June 21, 2023

First in the nation gender-affirming care ban struck down in Arkansas

On Tuesday, June 20, 2023, a federal judge blocked Arkansas' ban on gender-affirming care for minors. In this photo, opponents of a religious freedom bill gather at the Arkansas state Capitol in Little Rock, Ark., Thursday, April 2, 2015.  - Danny Johnston/AP

On Tuesday, June 20, 2023, a federal judge blocked Arkansas' ban on gender-affirming care for minors. In this photo, opponents of a religious freedom bill gather at the Arkansas state Capitol in Little Rock, Ark., Thursday, April 2, 2015.

Danny Johnston/AP

By Daniel Breen

A federal judge has permanently blocked the country's first law banning gender-affirming care for minors, signaling a victory for LGBTQ advocates.

The ruling by U.S. District Judge James Moody Jr. on Tuesday says the state of Arkansas violated several sections of the U.S. Constitution when it banned all gender-affirming treatments for people under 18. The 80-page ruling says depriving trans minors of treatments like hormone therapy would cause them irreparable harm, and that delaying care until adulthood would force teens to go through changes inconsistent with their gender identity.

The verdict comes after an eight-day trial in December, where several of the state's witnesses admitted they didn't have experience treating transgender teens, and offered no evidence to dispute decades of scientific research.

"Rather than protecting children or safeguarding medical ethics, the evidence showed that the prohibited medical care improves the mental health and well-being of patients and that, by prohibiting it, the State undermined the interests it claims to be advancing," the ruling reads. "The testimony of well-credentialed experts, doctors who provide gender-affirming medical care in Arkansas, and families that rely on that care directly refutes any claim by the State that the Act advances an interest in protecting children."

The American Civil Liberties Union brought the suit on behalf of families of transgender teens and two physicians. Judge Moody previously blocked the law days before it was set to take effect in 2021.

Arkansas became the first state in the nation to ban gender-affirming care for trans minors when lawmakers passed Act 626 in 2021. Alabama, Florida and Indiana have similar laws on the books, all of which are temporarily on hold.

"I'm so grateful the judge heard my experience of how this health care has changed my life for the better and saw the dangerous impact this law could have on my life and that of countless other transgender people," said Dylan Brandt, a transgender teenager and one of the plaintiffs in the case.

In a statement posted to Twitter Tuesday night, Arkansas Attorney General Tim Griffin wrote, "Judge Moody misses what is widely known: There is no scientific evidence that any child will benefit from these procedures, while the consequences are harmful and often permanent. We will appeal to the Eighth Circuit."

Constitutional claims

Moody's ruling says Act 626 violated three parts of the U.S. Constitution: the First Amendment, the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendments.

The ACLU had argued Arkansas' law limited physicians' free speech rights by prohibiting them from referring patients to other providers for gender-affirming care. Moody agreed, saying restricting speech related only to "gender transition procedures" was a First Amendment violation.

The ruling also finds the law violates Arkansans' due process rights by taking away parents' ability to make decisions regarding their child's healthcare. It adds the law discriminates against minors based on their sex since it would not prohibit minors from accessing gender-affirming care if it aligns with their sex assigned at birth.

Background

While Republicans enjoy a comfortable supermajority in both chambers of Arkansas' legislature, Act 626's passage was not without controversy.

After hearing hours of testimony from advocates and trans youth, lawmakers gave final approval to the bill in April of 2021. Then-Gov. Asa Hutchinson, a Republican, vetoed the bill, saying it would interfere with families' private healthcare decisions.

In Arkansas, a simple majority vote is required in both the House and Senate to override a governor's veto. Lawmakers in both chambers easily overrode Hutchinson's veto the following day, clearing the way for the law to take effect later that year.

"I do hope my veto will cause my Republican colleagues across the country to resist the temptation to put the state in the middle of every decision made by parents and health care professionals," Hutchinson said at the time.

In August of 2021, Judge Moody — the same judge who authored Tuesday's ruling — issued a temporary restraining order against Act 626. A federal appeals court later affirmed the lower court's ruling in August 2022.

In an eight-day trial in December, lawyers with the state attorney general's office argued it was the state's duty to protect children from "irreversible" medical procedures. Several witnesses for the state spoke against gender-affirming treatments, like puberty blockers and hormones, but admitted to never having prescribed them to transgender teens.

The court found three of the state's witnesses had been recruited at a meeting of the Christian advocacy organization Alliance Defending Freedom held specifically to gather witnesses trained in various fields that would be willing to testify in favor of laws passed that limit transgender care.

"While there is nothing nefarious about an organization recruiting witnesses to testify for their cause, it is clear from listening to the testimony that Professor Mark Regnerus, Dr. Paul Hruz, and Dr. [Patrick] Lappert were testifying more from a religious doctrinal standpoint rather than that required of experts," the ruling reads.

 

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