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Panel refuses to reinstate Arkansas ban on transgender medical treatment for minors

Three Eighth Circuit judges unanimously found that substantial medical evidence shows hormone therapy has numerous psychological benefits for patients.

ST. LOUIS (CN) — A three-judge panel of the Eighth Circuit on Thursday unanimously upheld a federal judge’s injunction against an Arkansas law banning transgender medical treatment for minors.

“In sum, having reviewed the evidence as a whole, we are not left with the ‘definite and firm conviction’ that the district court’s factual findings are clearly erroneous,” U.S. Circuit Judge Jane Kelly, a Barack Obama appointee, wrote in the St. Louis-based appeals court's 11-page opinion. “Rather, substantial evidence in the record supports its factual findings.”

Amanda Priest, a spokesperson for Arkansas Attorney General Leslie Rutledge, a Republican, said her office will appeal.

“The Attorney General is extremely disappointed in today’s dangerously wrong decision by the three-judge panel and plans to seek review by the full Eighth Circuit Court of Appeals,” Priest said in a statement.

Plaintiffs' attorney Chase Strangio, deputy director for Transgender Justice at the American Civil Liberty Union’s LGBTQ & HIV Project, lauded the ruling.

“This is a critical victory for transgender adolescents in Arkansas, their families, and their medical providers,” Strangio said in a statement. “The Eighth Circuit was abundantly clear that the state’s ban on care does not advance any important governmental interest and the state’s defense of the law is lacking in legal or evidentiary support. The state has no business categorically singling out this care for prohibition. We know adolescents thrive with this care, support, and love, and we’re determined to keep fighting until this baseless law is permanently struck down.” 

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 it takes effect, the law would also allow private insurers to refuse to cover transgender-related health services for people of any age.

Arkansas Governor Asa Hutchinson, also a Republican, vetoed HB 1570, 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., an 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.

Arkansas attorneys argued that plaintiffs lacked standing because none of the minor plaintiffs has declared an intent to undergo a gender reassignment surgery, but the Eighth Circuit rejected that argument and cited precent in Lujan vs. Defenders of Wildlife, a landmark Supreme Court decision in 1992 that heightened standing requirements.

“But Arkansas does not contest that Plaintiffs have met their burden under Lujan to challenge other parts of the Act, and this court declines the State’s invitation to modify well-established constitutional standing principles to require that a plaintiff demonstrate an injury traceable to every possible application of the challenged statute in order to satisfy the constitutional standing requirement,” Kelly wrote.

The appeals court noted that the law on its face discriminates on the basis of sex. Such laws must be supported by an “exceedingly persuasive justification” so long as the government meets its burden to show a sufficiently important government interest.

“The district court found that the Act prohibits medical treatment that conforms with ‘the recognized standard of care for adolescent gender dysphoria,’ that such treatment ‘is supported by medical evidence that has been subject to rigorous study,’ and that the purpose of the Act is ‘not to ban a treatment [but] to ban an outcome that the State deems undesirable.’ The record at this stage provides substantial evidence to support these factual findings,” Kelly wrote.

Strangio argued irreparable harm during a June hearing before the Eighth Circuit. Strangio told the panel even a slight pause in treatment of minors could cause puberty to lead to permanent unwanted physical changes as well as the psychological ramifications in patients.

State’s attorney Dylan L. 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.

The appeals court wasn’t swayed.

“Furthermore, substantial evidence in the record supports the district court’s factual findings, despite the contrary assertions of the State’s experts,” Kelly wrote. “For example, while Arkansas’s experts criticize the structure and scale of research on hormone therapies for adolescents with gender dysphoria, study design is only one factor among many that medical professionals properly consider when they review research and determine what course of action to recommend to a patient. And there is evidence in the record that these hormone treatments have been evaluated in the same manner as many other medical innovations.”

Kelly also noted that several studies on hormone treatment for adolescents, including one by the British National Institute for Health & Care Excellence, “have shown statistically significant positive effects of hormone treatment on the mental health, suicidality, and quality of life of adolescents with gender dysphoria. None has shown negative effects.”

U.S. Circuit Judge James B. Loken, a George H.W. Bush appointee, and visiting U.S. District Judge Kate M. Menendez, a Joe Biden appointee from the District of Minnesota, rounded out the three-judge panel.

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.

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