Subpoenas of outside groups roundly criticized in Alabama transgender case

(CN) — In October, attorneys representing supporters of Alabama’s contested Vulnerable Child Compassion and Protection Act celebrated a small victory when a federal judge quashed two Justice Department subpoenas seeking communications and documents from two conservative nonprofit organizations that helped draft the law that opponents call anti-transgender.

Enacted in March 2022, the law prohibits the prescription or sale of puberty-blocking medications or hormone therapy to anyone under the age of 18. It quickly drew several legal challenges from parents of transgender kids. In May, U.S. District Judge Liles C. Burke, a Donald Trump appointee, issued a partial injunction to prevent portions of the law from taking effect.  

The subsequent subpoenas, which were characterized in conservative circles as a “weaponization” of the DOJ in the highly polarized debate over childhood gender dysphoria, targeted some five years’ worth of documents from the Eagle Forum of Alabama and Southeast Law Institute, including internal and external communications, planning documents, meeting agendas, minutes and records, work product and works cited. 

At the time, attorneys representing the office of Alabama Attorney General Steve Marshall called the subpoenas “unprecedented … [with] no legitimate purpose other than to intimidate ordinary citizens whose policy views the current Administration’s Department of Justice disdains.”

“Enforcing the subpoenas,” Marshall's office argued in a court filing, “would set a dangerous precedent against citizens of all political stripes.”

In a declaration to the court, Eagle Forum of Alabama's general counsel Margaret Clarke wrote she “consider[s] this subpoena to be political harassment.” 

Clarke noted she served in a volunteer capacity for the organization and had too many other personal and professional responsibilities to respond to the subpoena in a timely manner. Further, Clarke expressed concern the subpoenas would “have a chilling effect on historically protected constitutional rights and legislative advocacy in Alabama and possibly around the country.”

She added that several people who testified on the state’s behalf while the law was drafted “​​were harassed and put in fear of bodily harm by the opposition … Since then, I have had genuine concerns for the physical well-being of anyone who publicly supports the [law]. My concern will increase if this subpoena is enforced.”

Granting the motion to quash, Burke noted the DOJ’s subpoenas sought material outside the scope of discovery, were irrelevant to the fundamental argument of the case and were overly burdensome for largely volunteer organizations with pro-bono legal representation. But the judge did not address Clarke’s concerns over harassment or bodily harm. 

Meanwhile, as Marshall was arguing for the protection of conservative nonparties, he also targeted two nonparty opponents of the law with subpoenas of his own. First, he sought documents from the American Academy of Pediatrics, then the World Professional Association for Transgender Health. In December, weeks after Burke’s order, Marshall filed a third subpoena against the Endocrine Society. All three have submitted friend-of-the-court briefs in support of the plaintiffs challenging the law, but otherwise had no involvement. 

In their own motion to quash filed Dec. 27, the American Academy of Pediatrics, World Professional Association for Transgender Health and Endocrine Society claim the AG’s office refused to narrow the scope of the subpoenas or withdraw them after Burke’s order. Now, they are making substantially the same argument the state did just a couple months ago.

“The state is seeking work product information, internal communications and associated activities to question the credibility of the briefs,” the motion states, arguing the state’s position “reflects an inexplicable about-face from what it advocated to this court just weeks ago.” 

Attorney Barry A. Ragsdale declined an offer to elaborate, but wrote in his motion the documents requested are irrelevant to the sole issue in dispute, and complying with the subpoenas would impose undue burdens. Additionally, if granted, the subpoenas would have “far-reaching and chilling implications for friends of the court everywhere.”

Ragsdale also warned the court that the disclosure of such politically sensitive information “could subject [nonparties] and their employees and members … to harassment, threats and even the risk of violence.” He included excerpts from at least one email which communicated a death threat to providers of gender-affirming care. 

Becky Gerritson, executive director of Eagle Forum of Alabama, said in the nearly 50 years her organization has advocated for conservative, Christian family values, it has only recently been targeted by the federal government. During the Obama administration, Gerritson said the Eagle Forum was one of hundreds of conservative nonprofits scrutinized by the IRS for their alleged support of the Tea Party movement. 

“There is an uptick with the government being weaponized,” Gerritson said. “Most organizations, especially nonprofits like ours, don't have the resources to go against the world’s largest legal firm, i.e. the U.S. government. It’s intimidating and it’s very hard and I think a lot of people would want to give up.” 

After Burke’s order quashing the subpoenas, the Eagle Forum filed a motion for sanctions against the DOJ. A hearing is scheduled for February. Meanwhile, the Atlanta-based 11th Circuit is considering the constitutional questions around the Vulnerable Child Compassion and Protection Act, including whether it violates the equal protection clause.

Gerritson wouldn’t disclose specific threats or harassment she said she's received as a result of the Eagle Forum’s advocacy for the law, but said the rhetoric around the statute is about as divisive as she has ever heard. One state publication put the law at the top of its list of “Top 5 Dumbest Bills of 2022,” for being “harmful, unnecessary [and] meanspirited.”

“Lots of people want to put us on their hate lists, but it’s probably a badge of honor,” Gerritson said. 

The Alabama Attorney General’s Office declined a request to comment on the subpoenas.

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