Court Tosses Arkansas Ban On Medical Care For Trans Kids
How is this law unconstitutional? All the ways!
Yesterday, a federal judge in Arkansas struck down the state’s ban on gender-affirming care for transgender kids, finding that it violated the Equal Protection Clause, the Due Process rights of parents, and the First Amendment.
“The State has failed to prove that gender-affirming care for minors with gender dysphoria is ineffective or riskier than other medical care provided to minors,” Judge James M. Moody, Jr. wrote, adding 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.”
Arkansas was the first state to pass a blanket ban on medical treatments to support trans kids. Passed over then-Governor Asa Hutchinson’s veto, the Save Adolescents from Experimentation (SAFE) Act was premised on several false claims, such as: “studies consistently demonstrate that the majority [of transgender children] come to identify with their biological sex in adolescence or adulthood, thereby rendering most physiological interventions unnecessary” and “evidence indicates referrals for children to have [genital reassignment] surgeries are becoming more frequent.”
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The plaintiffs, minor children in Arkansas in need of gender affirming care and their parents, immediately sued to block the law. Judge Moody temporarily enjoined it in August of 2021, with the Eighth Circuit affirming the TRO in August of 2022.
Judge Moody noted that “Adolescents with gender dysphoria are unlikely to desist whether or not they receive gender-affirming medical care. And youth do not receive medical treatment unless their gender incongruence has persisted into adolescence.” And in fact the doctors who had actual experience providing care for adolescent use testified for the defense that they had never referred any of their thousands of minor patients for genital reassignment surgery.
In contrast, the state’s witnesses had no experience treating transgender children and were instead recruited by a religious group to offer testimony to support the group’s anti-trans advocacy efforts:
Like Professor Mark Regnerus and Dr. Paul Hruz, Dr. Lappert was recruited by the Alliance Defending Freedom (“ADF”) at a seminar held in Arizona. The meeting was held to gather witnesses trained in various fields that would be willing to testify in favor of laws passed that limit transgender care. The ADF is an organization committed to protecting God’s design for marriage and family. The ADF is not a scientific organization, but a Christian-based legal advocacy group. 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. Lappert were testifying more from a religious doctrinal standpoint rather than that required of experts by Daubert.
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And Judge Moody noted that Judge Robert Hinkle in Florida and Judge Loretta Biggs in North Carolina found these same witnesses lacked scientific expertise when they testified against bans on gender affirming care in defense of those states’ bans. (The court devotes a 397-word footnote to Prof. Regnerus and his dubious history of offering debunked testimony on conservative social issues.)
While Judge Hinkle’s order partially blocking the Florida law could be characterized as a righteous smackdown, Judge Moody’s ruling is more measured, meticulously laying out the medical consensus in 62 pages of “Findings of Fact” before reaching the legal analysis.
Where Judge Hinkle was plainly indignant that the state claimed to be bringing its standard for gender-affirming care for minors in line with the “International Consensus” — “The assertion is false. And no matter how many times the defendants say it, it will still be false.” — Judge Moody simply notes that, “Though the State applauds the efforts of European countries to restrict gender-affirming care for minors with gender dysphoria, the State’s expert testified that no other country in the world has taken Arkansas’s broad stance.”
But like Judge Hinkle, Judge Moody noted that the ban is clearly a sex-based regulation which violates the Equal Protection rights of children. Observing that cisgender girls can receive breast implants but not transgender girls, he writes, “The biological sex of the minor patient is the basis on which the law distinguishes between those who may receive certain types of medical care and those who may not. The Act is therefore subject to heightened scrutiny.”
The law similarly violates the Due Process rights of parents, who “have a fundamental right to seek medical care for their children and, in conjunction with their adolescent child’s consent and their doctor’s recommendation, make a judgment that medical care is necessary.”
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Furhermore, the restriction on doctors referring their transgender patients for care violates the First Amendment:
Act 626 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.
And while the order is significantly less strident than Judge Hinkle’s, is does tackle the Act’s promise to keep kids “safe.”
“The fact that transgender adults face elevated rates of physical and mental health issues due to stigma, discrimination, and having lived with gender dysphoria is not a reason to deny treatment to adolescents with gender dysphoria; if anything, it supports the need for access to treatment,” Judge Moody writes.
Later he notes that forcing trans kids to go through puberty will lock them into bodies that do not match their gender identity, and has been shown to correlate with high levels of depression and even suicide.
“Not all adolescents with gender dysphoria will live to age 18 if they are unable to get gender-affirming medical treatment,” Judge Moody concludes.
Naturally, the state has vowed to appeal again to the Eighth Circuit. You know … to keep the kids safe.
Brandt v. Rutledge [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.
