DON HAYDEN DISCUSSES CHALLENGING CASE – BLOOMBERG LAW

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Excerpt from the article:

Advocates Confident

The ACLU’s Nowlin-Sohl is confident the early victories will stand, but she and others representing the families and doctors recognize that the cases are in their early stages and still have a long way to go.

The Florida decision, for example, likely will be appealed to the US Court of Appeals for the Eleventh Circuit, Don Hayden said. It’s considered to be a conservative court, and six of its 12 active justices are Trump appointees.

Hayden, of Mark Migdal & Hayden in Miami, has filed friend-of-the court briefs supporting LGBTQ groups in several high-profile cases, including Obergefell v. Hodges, in which the US Supreme Court recognized a right to same-sex marriage.

Judge Robert L. Hinkle’s decision in the Florida case is so well-reasoned, it should be seen as persuasive by other courts, Hayden said. The equal protection discussion—based on the idea that the bans treat people differently based on their sex or transgender status—is very strong, he said.

Hinkle’s take that Florida’s ban was based on the assumption that gender identity isn’t real was “spot on,” Hayden also said.

Fight Continues

The fight is far from over.

A trial just ended in an Arkansas federal court, and the Alabama case is in the discovery stage. Other cases are pending in state and federal courts in Indiana, Idaho, Tennessee, Kentucky, Montana, Nebraska, and Oklahoma. Texas and Missouri likely will be targeted next.

In the long run, the US Supreme Court may decide whether the bans are unconstitutional or violate the Affordable Care Act’s anti-discrimination provision, but “even the Roberts court would think twice” before granting review of a case presenting these issues at this time, Hayden said.