Metro Weekly

Judge Declares Arkansas Trans Health Care Ban Unconstitutional

Law prohibiting minors from accessing gender-affirming treatments for gender dysphoria struck down in its entirety.

Dylan Brandt, one of the plaintiffs in the case challenging Arkansas’s ban on gender-affirming treatments for trans youth. – Photo: ACLU/Rana Young.

On Tuesday, a federal judge struck down an Arkansas law prohibiting doctors from prescribing gender-affirming medical treatments to minors struggling with gender dysphoria.

The law, which served as a legislative template for 19 other states that adopted similar restrictions, sought to bar transgender youth from accessing puberty blockers, hormones, or surgical treatments — the latter of which are rarely performed on minors — intended to assist them in transitioning and being affirmed as the gender with which they identify.

Enlisting the help of the American Civil Liberties Union, the parents of four transgender youth, on behalf of their children, and two physicians who specialize in treating gender dysphoria sued to block the law, arguing that it violated transgender people’s right to equal protection, parents’ rights to make appropriate medical decisions for their children and doctors’ free speech rights. They also asked for an injunction to block Arkansas officials from attempting to enforce the ban on transition-related care.

In an 80-page ruling, U.S. District Judge James Moody, Jr., of the Eastern District of Arkansas, an appointee of former President Barack Obama, declared the law banning gender-affirming treatments unconstitutional, both for discriminating against transgender people and infringing on the free speech rights of doctors wishing to prescribe treatments they believe are appropriate for their patients.

Moody also found that the state of Arkansas had failed to substantially prove a number of claims, including assertions that gender-affirming care is experimental and that transition-related treatments, such as hormone therapy, are carelessly prescribed to minors suffering from gender dysphoria, without taking proper precautions or safeguards or seeking to address patients’ underlying mental health issues.

“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,” Moody wrote in his opinion.

“Further, the various claims underlying the state’s arguments that the act protects children and safeguards medical ethics do not explain why only gender-affirming medical care — and all gender-affirming medical care — is singled out for prohibition,” he added.

“As written, [the law] clearly regulates speech and not conduct as argued by the State. It prevents doctors from informing their patients where gender transition treatment may be available. It effectively bans their ability to speak to patients about these treatments because the physician is not allowed to tell their patient where it is available,” Moody continued. “[The law] is a content and viewpoint-based regulation of speech because it restricts healthcare professionals from making referrals for ‘gender transition procedures’ only, not for other purposes. As a content and viewpoint-based regulation, it is ‘presumptively unconstitutional’ and is subject to strict scrutiny.”

“The State also contends it has a compelling interest in regulating the ethics of the medical profession. There was no evidence presented that an Arkansas physician or healthcare provider has been ethically compromised in their treatment of adolescents with gender dysphoria or their communication with patients regarding gender transitioning procedures,” he noted.

“As stated, the Arkansas Medical Board has proven to be an effective regulator of Arkansas healthcare professionals in controversial areas of medicine. For these reasons, the Court finds that the State has failed to prove that its interests in the safety of Arkansas adolescents from gender transitioning procedures or the medical community’s ethical decline are compelling, genuine, or even rational,” Moody concluded.

Moody also issued a permanent injunction blocking state officials, including Attorney General Tim Griffin, his successors, and the members of the Arkansas State Medical Board, from enforcing the law’s prohibitions on gender-affirming care.

Moody previously issued a temporary order in July 2021 blocking the law from taking effect until he had ruled on the merits and decided whether to issue a more permanent order. The 8th U.S. Circuit Court of Appeals upheld Moody’s order, preventing the law from taking effect.

The law was passed in 2021 by Republican lawmakers, who overrode a veto by Republican Gov. Asa Hutchinson, who left office in January. At the time, Hutchinson argued that he believed the proposed law was a “vast government overreach” that infringed on parents’ right to make medical decisions for their children based on the advice of health care experts, and did not provide sufficient exemptions for trans-identifying youth who had already begun receiving gender-affirming treatments.

Gov. Sarah Huckabee Sanders, Hutchinson’s successor, signed a law in March seeking to effectively reinstate the ban by making it easier for patients who experience later-in-life “regret” to sue doctors who provide gender-affirming care to minors. That law doesn’t take effect until later this summer, reports the Associated Press.

The state is expected to appeal Moody’s decision to the 8th Circuit Court of Appeals, which could set the stage for an eventual decision by the U.S. Supreme Court. It remains to be seen the effect that Tuesday’s ruling — and the precedent it sets — could have on other bans on gender-affirming care.

Meridian Baldacci, the director of strategy at Family Policy Alliance, a right-wing group that crafted legislation banning gender-affirming care that served as a template for Arkansas’s law, blasted Moody’s decision. 

“When a child is struggling to embrace his or her God-given body, that child should be met with loving help — not the irreversible harm of hormones and surgeries,” Baldacci said in a statement. “Today, a federal judge has determined that it is better for children to face sterilization and even mutilation than to allow them the basic protections of Arkansas law.

“But the transgender procedures pushed on children are nothing short of a medical scandal, and we have confidence that both history and the law will soon recognize that truth,” Baldacci added. “Already, the sweep of states that have taken similar steps to protect children — even overriding their governors to do so — indicates that Americans are more interested in protecting children than political ideology. They see this tragedy for what it is, and they know that it’s time to act.”

But LGBTQ advocates and allies cheered the decision as rightly decided, both in terms of complying with best-practice medical care for transgender youth — which most major medical and mental health organizations recognize as valid — and recognizing the law’s unconstitutional provisions.

“This decision sends a clear message. Fear-mongering and misinformation about this health care do not hold up to scrutiny; it hurts trans youth and must end,” Holly Dickson, the executive director of the American Civil Liberties Union of Arkansas, said in a statement. “Science, medicine, and law are clear: gender-affirming care is necessary to ensure these young Arkansans can thrive and be healthy.”

One of the transgender youths challenging the ban, Dylan Brandt, testified before Moody last year that he benefitted immensely from being able to access hormone therapy, telling the court: “”My outside finally matches the way I feel on my inside.” Brandt also expressed concern that he might have to leave the state if the ban were to take effect.

“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,” he said in a statement released by the ACLU at the time. “My mom and I wanted to fight this law not just to protect my health care, but also to ensure that transgender people like me can safely and fully live our truths.”

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