Federal judge strikes down Arkansas' gender-affirming health care ban as unconstitutional

A federal judge in Little Rock struck down Arkansas’ first-in-the-nation ban on gender affirming healthcare treatments for minors as unconstitutional on Tuesday, saying the law violates the Constitutional rights of transgender youth, their parents, and their medical providers.

In his ruling, U.S. District Judge James M. Moody held that the plaintiffs — four transgender youths, their families and their doctors — had prevailed on all their claims and ruled the ban violates the Equal Protection Clause, the Due Process Clauses, and the First Amendment of the U.S. Constitution. Two years ago in July, in a rare ruling from the bench, Moody granted a temporary injunction to block the law from going into effect until the case was resolved. That ruling came two weeks before the law was set to go into effect.

A ruling last year by a three-judge panel of the 8th Circuit Court of Appeals upheld Moody’s temporary injunction and an appeal by the state for an en banc hearing — meaning before the full 8th Circuit — was rejected.

Tuesday’s ruling makes the injunction permanent.

The law, Act 626 of 2021, had it gone into effect, would have prohibited doctors from providing or referring transgender young people for medically necessary health care related to the medically recognized condition known as “gender dysphoria.” Gender dysphoria is defined by the Mayo Clinic in Rochester, Minn., as the feeling of discomfort or distress that might occur in people whose gender identity differs from their sex assigned at birth or sex-related physical characteristics.

The legislation would have prohibited the use of hormones and puberty-blocking drugs for young people and gender-affirming surgical procedures, as well as insurance coverage for gender-affirmation treatment for the young and remove any requirement that insurance carriers provide any coverage for gender-affirmation procedures in general. It was passed in 2021 by GOP super-majorities in both the House and Senate, which overrode a veto by Gov. Asa Hutchinson to pass the legislation.

Plaintiffs in the case, represented by attorneys from the American Civil Liberties Union, are Dylan Brandt, Parker Saxton, Sabrina Jennen and Brooke Dennis and their parents, Joanna Brandt, Donnie Saxton, Aaron and Lacey Jennen, Shayne and Amanda Dennis, and two physicians who provide health care for transgender teens, Dr. Michele Hutchison and Dr. Kathryn Stambough.

Defendants in the case, represented by a legal team from the state’s attorney general’s office, are Arkansas Attorney General Tim Griffin, Medical Board Director Amy Embry and Medical Board members Sylvia Simon, Robert Breving Jr., John Scribner, Elizabeth Anderson, Rhys Branman, Edward “Ward” Gardner, Rodney Griffin, Betty Guhman, Bryan Hyatt, Timothy Paden, Don Philips, William Rutledge, David Staggs and Veryl Hodges.

Moody’s decision comes more than six months after the conclusion of a two-week bench trial held last year in two parts, concluding in early December, during which healthcare providers testifying for the plaintiffs outlined the benefits of such care. Supporting the plaintiffs in the lawsuit, based on filings with the court, were the U.S. Department of Justice as well as a number of professional medical organizations including the American Medical Association, the American Psychiatric Association, the Endocrine Society, the Pediatric Endocrine Society, and the World Professional Association for Transgender Health, among others.

Moody said in his ruling that experts for the plaintiffs had outlined numerous studies undertaken in the U.S. and around the world and said evidence presented at trial “showed that the prohibited medical care improves the health and well-being of many adolescents with gender dysphoria.”

He said that testimony was bolstered by the testimony of the parent plaintiffs, who testified to the positive transformation their children had experienced once they began treatment for gender dysphoria.

“This care allowed them to grow from depressed, anxious, and withdrawn young people into happy and healthy teenagers who looked forward to their futures,” Moody wrote, adding that, “the State offered no evidence to refute the decades of clinical experience demonstrating the efficacy of gender-affirming medical care.”

Moody said the state’s case hinged on a claim that banning gender-affirming care would protect children from experimental medical treatments and that the state claimed there is a lack of evidence to support the efficacy of such care, that the banned treatment has serious risks and side effects, that many patients will desist in their gender incongruence, that some patients will later regret receiving the treatments and that such treatments are provided without appropriate evaluation and informed consent.

“The evidence presented at trial does not support these assertions,” he wrote, saying that the risks outlined of hormone therapy are the same for transgender and cisgender people alike and are discussed with parents and patients to allow transgender patients and their families to make informed decisions.

In a press release Tuesday, Griffin attacked Moody’s ruling, claiming that no scientific evidence exists to prove that young people will benefit from such care and he vowed to appeal the ruling to the 8th Circuit.

“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 from his office. “Unfortunately, Judge Moody misses what is widely understood across the United States and in the United Kingdom and European countries: There is no scientific evidence that any child will benefit from these procedures, while the consequences are harmful and often permanent. I will continue fighting as long as it takes to stop providers from sterilizing children.”

Gov. Sarah Huckabee Sanders also attacked the ruling via Twitter, saying transgender care “is not ‘care,’” but instead claiming that it is the result of a political agenda “at the expense of our kids and subjecting them to permanent and harmful procedures.”

“Only in the far-Left’s woke vision of America is it not appropriate to protect children,” Sanders said in the tweet.

The Democratic Party of Arkansas hailed the ruling in a tweet Tuesday, calling the decision “A Huge Victory for Trans Rights in Arkansas.”

The Campaign for Southern Equality, an LGBTQ advocacy organization based in North Carolina, tweeted “GREAT news in Arkansas,” in a tweet announcing the ruling.

The Democracy Forward Foundation, a non-profit and non-partisan legal services and public policy research organization based in” Washington D.C., called the decision “another Pride Month victory in the courts for LGBTQ+ children, families, and evidence-based medicine.

A press release issued Tuesday by the ACLU of Arkansas said the decision marks, “the first final merits ruling in the country on such a law.” The ACLU said in the release that similar laws in Alabama, Florida, and Indiana are blocked by preliminary injunctions from federal courts and that so far in 2023, the ACLU and its nationwide affiliate network have challenged seven new laws similar to Arkansas’ ban.

Dylan Brandt, the plaintiff for whom the lawsuit is named, expressed his gratitude for the ruling in the ACLU release. 

“I’m so grateful the judge heard my experience of how this health care has changed my life for the better and saw the dangerous impact this law could have on my life and that of countless other transgender people,” Brandt said in the 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. 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.”

Reached by phone Tuesday, Donnie Saxton, the father of 18-year-old Parker Saxton, could barely contain his excitement over the news.

“I’m doing great, I couldn’t be better,” Saxton said. “Everything is perfect, it couldn’t be better right now.”

Saxton said that Parker, who had just made his first solo trip to the Arkansas Children’s Hospital Gender Spectrum Clinic Tuesday morning, had returned home and was asleep when the ruling was announced.

“I tried to call Parker as soon as we got word of the ruling,” Saxton said. “I’m assuming that he has come home and crashed out. He’s going to be overjoyed here in a few minutes when I go in and tell him.”

Saxton said the ruling will relieve a lot of pressure that has been on the family and on Parker.

“He knows now that right is right, that there’s nothing wrong with him and that he can be human,” he said. “He can be the person he needs to be to survive and thrive.”

Holly Dickson, executive director of ACLU of Arkansas, said other legislation, such as a law passed in the recently concluded session allowing patients who have received gender-affirming care as minors to sue their doctors for medical malpractice up to 15 years after they turn 18, could still have a chilling effect on such care but she said she expects the effect to be negligible.

“The physicians who provide gender-affirming care to trans Arkansans aren’t easily bullied or swayed by politics or bad laws,” she said.