(Oil City News)—Casper Dr. Frederick William “Eric” Cubin III wants his old job back.
In April, Gov. Mark Gordon removed him from the Wyoming Board of Medicine for his February support of a bill to regulate gender-affirming surgeries for children.
On Aug. 29, Cubin sued Gordon through his attorneys in federal court in his personal and official capacities, alleging Gordon retaliated against him when he, as a private citizen, sent an email to the Wyoming House of Representatives supporting “Chloe’s Law” and criticized the Wyoming Medical Society’s opposition to it.
Monday marked the next step in his legal battle.
Cubin — through his attorneys, D. Stephen Melchior of Cheyenne and M.D. Buck Doughtery III of the Liberty Justice Center in Austin, Texas — filed a motion for a preliminary injunction ordering Gordon to restore him to the board pending the outcome of the trial.
“Governor Gordon violated Dr. Cubin’s First Amendment rights by forcing him to resign from the board as punishment for exercising his right to free speech,” Dougherty said in a press release. “We urge the court to uphold Dr. Cubin’s constitutional rights and restore him to his position.”
Since the lawsuit’s filing, more than 5,300 Wyoming residents petitioned Gordon to reinstate Cubin. The nonprofit organization Honor Wyoming delivered the petitions to the Governor’s office on Monday.
Gordon spokesperson Michael Pearlman said he could not comment on pending litigation.
The petition filed in U.S. District Court on Monday included the motion for the preliminary injunction, a memorandum supporting it with a declaration by Cubin outlining the backstory leading to the lawsuit.
“Since my removal I feel I have suffered reputational harm as news articles reporting on my removal have created the impression that I am biased against the transgender community,” he wrote.
“The articles, and the Governor’s own words call into question my professionalism and ability to be objective,” Cubin wrote. “As a physician, objectivity and professionalism are important.”
The memo supporting the motion outlined the legal standard to obtain a preliminary injunction:
- That the petitioner is likely to succeed on the merits
- That they are likely to suffer irreparable harm without preliminary relief
- That the balance of equities — the process a court applies to determine which party should prevail — tips in their favor
- That an injunction is in the public interest
Cubin, through his attorneys, argued he will succeed on the merits because Gordon unlawfully retaliated against him and deprived him of his free speech rights under the First Amendment. Specifically, he states he expressed only his personal opinions in the email, which was not part of any official Board of Medicine duties; his comments on Chloe’s Law addressed a matter of public concern; his comments did not interfere with the board’s work or its ability to function efficiently; the governor’s letter of removal explicitly stated he was removing Cubin because of the email; and he would still be on the board if not for those comments.
The memo added that Cubin’s comments to the Legislature expressed “his ideas, hopes, and concerns about Chloe’s Law,” which is part of the right to petition the government.
Gordon’s April 22 letter, motivated by Cubin’s email, “reasonably chilled him from continuing to engage in such speech.”
Regarding the part about “irreparable harm,” Cubin states in the memo that he lost his First Amendment rights, and speech about public policy is at the core of the First Amendment’s protection.
The memo concludes, “For these reasons, Dr. Cubin respectfully requests that the Court issue a preliminary injunction ordering Governor Gordon to restore Dr. Cubin to his position on the Board pending the outcome of trial.”
These are the players and actions in the controversy:
The Wyoming Board of Medicine is responsible for issuing and renewing licenses for physicians and other medical practitioners in Wyoming. It also oversees medical regulation, compliance and discipline.
It typically consists of eight members, including five physicians. They are appointed by the governor and “serve at the pleasure of the governor” for four-year terms with the advice and consent of the State Senate. Board members are compensated for their service at the same manner and amount as legislators.
Chloe’s Law, introduced as Senate File 99, prohibits certain gender-affirming procedures for minors, and was named after 18-year-old Chloe Cole, who began taking cross-sex hormones at 13 and underwent a double mastectomy at 15. Chloe has since de-transitioned and deeply regrets the surgeries.
“No child in Wyoming deserves to be put through these cruelties or hardships,” the complaint stated, citing an article in the Cowboy State Daily.
The Wyoming Medical Society, a voluntary organization, refers to itself as a professional organization that serves the interests of medical practitioners.
Cubin belongs to the Medical Society, but disagreed with its opposition to Chloe’s Law.
He expressed his concerns about the Medical Society’s opposition, emailed the executive director and asked for the society to present both sides of the issue. Cubin didn’t receive responses to this and other requests for a more neutral stance, and on Feb. 28 sent the email in question to the entire House of Representatives.
Cubin also did not claim to be speaking for the Wyoming Board of Medicine.
The Legislature passed the bill and Gordon signed it on March 23.
On April 22, Gordon wrote to Cubin informing him of his removal from the board.
Cubin’s comments, Gordon wrote, “could give doctors, who are licensed by the Board of Medicine, a reason to be concerned that you might use your position to advocate for a particular position when considering matters that should be considered absent an agenda or prejudice.”
In his complaint, Cubin wrote that previous board members have testified before the Legislature on controversial medical matters and never received a similar retribution from the governor.
Cubin filed three claims for relief in the lawsuit:
First Amendment Retaliation (against Gordon in his personal and official capacities): Gordon retaliated against Cubin because he exercised his First Amendment rights to free speech in communicating with the Wyoming House of Representatives. Cubin cited federal case law that “the First Amendment protects a public employee’s right in certain circumstances to speak as a citizen addressing matters of public concern.” In the email to the legislators, he says he clearly spoke as a private citizen and not in his professional role on the board.
First Amendment Retaliation (against Gordon in his personal and official capacities): Gordon retaliated because Cubin “exercised his First Amendment right to petition the House of Representatives in expressing his ideas, hopes, and concerns about Chloe’s Law.” The email was constitutionally protected activity, but his removal from the board caused his to suffer injury including the loss of personal, professional and financial benefits association with a board position, Cubin says, adding that Gordon’s action could also deter others from exercising their rights to petition the House of Representatives.
Against Gordon in his official capacity) – Wyoming State Constitution, Article I, Sections 20 & 21 – Gordon violated Dr. Cubin’s free speech rights and right to petition under the Wyoming State constitution: The Wyoming Constitution “is broader than that found in the First Amendment to the United States Constitution in that it also guarantees the right to publish which include the right not only to speak and write but also to make the same known,” Cubin states.
Cubin is seeking the following relief from the federal court:
- In all counts, a preliminary injunction to restore him to his position on the Wyoming Board of Medicine
- In all counts, a declaratory judgment declaring Gordon violated Cubin’s free speech and rights to petition
- In the first two counts, monetary damages against Gordon in his personal capacity to be determined at trial