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Judge threatens to jail lawyers challenging state’s law banning gender-affirming care

The attorneys say the order is an abuse of judicial power.

U.S. District Judge Liles C. Burke
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U.S. District Judge Liles Burke, a Trump appointee, has ordered a group of lawyers to hand over an otherwise confidential document or potentially face sanctions and even imprisonment.

Burke is the judge overseeing Boe v. Marshall, the lawsuit challenging an Alabama law that criminalizes the provision of gender-affirming care to minors. The numerous lawyers involved in representing the plaintiffs—about 40 in all—have been under the microscope for nearly two years over allegations that they participated in unlawful forum-shopping.

A three-judge panel has already found that the lawyers did impermissibly shop for judges, hoping to avoid drawing Burke due to concerns by the lawyers about the politically charged nature of the issue and Burke’s conservative background. Burke ironically agreed with the plaintiffs and issued an injunction that halted the state’s law, although that decision has since been overturned by the 11th Circuit Court of Appeals.

Burke is to decide the sanctions on the attorneys, but Friday issued an order for some of the involved lawyers to turn over a Q&A document by 5 p.m. Monday, May 20, just one business day later. If they failed to do so, they could face monetary sanctions and be taken into custody, the order said. 

The unusual order was first noted by Chris Gender, of LawDork.

The lawyers specified are some of the nation’s top LGBTQ+ civil rights attorneys: James Esseks of ACLU; Carl Charles of the Justice Department; LaTisha Faulks of ACLU of Alabama and Milo Inglehart, Transgender Law Center.

Burke claims that the document is not protected by attorney-client privilege or work-product doctrine if the “crime-fraud exception” applies—which Burke said requires the court to review the document in camera.

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The attorneys on Monday filed a petition for a writ of mandamus or a stay from the 11th Circuit, calling the order “an abuse of the judicial power that this court should not countenance.”

The showdown is on hold for now, as simultaneous to the filing, Burke extended the due date of the document by one week to May 28, leading the lawyers to rescind their petition for mandamus for the time being.

The ban on gender-affirming care for minors experiencing gender dysphoria remains in effect in Alabama while the case awaits a full trial before Burke.

Jacob Holmes is a reporter at the Alabama Political Reporter. You can reach him at [email protected]

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