Trial resumed Monday morning -- after a five-week recess due to scheduling difficulties -- in the lawsuit contesting the state's first-in-the-nation ban on gender-affirming health care for transgender youths under 18, with testimony of a witness for the state who said gender affirmation therapy proponents label efforts to use psychoanalysis to treat gender dysphoria as "conversion therapy."
Act 626 of 2021 -- the Save Adolescents From Experimentation Act -- was passed in March 2021 after both the state House and Senate voted by large margins to override a veto by Gov. Asa Hutchinson. The legislation was challenged the following month in a suit filed by the American Civil Liberties Union, and three months later, a week before the law was set to go into effect, U.S. District Judge James M. Moody Jr. issued a temporary injunction blocking it from being enforced while the matter is in court.
A three-judge panel on the 8th U.S. Circuit Court of Appeals upheld Moody's injunction in August. The court ruled just over a week ago that it would not take up the matter for reconsideration by the full 8th Circuit, denying an appeal motion of Moody's ruling filed by Attorney General Leslie Rutledge's office. The lawsuit, which was filed by the American Civil Liberties Union on behalf of the plaintiffs, contends the law violates the equal protection and due process clauses of the 14th Amendment and free speech protections under the First Amendment.
Dr. Stephen Levine, a clinical psychiatrist at Case Western Reserve University School of Medicine in Ohio, testified Monday that the standards of care established by the World Professional Association for Transgender Health are intended to advocate for transgender affirmation therapies and not to address the root causes of gender dysphoria. Levine said that psychological disorders are typically treated early with a comprehensive psychological evaluation, but he said gender dysphoria represents the lone exception.
"Affirmative care says treatment should only be supportive of transgender therapy," Levine said.
His testimony contradicted the testimony in the first week of the trial in which expert psychiatric witnesses for the plaintiffs stressed the need to evaluate patients to ensure that gender dysphoria was an accurate diagnosis or if other factors were at the root of the patient's discomfort.
In addition, Dr. Michele Hutchison, former director of Arkansas Children's Hospital's gender clinic, and Dr. Kathyrn Stambough, the current director, testified that Arkansas patients are required to actively participate in mental health treatment in addition to any hormone therapy they may receive.
Over the course of more than six hours, Levine testified to a body of knowledge in the discipline of gender care that he said has evolved over the past 50 years in ways with which the U.S. has not kept pace. He said standards of care in the U.S. are more geared toward affirmation of gender dysphoria and not true exploration of the disorder, a model he said European countries are beginning to back away from.
"It's been interesting to watch," he said, "the evolution of gender identity."
He said the problem with gender affirmation treatments, including hormone therapy and surgery, is that the lasting effects can lead to regret over transition, which he said affects some 30% of those who have the treatments. But, he said, the standards of care outlined in the WPATH Standards of Care 7, published in 2011, emphasized that the role of psychiatry and mental health treatment in transgender care should be supportive of treatment, and he said at about the same time, cases of gender dysphoria began rising in adolescents and pre-pubertal children.
"There has been a dramatic increase in requests for trans-related affirmative services, or at least psychiatric evaluations," he said, "over the course of 10 or 15 years."
Levine said until recently, the incidence of biological males who identified as female stood at 3.5 for every biological female who identified as male but that ratio has turned in recent years to a 7-to-1 ratio of biological females identifying as male to biological males identifying as female in some clinics.
He said also in recent years there has been a higher incidence of pre-pubertal children displaying signs of gender dysphoria, which he said can be attributed to increased social exposure via the internet, in media, fashion or in social or political movements.
"The celebration of the trans life as a diverse life and part of an ideology of including more and more people in the right to have a full life without discrimination," he said.
"Those are the big social things, and how that affects the brain of a developing child, none of us are sure."
Cross-examination by ACLU attorney Leslie Cooper became strained as Levine bristled under her questioning, as she attempted to drill down into the details of how much knowledge Levine had about the standards of care practiced in Arkansas and elsewhere around the nation in the estimated 70 gender identity clinics currently in operation.
"There are many, many practitioners," he said. "How would I possibly know how they all provide care?"
"You don't know how common it is for clinicians to provide hormone therapy without a careful assessment of the child and their co-morbidities, is that correct?" Cooper asked.
"I've been in touch with many parents from all over the country who have indicated that to me," Levine said. "But in a numerical sense ... I'm not aware."
But, he added, he had heard many complaints about the lack of mental health care associated with transgender care. He admitted to having no knowledge of the protocols practiced in Arkansas and said he had had no contact with providers in the state. He said all clinicians would say a thorough mental evaluation is standard, however, but said that alone could not guarantee a thorough assessment.
"The question is, what is a thorough assessment and how long does that take," he said. "It may very well be that 100% of doctors in Arkansas think they are doing a thorough assessment."
"But you don't know how many do that assessment, do you?" Cooper asked.
"Nor do you," Levine retorted.
Court resumes at 8 a.m. today with testimony by Dr. Mark Regenerus, a sociologist with the University of Texas at Austin, who will be testifying remotely from Europe. His testimony is to be followed by testimony from Dr. Patrick Lappert, a cosmetic surgeon who practices in Decatur, Ala., and operates a skin care clinic there.