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Arkansas asks panel to revive ban on transgender health care for minors

An attorney for the state compared transgender medical treatment for minors to assisted suicide while arguing Arkansas has a legitimate governmental interest in enforcing the controversial ban.

ST. LOUIS (CN) — A lawyer from the Arkansas attorney general’s office compared transgender health care to assisted suicide while attempting to revive the state’s ban on the medical procedures before the Eighth Circuit on Wednesday morning.

The state’s attorney Dylan L. Jacobs made the comparison by citing the 1997 Supreme Court case in Washington v. Glucksberg that held that the right to an assisted suicide was not protected by the Due Process Clause.

“I think Glucksberg probably falls within that,” Jacobs told the court when questioned whether the state had a legitimate interest in banning transgender medical treatment for minors. “Physicians determining that assisted suicide is within the interests of their patients and the Supreme Court there said that there's a rational basis for states choosing to prohibit that.”

At issue is House Bill 1570, which prohibits health care professionals from providing or referring minors for gender-affirming care and bars state funds or insurance from covering transgender health services to minors. If allowed to take effect, the law would also allow private insurers to refuse to cover transgender-related health services for people of any age.

A federal judge issued an injunction against the law 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, prompting the state's appeal to the Eighth Circuit.

“At best, what we have from the defendants is the argument that there is some uncertainty, that there are some questions about diagnosis, but they have not explained why categorically banning this care, and this care alone, substantially advances an important governmental interest,” said the plaintiffs’ attorney Chase Strangio of the American Civil Liberties Union.

Jacobs argued that gender dysphoria, a sense of unease that a person may have because of a mismatch between their biological sex and their gender identity, can dissipate as a person grows older.

He also claimed the plaintiffs did not prove in the court record that there was a history of discrimination against them, prompting U.S. Circuit Judge Jane Kelly to ask, “Does the state seriously dispute that?”

Kelly, a Barack Obama appointee, questioned Jacobs on Arkansas’ statute that offers patients, including minors, the right to try experimental drugs to fight diseases such as cancer.

“So, in that instance, you're focusing on the potential benefits you missed when you're focusing on the potential risk,” Kelly said. “Like, why wouldn't you look also at the potential benefits that this district court got evidence that there were children who truly did benefit from this based on the advice of their of their physicians as well as the counsel of their parents?”

Jacobs answered that the state’s interest comes with the identifiable, permanent long-term risks and that the benefits have not been established.

Jacobs’ allotted time ended with U.S. Circuit Judge James B. Loken, a George H.W. Bush appointee, grilling him on the rationality of the prohibition.

“If the prohibition on the procedures themselves is rational, and we argue that it is, then it's also rational to take proper steps to prohibit those procedures from being performed on our kids,” Jacobs said.

Loken questioned Strangio on the scope of the injunction and asked if a modification would be appropriate.

Strangio said discovery in the case has been completed and a trial is scheduled for October. Loken asked what the irreparable injury would be if the injunction were lifted with the trial imminent.

“The record has shown that unrebutted testimony of the individual plaintiffs is that they have relied on this treatment, it has been beneficial for them,” Strangio said. “It's status quo that they were receiving care, that doctors, parents and patients were able to work together to provide individualized treatment plan for adolescents who need them. This injunction has now been in place for almost a year. People have been receiving treatment in Arkansas for years. People are relying on this treatment because of this injunction.”

Strangio cited medical testimony that even a four-month pause in treatment of minors could cause puberty to lead to permanent unwanted physical changes as well as the psychological ramifications in patients.

“Dr. [Michele] Hutchison, she's a plaintiff in this case, testified in her declaration that even the passage itself led to multiple suicide attempts with adolescents just based on the fear of losing their treatment,” Strangio said. “And in this case, the individual plaintiffs talk about how afraid they are of going back to a time when they did not have access to this treatment. A time when they were living in bodies that were causing them significant distress and their parents talked about how painful it was to watch their adolescent children suffer.”

Visiting U.S. District Judge Kate M. Menendez, a Joe Biden appointee from the District of Minnesota, rounded out the three-judge panel that took the case under advisement.

Arkansas Governor Asa Hutchinson, a Republican, vetoed HB 1570, also known as Act 626, calling it a “vast government overreach,” but Arkansas’ 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, blocked the law on July 21, 2021, finding it violated the plaintiffs’ right to due process in seeking appropriate medical care.

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.

Before Moody’s decision, the Department of Justice issued a statement of interest in the case on June 17, 2021, which stated: “Act 626 specifically and discriminatorily denies transgender minors, and only transgender minors, the ability to receive medically necessary care based solely on their sex assigned at birth. Discriminating against transgender minors in this manner violates the Equal Protection Clause. Such discrimination would be justified only if Arkansas could show that it is substantially related to achieving an important governmental interest. Arkansas cannot make that showing.”

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