The Volokh Conspiracy
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Alabama Defendants in Youth Gender Medicine Case May Disclose Discovery Documents from World Professional Association for Transgender Health
Monday's decision by Judge Liles Burke (M.D. Ala.) in Boe v. Marshall dealt with whether the defendants should be able to publicly disclose documents that they had obtained in discovery. (The underlying case involves a challenge to Alabama's restrictions on youth gender medicine.) First, the factual background:
The World Professional Association for Transgender Health ("WPATH") touts its guidelines and standards of care for treating transgender children as the product of rigorous science and broad consensus. Given this wide acceptance of what WPATH claims to be reliable evidence, one would think it would be willing and eager to demonstrate as much. It is not….
This case began in 2022 when the Plaintiffs filed their complaint and moved for a preliminary injunction to block enforcement of an Alabama law restricting the use of certain medications in children diagnosed with gender dysphoria. Over the course of three days, the Court heard testimony from multiple expert witnesses who touted WPATH as the leading authority responsible for developing the prevailing guidelines and standards of care for physicians treating children with gender dysphoria. In an affidavit, one of the Plaintiffs' medical experts stated that WPATH "has been recognized as the standard-setting organization for the treatment of gender dysphoria for more than forty years." [Further details omitted. -EV] … In other words, the Plaintiffs and many of the amici believe that WPATH is the preeminent leader in the field of transgender medicine for children.
Unsurprisingly, the Defendants sought discovery from WPATH regarding, among other things, the evidence it used to develop its guidelines and standards of care. But surprisingly, the organization allegedly responsible for creating the benchmark for gender dysphoria treatment was not so keen on turning over the evidence it used to develop that standard. WPATH resisted the Defendants' subpoena at every turn. Given its own characterization of its guidelines and standards, one would expect WPATH to welcome the opportunity to put the supporting evidence on display.
WPATH initially filed a motion to quash the subpoena arguing, among other things, that the information the Defendants sought was somehow not relevant to the case. Given that "WPATH's guidelines are part and parcel of Plaintiffs' proposed constitutional standard in this case" this Court found that argument preposterous and denied the motion. WPATH then moved to certify that order for an interlocutory appeal and to stay its obligation to produce any discovery until that appeal was resolved. When those motions were denied, WPATH unsuccessfully petitioned the United States Court of Appeals for the Eleventh Circuit for mandamus relief. In denying the petition for a writ of mandamus, the Eleventh Circuit found that the Defendants "demonstrated a compelling need for the information" WPATH sought to suppress.
Although this Court denied WPATH's motion to stay, WPATH nevertheless delayed production, prompting the Court to remind its counsel of that fact at a hearing three months after the motion to quash was denied. ("I also hear you say, hey, Judge, you know, the minute you tell us to start producing, we will. I really have already said to start producing.").
So, it comes as no surprise that the Court is again resolving a discovery dispute involving WPATH. Before the Court is the Defendants' motion to remove the "Confidential—Attorney's Eyes Only" designation from hundreds of video recordings produced by WPATH during discovery pursuant to a stipulated protective order. Under that protective order, these videos, which depict various symposia on transgender healthcare held in recent years, are required to be destroyed within 60 days of the case's termination. Because the parties dismissed the case on May 1, 2025, the deadline for destruction is June 30, 2025.
In their motion, the Defendants argue that the recordings should not be considered confidential under the protective order because they were made available to the public by WPATH and its affiliate, USPATH. The recordings are from presentations and panel discussions from WPATH and USPATH symposia in 2021, 2022, and 2023, and a 2023 medical training course. The Defendants emphasize that access to these events was not limited to WPATH members but was open to anyone who registered and paid a fee. Moreover, the videos were made available to attendees after the event.
The Defendants further argue that the recordings do not meet any of the criteria for confidentiality under the protective order. Accordingly, they request that the Court find the videos at issue do not qualify as confidential under the protective order and were improperly designated as such during discovery.
The court noted that the materials were discovery materials that weren't filed in court, so there was no public right of access to them. But there was still the question whether defendants, who had gotten the documents through discovery, should continue to be legally barred from disclosing them. And the court said no:
Federal Rule of Civil Procedure 26(c) allows a court to issue a protective order upon a finding of good cause…. WPATH has the burden of demonstrating Rule 26(c)'s applicability…. Rule 26(c) provides in pertinent part, that "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense…." …
WPATH argues that "[w]idespread dissemination of these videos to the public could subject WPATH, USPATH, their members, and unaffiliated individuals who happened to attend these conferences to harassment, particularly given the highly charged atmosphere surrounding issues related to gender-affirming care."
The Defendants point out that a party seeking the court's protection under Rule 26(c) must make a "particular and specific demonstration of fact" and cannot rely on "stereotyped or conclusory statements." "[G]eneralized, subjective assertions of fear … without a distinct concrete harm justifying good cause" are insufficient. Aside from the conclusory statement quoted above, WPATH gives no detail about why the release of these videos could cause such harassment.
WPATH also claims that, because it charges a registration fee for its symposia, making the videos publicly available would harm their economic interests. It also claims that public release of the videos could chill the exercise of protected First Amendment rights by making people less likely to present or contribute at a conference.
But beyond these vague suppositions, WPATH offers nothing to substantiate its position. Even WPATH's declarations fail to provide more than a few conclusory statements about any of these issues. The only support for these last two assertions is a single sentence in an affidavit from WPATH's Associate Executive Director stating that "[s]peakers and presenters would be less willing to contribute to symposia and training events if their presentations would be made public, and WPATH and USPATH would be less likely to incur the costs of organizing symposia and training events if the public could obtain access to presentations without paying the costs of attendance or paying to access recordings." Without more, the Court finds that WPATH has failed to meet its burden of demonstrating that the videos in question were properly designated as confidential under Rule 26(c).
The court also rejected WPATH's argument that "it has a legal duty to protect the confidentiality and use of the videos," because the "[p]resenters granted WPATH and USPATH a limited license to use the recordings for educational purposes only, [and] [a]ttendance at the events was limited to paying participants who agreed not to record or reproduce the material without the explicit consent of the presenters." The relevant agreements between WPATH and the conferences, the court concluded, didn't impose any duty of confidentiality.
