Arkansas State Capitol – Photo: HAL333, via wikimedia
A federal appeals court has upheld an order blocking an Arkansas law that sought to bar transgender youth from accessing gender-affirming health care treatments, and penalize doctors who prescribe such interventions.
On Thursday, the 8th U..S. Circuit Court of Appeals upheld a lower court’s injunction blocking the state from enforcing the law after four transgender youths, their parents, and two doctors filed suit, arguing that the ban violates transgender youths’ right to free speech (including self-identification) and equal protection under the law, infringes on their parents’ right to decide what sort of care they receive, and violates physicians’ free speech rights by preventing them from recommending the treatments that are best for their patients.
In its ruling, the appeals court found that, “[b]ecause the minor’s sex at birth determines whether or not the minor can receive certain types of medical care under the law,” the ban discriminates on the basis of sex. As such, the law will continue to be blocked while case is decided on its merits.
The lower court judge who issued the injunction last year, U.S. District Judge James Moody, Jr., of the Eastern District of Arkansas, is slated to hear oral arguments on October 17 on whether the law should be permanently blocked, reports Politico.
The law, passed on largely party-line votes in the Republican-led state House and Senate, was initially vetoed by Gov. Asa Hutchinson last year over concerns that the law — which also allows health insurers to deny coverage for any transition-related care, even for adults — was overly broad, infringed on parental rights, and failed to exempt youth who were already receiving care, further disrupting their treatments. But Republicans overrode Hutchinson’s veto, prompting the plaintiffs to sue. Seven days before the law was slated to go into effect, Moody issued his injunction preventing the law from being enacted.
Multiple medical groups, including the American Medical Association, oppose the ban and have argued that transition-related treatments can be safely administered. LGBTQ advocates and civil rights advocates noted that, in addition to potentially being unconstitutional, the law would harm transgender youth, potentially exacerbating their gender dysphoria and leading to depression, anxiety, and suicidal ideation.
But Arkansas Attorney General Leslie Rutledge, arguing on behalf of the state and the state medical board, argued that the state has the authority to regulate medical practices, especially those that could be potentially harmful. Rutledge also argued that the restriction on transgender health care is needed to protect transgender youth from making rushed or uninformed decisions about their health that they may later regret if they choose to pursue “irreversible” hormone therapy or surgery.
LGBTQ advocates celebrated the 8th Circuit’s decision, hailing it as a victory not only for the plaintiffs, but all transgender youth.
“Today, the 8th Circuit Court of Appeals affirmed that no child should be denied medical care they need,” Holly Dickson, the executive director of the ACLU of Arkansas, said in a statement. “We are relieved for trans youth. Research shows that denying gender-affirming care to transgender youth contributes to depression, isolation, eating disorders, self-harm, and suicide. Transgender people deserve the right to live healthy lives without fear and discrimination. It’s time for the Arkansas Legislature to protect trans kids, not target them.”
“This is a critical victory for transgender adolescents in Arkansas, their families, and their medical providers,” Chase Strangio, the deputy director for Transgender Justice at the ACLU’s LGBTQ & HIV Project, said in a statement. “The 8th Circuit was abundantly clear that the state’s ban on care does not advance any important governmental interest and the state’s defense of the law is lacking in legal or evidentiary support. The state has no business categorically singling out this care for prohibition. We know adolescents thrive with this care, support, and love, and we’re determined to keep fighting until this baseless law is permanently struck down.”
Similar laws seeking to restrict access to gender-affirming care by youth have passed in Tennessee and Alabama, although the Movement Advancement Project, a pro-LGBTQ think tank, has noted that the specific language in Tennessee’s law — which bans hormone therapy for “prepubertal minors” — is based on a flawed understanding of transgender health care, and may allow minors who have already started puberty (as standards of care generally recommend) to begin receiving hormone therapy. The Alabama law has since been blocked from being enforced by a federal judge.
The state of Arizona passed a similar law that only restricts surgical interventions for transgender youth, but does not ban hormones or puberty blockers. Meanwhile, the state of Texas has encouraged state agencies to investigate families with transgender youth for “child abuse” if their children access gender-affirming care. While courts have allowed investigations to resume in general, two separate injunctions have been issued blocking state agencies from going after specific families who claimed they were targeted by the Texas Department of Family and Protective Services.
On Sept. 10, the U.S. Supreme Court denied South Carolina's emergency request to enforce its bathroom ban, allowing a transgender boy at a public high school to keep using the boys' restroom while his legal challenge to the law moves forward.
South Carolina pointed to several recent actions by the Trump administration to justify its request, including an executive order threatening to pull federal funding from schools that don't maintain sex-segregated facilities, enforcement actions by the U.S. Department of Education, and the Supreme Court's June ruling upholding Tennessee's ban on gender-affirming care for minors.
Two pharmacists are suing Walgreens and the Minnesota Board of Pharmacy, alleging they were punished for refusing to dispense gender-affirming medications. They are seeking a religious exemption that would allow them to decline filling such prescriptions on moral grounds.
Minnesota law classifies it as unprofessional conduct for a pharmacist to refuse to dispense a valid prescription. Exceptions exist, but only for non-religious reasons, such as doubts about a drug's effectiveness.
State law also permits pharmacists to refuse prescriptions for abortion-inducing drugs. The plaintiffs argue the state should likewise clarify whether pharmacists can decline to dispense gender-affirming medications if doing so conflicts with their belief that gender is binary and fixed at birth, reports Minnesota Lawyer.
Justice Department had demanded Boston Children's Hospital hand over patients' and employees' personal information under the guise of combating medical "fraud."
A federal judge has quashed a subpoena from the U.S. Department of Justice demanding that Boston Children’s Hospital turn over private medical information on youth receiving gender-affirming care, blasting the request as a “fishing expedition” aimed at prosecuting doctors under the guise of investigating health care fraud.
In his ruling, Judge Myong Joun, a Biden appointee, said the Justice Department sought an “astonishingly broad array of documents and information that are virtually unlimited in scope,” including patients’ Social Security numbers, home addresses, and personal details, as well as the complete personnel files of all 2,000 Boston Children’s Hospital employees, regardless of whether they had any involvement in providing gender-affirming care to minors.
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