CLAYTON — It’s not often that Anthony Rothert finds himself in total agreement with an opposing lawyer during a court hearing.
But there he was on Wednesday, doing just that. Rothert is an attorney for the American Civil Liberties Union. This week, the ACLU, Lambda Legal and the private law firm Bryan Cave Leighton Paisner filed a lawsuit in ºüÀêÊÓƵ County. They’re trying to block a proposed rule by Attorney General Andrew Bailey that would effectively ban all transgender health care in Missouri, including for adults.
Bailey tried to move the lawsuit to federal court, where a Zoom hearing was held Wednesday. Bailey’s top deputy, Solicitor General Josh Divine, complained to U.S. District Judge Henry Autrey that Rothert and his colleagues were using to paint Bailey as an out-of-control “despot.â€
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Guilty as charged, Rothert admitted.
“That is absolutely true,†Rothert told the judge. “That is what he is.â€
Indeed, Bailey’s proposed rule — applying a consumer law that is normally used to protect Missourians from fraudulent landlords and car dealers — is so unprecedented that even rabidly anti-LGBTQ Republicans like Secretary of State Jay Ashcroft and state Sen. Mike Moon have called it .
The hearing in federal court was nothing but a distraction, an attempt to delay the inevitable.
That came later in the day, when Circuit Judge Ellen Ribaudo put , at least until May 1, when she will issue a further ruling. But the attempt to move the case to federal court was telling; it exposed the emptiness of Bailey and Divine’s legal cupboard.
This is the bizarre new Republican reality. For most of my career, conservatives have railed against “activist judges†and “venue shopping†and “government overreach.†But those are the new planks of the Republican platform, where overly aggressive attorneys general try to block legislative action by finding a friendly judge in Louisiana or Texas or Florida. And they hope that judge will ignore precedent, overturn the will of the voters and tyrannically strip the freedoms of entire classes of people.
On Wednesday, Divine appeared before a judge who was appointed by a Republican president. He was seeking some sort of a pass but instead received a lecture on the law.
“You can’t just file something in federal court because you want to be in federal court,†Autrey told Divine, who used to work for Sen. Josh Hawley and clerked for U.S. Supreme Court Justice Clarence Thomas. “There is this little thing called jurisdiction.â€
Divine tried a Hail Mary pass, asking Autrey for a delayed ruling because Divine couldn’t get from Jefferson City to ºüÀêÊÓƵ County in time for the hearing that day. That strategy backfired too, with Autrey reminding Divine that the attorney general’s office has lawyers stationed locally.
“Doesn’t the attorney general have an office here in ºüÀêÊÓƵ in the Wainwright Building?†Autrey asked.
The lack of preparation and attention to legal principles became even more obvious in the later hearing in front of Ribaudo.
“It seems that something got lost in translation,†Rothert said of Divine’s arguments.
Divine is asking a Missouri judge to approve a rule that Divine says was designed on an “emerging consensus†in socialist countries in Europe to step away from the gender-affirming care in question here.
While it’s true that health officials in the United Kingdom and some Scandinavian countries have hit the pause button on some gender-affirming care for minors, the key is that health experts in those countries are making the decisions — and they come nowhere near to what Bailey is proposing out of thin air.
“What he does try to present withers away to nothing,†Rothert said of Bailey’s arguments for the rule. “We in this country defer to medical professionals. In this system, the Legislature makes law, not one unelected individual. We don’t allow attorneys general to legislate, and we don’t allow them to play doctor.â€
Rothert then gave Bailey, whom he called a despot in the previous hearing, a new moniker: “Dr. Frankenstein.â€
“The AG has taken misrepresented quotes out of context and sown them together,†Rothert said. “This rule is a monster.â€
Editor’s note: This article has been edited to correct the spelling of the judge’s last name.