ACLU sues to block new transgender law

State’s ban on affirming treatment for youths unconstitutional, suit says

Arkansas Attorney General Leslie Rutledge gives a press conference in this Wednesday, Feb. 19, 2020 file photo.

A lawsuit challenging Arkansas' one-of-its-kind ban on gender-affirming medical treatment for transgender youths was filed Tuesday afternoon in federal court in Little Rock.

The American Civil Liberties Union of Arkansas filed the lawsuit seeking to block implementation of the law, which it said would prohibit health care professionals from providing or referring transgender young people for medically necessary health care. The GOP-sponsored legislation prohibits providing surgeries -- which are not currently done on children in the state -- and hormones to people under 18.

The lawsuit was filed on behalf of the families of four transgender youths living in Arkansas and two medical doctors and their patients.

The lawsuit named Arkansas Attorney General Leslie Rutledge, Arkansas State Medical Board Director Amy Embry, and the 14 members of the State Medical Board as defendants.

It alleges that, in addition to violating the Equal Protection Clause, the law violates the due process clause of the Fourteenth Amendment and the First Amendment's free speech protections.

The lawsuit asks that the court enter a judgment declaring that the law is unenforceable because of the constitutional violations it presents, and that preliminary and permanent injunctions be granted to block its implementation. The complaint also asks that the plaintiffs be awarded monetary compensation for costs and expenses, including attorneys fees.

In a news release, the ACLU of Arkansas said the law -- Act 626 of 2021 -- also bars any state funds or insurance coverage for gender-affirming health care for transgender people under 18 and would allow private insurers to refuse coverage of gender-affirming care for people of any age, calling it a violation of the U.S. Constitution.

In the release, the ACLU said the law "violates the Equal Protection Clause of the Fourteenth Amendment because it discriminates on the basis of sex and transgender status by prohibiting certain medical treatments only for transgender patients and only when the care is 'related to gender transition,' it violates parental autonomy of the parent plaintiffs guaranteed by the due process clause of the Fourteenth Amendment, and it violates all plaintiffs free speech protections under the First Amendment."

Holly Dickson, executive director of the ACLU of Arkansas, said if the law is allowed to go into effect, it would force many families of transgender youths to leave the state to seek appropriate medical care.

"Gender-affirming care is life-saving care for our clients, and they're terrified of what will happen if this law is allowed to take effect," Dickson said. "No child should be cut off from the medical care they need or denied their fundamental right to be themselves -- but this law would do both. We're suing to stop this cruel and unconstitutional law from taking effect and inflicting further harm on these children and their families."

House Bill 1570 -- officially named the "Save Adolescents From Experimentation (SAFE) Act -- was filed Feb. 25, 2021, by Rep. Robin Lundstrum, R-Elm Springs. It passed in the House on March 10 by a vote of 70-22, passed in the Senate nine days later by a vote of 28-7 and was vetoed by Gov. Asa Hutchinson on April 5. Less than 24 hours later, both chambers voted by overwhelming margins to override the governor's veto, making the law Act 626 of 2021.

The law is to go into effect July 28 unless the court intervenes.

The law would prohibit the use of hormones and puberty-blocking drugs for youths, and prohibit any type of gender-affirming surgical procedures, even though such procedures are not provided for youths in the state. The law would also prohibit insurance coverage for gender-affirmation treatment for youths and remove any requirement that insurance carriers provide any coverage for gender-affirmation procedures in general.

Leading medical associations consider gender-affirming treatment best-practice and potentially life-saving care that positively affects mental health outcomes. The treatments that the law would ban as experiments are some that experts in gender-diverse health care say have been used successfully for decades.

Last month, the American Medical Association -- in a letter to the National Governors Association -- urged governors to oppose state legislation that would prohibit medically necessary gender transition-related care for minor patients.

"Empirical evidence has demonstrated that trans and non-binary gender identities are normal variations of human identity and expression," the AMA wrote in the letter. "Every major medical association in the United States recognizes the medical necessity of transition-related care for improving the physical and mental health of transgender people."

In a statement emailed to the Arkansas Democrat-Gazette, Rutledge vowed to defend the law.

"I will aggressively defend Arkansas's law which strongly limits permanent, life-altering sex changes to adolescents," Rutledge said in the statement. "I won't sit idly by while radical groups such as the ACLU use our children as pawns for their own social agenda."

"I would encourage the attorney general to read the complaint and the stories of the children who have already been traumatized by this law and to reflect on the fact that these children, their families and their physicians are challenging this law," Dickson said. "All the major medical associations oppose this bill and disagree with the attorney general."

Dickson said Arkansas is the first, and so far the only state in the nation to pass a law as restrictive as the SAFE Act.