Amicus Brief: Hudacko v. Regents of the University of California

When Ted Hudacko divorced, the family court expressly required that any gender-affirming surgery on his minor son would need approval from both parents. Unbeknownst to Hudacko, a University of California hospital later performed such surgery—a puberty blocker-dispensing implant procedure that likely sterilized his son. Hudacko sued the Regents of the University of California, the doctors who performed the surgery, the hospital’s attorney, the court-appointed attorney for his son, and his ex-wife and her attorney—all of whom knew of the family court’s rules and worked together to keep the surgery hidden.

The Ninth Circuit affirmed dismissal of all of Hudacko’s claims, determining that qualified immunity applied to the state actors. The panel determined that “Hudacko’s alleged right was not clearly established” because Hudacko “cites no clearly established law under similar facts.” And when Hudacko pointed to the clear custody order, the panel decided “it was not clear the implant procedure fell within [the] ‘surgery’ exception in the custody order.”

Now on petition for Supreme Court review, the Manhattan Institute has joined the Independent Women’s Legal Center on a brief in support. We argue that, in determining whether a constitutional right is clearly established for qualified immunity, courts must consider whether “any reasonable official in the defendant’s shoes would have understood that he was violating it.” As medical professionals rather than the average person on the street, at least some of the state defendants knew this was surgery. We point to a recent HHS report that highlights how the medical profession pushed gender affirming care for minors at a time when scientific consensus was far from clear. The report shows how a “reasonable official” knew or should have known that implanting a puberty blocker in a minor is clearly the type of surgical procedure that required the father’s consent. The Court should take the case and hold that qualified immunity is not warranted for those who worked to undermine a father’s parental rights.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.