Plaintiffs in the federal trial contesting the constitutionality of the state's ban on transgender health care for minors rested their case Friday morning after which U.S. District Judge James M. Moody Jr. denied a motion by the state for a judgment as a matter of law on the grounds that the plaintiffs had not proved their case.
"We don't think the evidence provided by the plaintiffs case-in-chief entitles them to any relief on their legal claims," said Dylan Jacobs, the lead attorney on the case for the state and deputy solicitor general with the office of Attorney General Leslie Rutledge.
After testimony Friday from three "adverse witnesses," two of whom testified under seal due to their testimony regarding medical records of the youth plaintiffs, the court recessed the trial for five weeks, with plans to reconvene for four days beginning Nov. 28. The two witnesses under seal, Dr. Stephanie Ho and Dr. Cathy Campbell, were part of the treatment team for plaintiff Sabrina Jennen and were allowed to testify under seal to keep Jennen's medical information confidential.
Dr. Janet Cathey, the director of transgender health for Planned Parenthood Great Plains -- which operates health centers in Arkansas, Kansas, Missouri and Oklahoma -- testified to the guidelines followed by Planned Parenthood when treating transgender teens. Cathey, who was on the witness stand for just over a half-hour, said she has been treating gender dysphoria patients for almost 40 years. She said that the number of minor transgender patients has slowed significantly since the Arkansas Children's Hospital Gender Spectrum Clinic was founded in 2015. She said the last under-18 patient she had seen for gender dysphoria was in June 2021.
"Does that conclude our festivities today?" Moody deadpanned after Cathey's testimony.
ACLU attorneys filed the lawsuit against Rutledge and the state Medical Board in May 2021, saying that Act 626 of 2021, the Save Adolescents From Experimentation (SAFE) Act, violated the constitutional rights of four transgender youths and their families by discriminating against them in prohibiting what they contend is lifesaving medical care designed to alleviate their symptoms of gender dysphoria. The law would prohibit doctors in Arkansas from providing medical gender-affirming care to youths and would make it a criminal offense for those doctors to refer their patients to out-of-state providers who would be able to provide treatment. The law would also remove any requirement that an insurance provider pay for transgender treatment for anyone and would prohibit providers from paying for transgender treatment for minors.
In July 2021, Moody issued a temporary injunction to block implementation of the law until the case could be heard. Last August, the 8th Circuit Court of Appeals affirmed Moody's ruling.
The lawsuit was filed on behalf of the four transgender youths -- three of whom are teenagers and have begun hormone therapy that medical experts have testified is necessary to align their physical development with their gender identity -- their parents and two doctors who provide transgender therapy. Four of the parents, one of the teens and both doctors testified during the first phase of the trial, which was limited to one week because of a scheduling miscommunication between Moody's court and the trial lawyers.
Earlier Friday, in arguing for the dismissal of the plaintiffs' case, Jacobs argued that the state's position remains that Act 626 does not discriminate on the basis of sex.
"What the act prohibits is not the same as the other indicated uses of these medications," Jacobs said, referring to the "off-label" uses of hormones to treat transgender patients, "even if it happens to be the same drug that is used in these different procedures."
Off-label refers to the use of medicines for purposes other than what they were approved for by the U.S. Food and Drug Administration, but expert testimony in the trial had indicated that many medications used in pediatrics are used "off-label," typically because the patient populations are so small, it is not cost-effective for pharmaceutical manufacturers to go to the expense of seeking FDA approval for the use in children.
"As for puberty blockers," he said, "there's no difference in the treatment between men and women, males and females, it's the same protocol and the act operates the same as to both sexes."
In regard to cross-sex hormones, such as testosterone used in masculinizing hormone therapy for transgender males and estrogen used in feminizing hormone therapy for transgender females, Jacobs said that using "testosterone to treat delayed puberty in boys is not the same as using it for gender transition in girls."
"There's largely no medical indication for cross-sex hormones beyond the gender transition procedures at issue," he said.
Regarding gender transition surgery on minors, which the law also prohibits, Jacobs said the plaintiffs had not addressed the issue beyond what are colloquially referred to as "top surgeries," which are chest surgeries performed on transgender males to remove breast tissue. During the plaintiffs' presentation, several expert witnesses said such top surgeries are sometimes performed on minors as young as 16, but only in consultation with parents or legal guardians, health care providers and psychologists to ensure the surgery is appropriate for an individual patient.
What are referred to as "bottom surgeries," which are performed on genitalia, are not performed in Arkansas, according to the plaintiffs' expert witnesses and the two transgender care providers who were named as plaintiffs, Dr. Michele Hutchison and Dr. Kathyrn Stambough. Hutchison is the former director of the Gender Spectrum Clinic at Arkansas Children's Hospital and Stambough is the current director.
Jacobs said little testimony was provided on the impact of the act's prohibition on physician referrals to buttress the free speech claims of the plaintiffs, which prompted questions from Moody.
"The SAFE Act prohibits referrals?" the judge asked.
"It does," Jacobs replied.
"The SAFE Act is suspended right now so there's no need to refer," Moody said. "It's not until they can't do things that referral becomes an issue."
Jacobs, disagreeing with Moody, argued that the prohibition on referrals in the act had no effect on speech. He said, in the state's viewpoint, a provider using medical judgment to recommend a medical procedure and a recommendation of another provider to perform such a procedure is a restriction on conduct rather than speech, which he said is a right reserved to the state in regulating medical practices.
"It's our position that this is a restriction on a medical procedure," he said. "Not a free speech issue."
As ACLU attorney Chase Strangio began to rebut the state's claims and argue for a strict scrutiny application of judicial review of the law, Moody cut in.
"Part of the argument that Mr. Jacobs conceded is that I'm bound by the 8th Circuit panel's ruling on that," Moody said. "At this point in the procedure, I'm bound to accept your argument so I'm not sure you need to make it ... Go ahead and make it if you want to but I have my marching orders from the 8th Circuit."
Moody said the ruling from the 8th Circuit affirming his temporary injunction agreed that the strict scrutiny application of the law applied. In affirming Moody's temporary injunction of Act 626, the 8th Circuit ruled that the law does discriminate on the basis of sex and under the strict scrutiny standard, the state has the burden to demonstrate that a compelling interest exists on the part of the state to justify the discrimination in order for the law to stand.
After Friday's testimony, Moody recessed the trial until late November, at which time court will reconvene to conclude the state's defense. Moody has given no timeline on when a ruling may be expected once the trial concludes.