Missouri Attorney General Andrew Bailey’s last-minute push to move a lawsuit challenging restrictions on transgender care to federal court was denied Wednesday, with a federal judge ruling the matter belonged back in state court.
“You just can’t file something in federal court just because you want to be in federal court,” District Judge Henry Edward Autrey told Bailey’s top deputy, Solicitor General Josh Divine, during a Wednesday hearing. “There is something that sometimes bites people in the behind called jurisdiction.”
The lawsuit was originally filed in St. Louis Circuit Court, and was scheduled for a hearing in that jurisdiction Wednesday afternoon — one day before Bailey’s emergency rule limiting access to gender-affirming care is set to take effect.
After the attorney general’s office sought to move the lawsuit to a United States District Court, the American Civil Liberties Union of Missouri and Lambda Legal requested the judge remand it, or send it back to its original jurisdiction.
Wednesday’s hearing was not about the emergency order, though Divine’s argument began by emphasizing risks of gender-affirming care. Instead, the arguments focused on whether a federal court was the correct venue to hear the case.
Tony Rothert, legal director of the ACLU of Missouri, argued that while the original lawsuit alleges the emergency rule violates the U.S. Constitution, it cites state statute.
“Even when the constitution is mentioned,” he said, “we cite not to the constitution of the United States of America, we cite to the statute.”
Lawsuit seeks to block Missouri attorney general restrictions on transgender health care
Divine focused much of his argument on the timing of the hearing. He didn’t have time to craft a response to the request for remand, he told the judge Wednesday.
“They’re asking you to remand this without allowing us to file a brief in response to the remand request,” he said. “It’s extraordinarily irresponsible for them to be asking for this kind of schedule.”
Divine asked for more time to prepare.
“The idea that this can’t wait a day or two is ridiculous,” he said of the lawsuit involving an emergency regulation. “A single day or two is not an irreparable harm.”
Autrey interrupted and told Divine to focus his argument on the matter of jurisdiction. Then, the judge gathered the timeline of the lawsuit.
Rothert informed him that plaintiffs filed the original lawsuit Monday afternoon, and a hearing was scheduled for Wednesday in St. Louis. The attorney general’s office pushed for the case to be moved to federal court Tuesday evening.
Divine said he was in Jefferson City, a two-hour drive from the courthouse in St. Louis where he was originally scheduled to be.
The judge asked why the attorney general didn’t prepare someone in St. Louis for a hearing, pointing out the attorney general has an office in the city.
Bennett Clark, a senior attorney with Bryan Cave Leighton Paisner working with the ACLU, said the attorney general’s office shouldn’t be surprised about the lawsuit.
He said attorneys had spoken to the office prior to the suit’s filing, and news media had publicized the upcoming litigation.
“This so-called emergency process has been made to bring this emergency rule into effect without public comment,” he said.
Autrey’s closing comments focused not on the sense of urgency but his right to preside over the lawsuit.
He said a clear reading of the original lawsuit does not show any federal jurisdiction.
“Jurisdiction is not something that happens at the whim of a party, it doesn’t happen at the whim of a judge,” he said.
“To be in federal court,” he continued, “The court has to have jurisdiction.”
After returning to state jurisdiction, Divine filed to have the lawsuit moved to a new judge.
After returning to state jurisdiction, Divine filed to have the lawsuit moved to a new judge. Judge Ellen Ribaudo, appointed by former Gov. Jay Nixon, now presides over the case.
A hearing was set for later Wednesday afternoon.
If implemented, Bailey’s emergency order would place barriers to receiving gender-affirming care, such as requiring three years of documented gender dysphoria prior to treatment.
