Arkansas ban on gender-affirming care for minors declared unconstitutional

Dylan Brandt speaks at a news conference outside the federal courthouse in Little Rock, Ark., July 21, 2021.
Dylan Brandt speaks at a news conference outside the federal courthouse in Little Rock, Ark., July 21, 2021.
AP Photo/Andrew DeMillo

The Arkansas Legislature on April 6 overrode Republican Governor Asa Hutchinson’s veto of Act 626, a measure that prohibits gender-affirming care for minors and forbids health care providers from referring minors to others (presumably out of state) to get such care. An immediate lawsuit by the ACLU prompted US District Judge James M. Moody, Jr., to issue a preliminary injunction that blocked the law from going into effect. On June 20, Judge Moody granted the plaintiffs’ motion for summary judgments on the merits.

“Act 626 is unconstitutional,” he wrote to begin a lengthy opinion. “The Court determines that Plaintiffs are entitled to judgment in their favor on all claims. The State is permanently enjoined from enforcing Act 626.”

This decision is subject to appeal, which the state will likely do. But the state had previously appealed the preliminary injunction to the Eighth Circuit Court of Appeals, which backed up Judge Moody.

Arkansas was the first state to pass a ban on gender-affirming care for minors, and this is the first federal district court decision to issue a permanent injunction against enforcing such a law. Preliminary (pretrial) injunctions have been issued in three other states blocking such laws from going into effect as litigation proceeds, and in one state — Oklahoma — the state has agreed not to enforce the law while the case is being litigated. The accumulated preliminary injunction decisions, while not binding rulings on the merits, strongly signal the way the wind is blowing on this issue. Republican legislators looking for a wedge issue seem oblivious to the fact that they are passing blatantly unconstitutional laws and buying lawsuits that they will likely lose.

In the case of Arkansas, the state’s defense of the law was further complicated by their choice of expert witnesses, none of whom impressed Judge Moody by their testimony during several days of hearings on the plaintiffs’ summary judgment motion.

The plaintiffs are four transgender minors and their parents, and a doctor who provides gender-affirming care to minors. There are three constitutional claims: violation of the equal protection rights of the transgender minors, the due process rights of their parents, and the free speech rights of the doctors.

Judge Moody agreed with the plaintiffs that the law discriminates based on gender identity and sex, so it is presumed unconstitutional under the Equal Protection Clause of the 14th Amendment, placing the burden on the state to show that it has a substantial interest that justifies totally banning the treatments involved — puberty blockers, cross-sex hormones, and gender-affirming surgery — for minors diagnosed with gender dysphoria.

The judge also agreed with the plaintiffs that the law violates the rights of the parent plaintiffs to make medical decisions and obtain care they deem necessary for their children. He identified this as a fundamental right under the Due Process Clause of the 14th Amendment, which means the “strict scrutiny” test applies, and the state must show a “compelling interest” and that the law is narrowly tailored to achieve that interest without otherwise violating due process rights.

Finally, he agreed with the plaintiffs that the ban on physician referrals was a content-based prohibition of speech, which is also subject to strict scrutiny.

As to each of these legal theories, Judge Moody found that the state failed to meet its burden of proof.

Most significantly, Judge Moody made detailed findings of fact, which are normally accorded great deference by appellate courts, on the many contested points in the ongoing legislative debates about gender-affirming care. Rejecting the state’s argument that it is acting to prevent minors from being subjected to “experimental treatments” that are not proven to be safe and effective, he wrote: “Transgender care is not experimental care.” Instead, he credited expert testimony that such care has been provided to thousands of people, including both adults and minors, and that the care has been shown to be safe and effective by numerous studies and the experience of practitioners, as well as parents who have noted the beneficial effects of such care on their adolescent children.

The judge observed that the standards of care published by the World Professional Associate for Transgender Health (WPATH) and the Endocrine Society anticipate and effectively deal with many of the non-factual claims made by proponents of this sort of legislation. They require a diagnosis of gender dysphoria, a condition listed in the Diagnostic and Statistical Manual of the American Psychiatric Association (DSM), which includes a finding that an individual’s gender dysphoria is persistent over a significant period of time, prior to any medical treatment beginning, that treatment is limited to “social transition” until the onset of puberty (usually around age 8 for those identified as female at birth and age 9 for those identified as male at birth), and that cross-sex hormones to begin reconfiguring the body to accord with the individual’s gender identity is usually not undertaken until age 14 or later, after several years on puberty blockers, which are not used in most cases because the patients don’t come to doctors until they are already well into puberty.

Testimony from experienced practitioners supported the conclusion that most minors don’t “come out” to their parents as transgender until they are well into adolescence, and then the process of diagnosis means that many don’t start on cross-sex hormones until age 16 or later.

Furthermore, the state could provide no factual evidence that the WPATH standards are not being followed in Arkansas. There was no evidence that minors were being “rushed” into gender-affirming care without careful evaluation, diagnosis, and monitoring of treatment, contrary to the claims of Republican legislators pushing the measure. And there was no evidence that those who began hormone treatment came to regret it and attempt to “de-transition.” The “de-transition” phenomenon occurs mainly with adults who transition later in life, and people who abandon treatment are usually doing so for economic reasons, not necessarily because their perception of their gender has changed.

Judge Moody found that if the Act went into effect it would cause “irreparable harm to the Plaintiff adolescents, Plaintiff parents and Plaintiff doctor.” The harm was physical, emotional, and financial. All of the parental plaintiffs testified that the enactment of Act 626 had led them to contemplate having to move out of state, or to travel out of state periodically to bring their child to a state where they could obtain the care on a continuing basis. In either case this would impose significant financial hardship on those families.

“For those adolescents who are already being treated with puberty blockers or hormone therapy and who would be forced to discontinue treatment,” Moody wrote, “experts on both sides agree that the harms are severe.” Indeed, Dr. Levine, the state’s only really qualified expert, “described the psychological impact of cutting off gender-affirming medical care for those currently receiving it as ‘shocking’ and ‘devastating.’ He testified he would expect doctors to ‘find a way’ to help those patients, even providing treatment in violation of the law.”

The state’s defense of the statute suffered greatly from their choice of expert witnesses. The only one with clinical experience providing gender-affirming care, Dr. Stephen B. Levine, had started a gender identity clinic in Ohio in 1974 and has been treating transgender patients continuously since then. He is not opposed to gender-affirming care in general, but is opposed to people, especially minors, being rushed into irrevocable treatments without careful diagnosis and other safeguards, but he could provide no evidence that the kind of treatment he opposed was taking place in Arkansas. In fact, wrote Judge Moody, “He does not know how care is provided by doctors in Arkansas,” and he “does not support banning gender-affirming medical care for adolescents with gender dysphoria.” Judge Moody found him to be “a very credible witness who struggles with the conflict between his scientific understanding for the need for transgender care and his faith.”

The state really blundered by presenting Dr. Mark Regnerus as an expert witness. Regnerus is a sociologist, not a medical doctor, who was thoroughly discredited as an expert on gay parenting when he appeared in cases defending bans on same-sex marriage. He testified that the support by medical professional associations for gender-affirming care is ideological, not scientific, but the court found that “Professor Regnerus’ testimony did not offer any support for his conclusion, and the Court finds there is no evidence to support this assertion.” The plaintiffs’ counsel did a great job of discrediting Regnerus, leading Judge Moody to include a lengthy footnote citing published court decisions in which Regnerus’ “expert” testimony had been rejected by courts in the marriage litigation a decade ago. The state’s attorneys must have been pretty desperate to find experts to have presented somebody with this track record.

The state also presented as an expert Dr. Patrick W. Lappert, a plastic surgeon with no experience regarding gender-affirming care. His testimony was also largely irrelevant because Judge Moody found that surgeons in Arkansas do not provide gender-affirming surgery for minors, so there was no reason for the state to ban it.

The plaintiffs’ experts, by contrast, were all experienced practitioners who were apparently well-versed in the scientific literature and had cumulatively provided health care to thousands of transgender patients. “Plaintiffs’ experts’ extensive experience, their testimony in court, and their demeanor and responsiveness to questions asked by both sides and the Court, show that all four of Plaintiffs’ expert witnesses have deep knowledge of the subject matter of their testimony and were fully qualified to provide the opinion testimony they offered. They have provided credible and reliable testimony relevant to core issue in this case,” wrote Judge Moody.

As has already come up in the preliminary injunction rulings in several other states, the states’ attempt to rely on how this issue is being treated in Europe fell flat before Judge Moody. While several European countries have taken steps to regulate more closely the circumstances under which minors get gender-affirming care, after careful evaluation of the experience of providing such care in their countries, none of them have been moved to adopt a categorical ban.

“Rather than protecting children or safeguarding medical ethics,” the judge concluded, “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 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.”