ST. LOUIS (CN) — Arkansas attempted to revive a law that would ban gender-affirming care to minors in an en banc hearing before the Eighth Circuit on Thursday.
Arkansas Deputy Solicitor General Dylan L. Jacobs argued during the 40-minute proceeding that a federal judge improperly applied intermediate scrutiny in issuing a permanent injunction against the law.
“Arkansas law does not discriminate based on sex,” Jacobs said. “It does not discriminate based on transgender status. It does not run afoul of any parental rights by the Constitution.”
But Chase Strangio, of the American Civil Liberties Union, pushed back on that argument.
“This is a law that hinges its prohibition on biological sex, which still affects classification,” Strangio said. “It still requires the application of heightened scrutiny.”
At issue is House Bill 1570, also known as the Save Adolescents from Experimentation — or SAFE — Act, which prohibits health care professionals from providing or referring minors for gender-affirming care. The bill also bars state funds or insurance from covering transgender health services for minors. If it takes effect, the law would allow private insurers to refuse to cover transgender-related health services for people of any age.
U.S. Circuit Judge Jane Kelly — the only Eighth Circuit judge appointed by a Democratic president — questioned Jacobs at length during this argument time, asking about the importance of gender in treatment, specifically whether the doctor needs to know the gender of the patient.
“Yes, from the perspective of the doctor, knowing what treatments ought to be provided and available in his medical judgment,” Jacobs said. “However, for purposes of the act, the doctor does not need to know a minor’s sex to determine whether the SAFE Act restricts a doctor's decision to prescribe a given drug to a given minor.”
Jacobs added that he believed the district court’s approach of weighing the medical evidence was not a proper application of intermediate scrutiny.
Kelly seemed unswayed.
“Here you had evidence,” Kelly said. “The state put on evidence, and the plaintiffs put on evidence, and it involves medical testimony. And so, you're saying that the district court was not to make its conclusion on which medical experts were credible and which were not?”
U.S. Circuit Judge David R. Stras questioned both sides on the age cutoff of 18. The Donald Trump appointee pointed to medical evidence that minors’ brains weren’t fully developed and asked if that was part of the justification of the law.
“If the record was fundamentally different than the record we have, I think the state would have had an easier time carrying a burden showing that this law substantially advances an important governmental interest,” Strangio said. “What the record did show was that rates of regret are extremely rare and that they weren't unique to the medical treatment.”
Strangio noted the district court ultimately found this law harms children.
“Even the state's expert … testified that the effects of this law would be shocking and devastating to the adolescents who rely on this care,” Strangio said. “And he went so far as to predict that doctors would find their way around this.”
Arkansas Governor Asa Hutchinson, a Republican, vetoed HB 1570 in April 2021, also known as Act 626, calling it a “vast government overreach,” but the GOP-dominated Legislature overrode the veto by a 71-24 vote within 24 hours, making it the first state to ban gender-confirming treatments and surgery for transgender youth.
U.S. District Judge James M. Moody Jr., a Barack Obama appointee, issued an injunction against the law in June 2021, after four families with transgender children and two doctors filed a lawsuit in May 2021 claiming HB 1570 violated their First and 14th amendment rights. Moody’s decision prompted the state's appeal to the Eighth Circuit.
In August 2022, a three-judge panel of the Eighth Circuit unanimously upheld the injunction. That panel included Kelly, a Barack Obama appointee, and visiting U.S. District Judge Kate Menendez, a Joe Biden appointee.
Arkansas appealed that ruling and was granted an en banc hearing before the Eighth Circuit.
The law was passed as part of a wave of anti-transgender bills throughout the country as 19 other states proposed similar legislation in 2021. The year before, 15 states introduced legislation that would ban, and in some instances criminalize, access to health care for transgender youth, according to the ACLU.
The court took the arguments under consideration. There is no timetable for a decision.
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