Protestors demonstrate against an Arkansas bill introduced earlier this year that would have restricted drag performances. Activists said this and other legislation discriminates against transgender Arkansans, including restrictions on transgender minors’ health care. (John Sykes/Arkansas Advocate)
A federal judge struck down Arkansas’ ban on gender-affirming medical care for transgender youth Tuesday, nearly two years after blocking it from going into effect.
Act 626 of 2021, known as the Save Adolescents From Experimentation (SAFE) Act, prohibited physicians from providing “gender transition” treatments like hormones, puberty blockers and surgeries to those under age 18.
The SAFE Act became law in May 2021 when the Arkansas Legislature overrode then-Gov. Asa Hutchinson’s veto.
Four transgender Arkansas minors, their parents and two physicians who have treated those minors filed suit just days later, represented by attorneys from the American Civil Liberties Union.
U.S. District Judge James Moody temporarily enjoined enforcement of the law in July 2021 and oversaw the lawsuit’s eight-day trial last year. The trial was the first in the U.S. over a ban on gender-affirming health care for transgender youth. There was no jury, and Moody was solely responsible for deciding whether the SAFE Act would go into effect.
Moody issued the permanent injunction that the plaintiffs requested. His 80-page ruling stated repeatedly that the Arkansas attorney general’s office, which defended the law, “failed to provide sufficient evidence that the banned treatments are ineffective or experimental.”
“The State offered no evidence to refute the decades of clinical experience demonstrating the efficacy of gender-affirming medical care,” Moody wrote. “Additionally, the State’s experts offered no evidence-based treatment alternatives.”
Holly Dickson, executive director of the ACLU of Arkansas, said in a news release that the organization is “relieved and grateful” that Moody ruled to protect “life-saving care that should be available to all trans youth.”
“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,” Dickson said. “Science, medicine, and law are clear: gender-affirming care is necessary to ensure these young Arkansans can thrive and be healthy.”
Dylan Brandt, a transgender 17-year-old from Greenwood, was the primary named plaintiff in the lawsuit and the sole minor plaintiff to testify at the trial. He said on the witness stand in October that receiving testosterone has “changed [his] life for the better” and made him comfortable looking in a mirror.
His mother, Joanna Brandt, and the parents of the other three minor plaintiffs all testified that their children’s mental health vastly improved as a result of transitioning. The two physicians, Dr. Michele Hutchison and Dr. Kathryn Stambough, said their young patients have not regretted transitioning.
Dylan expressed gratitude for the ruling in the ACLU’s press release.
“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,” he said. “Transgender kids across the country are having their own futures threatened by laws like this one, and it’s up to all of us to speak out, fight back, and give them hope.”
The defense moved to dismiss the case during the trial in October 2022; Moody denied the motion.
Witnesses for the state claimed that minors cannot know for certain that they will still consider themselves transgender as adults and that there is not enough evidence gender-affirming hormone treatments improve transgender people’s quality of life.
Moody was unconvinced.
“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 wrote.
Former Attorney General Leslie Rutledge was the primary named defendant when the lawsuit was filed. Current Attorney General Tim Griffin took over the case after taking office in January.
Griffin plans to appeal Moody’s verdict.
“I am disappointed in the decision that prevents our state from protecting our children against dangerous medical experimentation under the moniker of ‘gender transition,’” Griffin said in a statement. “…I will continue fighting as long as it takes to stop providers from sterilizing children.”
Gov. Sarah Huckabee Sanders expressed support for an appeal via Twitter and called gender-affirming care “a political agenda at the expense of our kids.”
“Only in the far-Left’s woke vision of America is it not appropriate to protect children,” Sanders tweeted.
The 8th U.S. Circuit Court of Appeals will have jurisdiction over further legal proceedings. A three-judge panel from the court upheld Moody’s preliminary injunction on the SAFE Act in August, and the full court refused to rehear the ruling in November.
The court’s findings
During the trial, Moody questioned the credibility of some of the state’s expert witnesses, who expressed doubts about the safety and effectiveness of gender-affirming care and claimed gender dysphoria is a result of social pressure or child maltreatment.
The state’s only expert witness with experience treating transgender patients was Dr. Stephen Levine, a psychiatrist who said psychotherapy should be the primary treatment for gender dysphoria and claimed doctors are too quick to prescribe hormones to minors.
Levine said he had prescribed hormone therapy to some patients but “conceded he has no knowledge of how most gender clinics provide care,” Moody wrote.
Moody called Levine “a very credible witness who struggles with the conflict between his scientific understanding for the need for transgender care and his faith.”
The state’s other three expert witnesses “were unqualified to offer relevant expert testimony” and “offered unreliable testimony… grounded in ideology rather than science,” Moody wrote.
Sociologist Dr. Mark Regnerus, plastic surgeon Dr. Patrick Lappert and pediatric endocrinologist Dr. Paul Hruz “were testifying more from a religious doctrinal standpoint,” as shown by their attendance at a 2017 Alliance Defending Freedom conference that included a discussion about gender identity. ADF is a conservative, faith-based advocacy group that has opposed LGBTQ rights efforts.
Two adults who “detransitioned,” or lived as transgender but now identify with their assigned gender identities, testified for the state in November. Neither has ever lived or sought medical care in Arkansas, and both transitioned as adults. They both said their Christian spiritual awakenings led them to denounce and regret their gender transitions, and they “continued to struggle with living consistently with their birth-assigned sex after deciding to detransition,” Moody noted in his ruling.
“The Court finds these anecdotal experiences credible but also irrelevant to the issues to be decided,” Moody wrote. “These witnesses’ experiences are irrelevant to this case.”
The plaintiffs’ expert witnesses were medical professionals with years of experience treating transgender patients, including minors, and Moody said they “provided credible and reliable testimony relevant to core issues in this case.”
The two physician plaintiffs, who have treated transgender youth at the Gender Spectrum Clinic at Arkansas Children’s Hospital, disproved the defense’s claims that doctors prescribe gender-affirming medical treatments too soon and do not fully inform minors and their parents about those treatments, Moody wrote.
“The ACH Gender Clinic has very rarely had patients who only recently discovered their gender incongruence,” Moody wrote. “In those cases, the patient would not be considered for hormone therapy for some time because there would be a need to see if the patient’s gender identity remained consistent and persistent over time.”
The parents of the minor plaintiffs all said their children’s mental health would deteriorate if they no longer had access to gender-affirming care, and moving or traveling to seek this care would create major financial and emotional burdens for the four families.
Moody ruled that “those injuries are directly traceable” to the SAFE Act and a permanent injunction was necessary.
Overall, the testimony at the trial led Moody to conclude that the SAFE Act fundamentally discriminated against transgender people and violated the First and Fourteenth Amendments, according to the ruling.
The law would have prevented physicians from referring patients to other health care professionals for gender-affirming care, making it “a content and viewpoint-based regulation” that violates the First Amendment right to freedom of speech, Moody wrote.
The law also “prohibits medical care on the basis of sex,” in violation of the equal protection clause of the Fourteenth Amendment, Moody wrote.
Without evidence to support the state’s claims, the law also violated the right to due process guaranteed by the Fourteenth Amendment to the parents of transgender children, the ruling states.
Other transgender legislation
The ruling against the SAFE Act should send “a message to other states about the vulnerability of these laws and the many harms that come from passing them,” Chase Strangio, an ACLU attorney who represented the plaintiffs challenging the law, said in the ACLU’s news release.
“In state after state, transgender people are being forced to fight for our most basic rights, including access to the health care many of us need to live,” Strangio said. “This victory shows that these laws, when tested by evidence, are indefensible under any standard of constitutional review.”
While the SAFE Act was being challenged, several other states passed laws banning or restricting gender-affirming care for transgender minors. Some of these laws have been blocked in court, most recently in Florida earlier this month.
Republican-led states, including Arkansas, have seen a wide range of legislation in recent years targeting the rights and behaviors of transgender people.
Sanders, who became Arkansas’ first female governor in January, signed a law earlier this year that allows private enforcement of the SAFE Act. Act 274 of 2023, or the Protecting Minors from Medical Malpractice Act, will go into effect Aug. 1 and opens the door for malpractice lawsuits against doctors who provide transgender minors with any of the same treatments the SAFE Act sought to ban.
The law would allow patients to sue doctors who provide this care for up to 15 years after turning 18. It was sponsored by the same Republican legislators who sponsored the SAFE Act, Rep. Mary Bentley of Perryville and Sen. Gary Stubblefield of Branch.
Other laws that will go into effect Aug. 1 require a person’s gender assigned at birth to determine where they use the restroom at school or in public, and another law restricts teachers’ use of pronouns and names that do not match students’ birth certificates.
Additionally, a 2021 law prevents transgender girls in Arkansas from participating in girls’ sports.
This article first appeared in the Arkansas Advocate, a sister site of the Nebraska Examiner in the States Newsroom network.
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