a one-page written order filed Wednesday, U.S. District Judge James M. Moody Jr. ordered attorneys with the office of Attorney General Leslie Rutledge to turn over the emails and to produce a privilege log within 10 days pointing out which of the 4,500 emails should be kept out of evidence.

Dylan Jacobs, deputy solicitor general at the attorney general's office, insisted during a hearing Tuesday in federal court that the content of those emails was irrelevant to the plaintiffs' case, a point contested by the plaintiffs' attorney, Daniel Richardson of Washington, D.C. Richardson told Moody it would be impossible to judge the relevance of the emails without seeing them.

Many, if not all, of the emails in question pertain to passage of the Gender Integrity Reinforcement Legislation for Sports (GIRLS) Act, which was drafted by Rutledge's office in reaction to an executive order signed by President Joe Biden banning discrimination on the basis of gender identity or sexual orientation.

Richardson contended that the emails in question are believed to contain relevant discussions within the attorney general's office and between state legislators, the state medical board and others regarding transgender issues.

Richardson said Rutledge's office had turned over a comparative handful of documents, most of which he said consisted of publicly available news releases related to the Save Adolescents From Experimentation (SAFE) Act and the GIRLS Act, but he said no drafts of news releases, emails pertaining to the drafting of the releases or other emails were included.

Moody seemed skeptical of the state's position during the hearing, at one point asking if Jacobs was trying to say, on the record, that the emails pertaining to the banning of transgender girls from girls' sports had nothing to do with transgender people.

Jacobs demurred on that point but continued to maintain the emails bore no relevance to the plaintiffs' case, despite Moody's continued questioning of whether the emails related at all to transgender issues.

"It's an easy question," Moody said at one point. "Just answer it."

In early April of last year, the General Assembly passed the SAFE Act by a vote of 72-25 in the House and 25-8 in the Senate, overriding a veto by Gov. Asa Hutchinson, who described it as a legislative overreach into the relationship between doctors, patients and their families.

Although the law purports to prevent medical experimentation on minors, medical experts in gender-diverse health care say the treatments banned by the law have been used successfully for decades. In addition to hormone therapies and puberty blockers, the law bans gender-affirming surgical procedures that were not performed in the state prior to passage of the law.

In May, four families of transgender youths in Arkansas and two doctors filed a challenge to the SAFE Act seeking to block its implementation on the grounds that it violates the equal protection clause of the U.S. Constitution. It is currently on hold by order of Moody until the matter is resolved in court.

Richardson told Moody during Tuesday's hearing that, as part of that lawsuit, attorneys for the plaintiffs first asked for documents relevant to the SAFE Act some five months ago. He said the plaintiffs have been stonewalled at every step since then as they have attempted to obtain relevant documents through the discovery process.

Rutledge, through a spokesperson in her office, continued to maintain the documents sought by the plaintiffs bear no relevance to the case.

"The Attorney General is disappointed in the ruling that requires production of irrelevant materials," Amanda Priest said in a text message Wednesday.

Holly Dickson, executive director of the ACLU of Arkansas, said the reluctance of Rutledge's office to repeated discovery attempts suggests how important it is to be able to look into the office's decision-making process and its role in passing legislation.

"Their resistance to producing documents highlights the importance of the families' -- and the public's -- ability to know the actual reasons for this unprecedented attempt to intrude on families getting medically necessary gender affirming care for trans youth," Dickson said in an email.

Print Headline: ACLU wins access to state emails in gender-ban suit

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