Arkansas federal judge blocks first ban on gender-affirming care

A view of the Arkansas state Capitol in Little Rock, Ark. A federal judge has struck down a 2021 Arkansas law banning gender-affirming care for transgender youths, forbidding the enforcement of the nation’s first law blocking medical treatment for transitioning young people.

A federal judge has struck down a 2021 Arkansas law banning gender-affirming care for transgender youths, forbidding the enforcement of the nation’s first law blocking medical treatment for transitioning young people.

U.S. District Judge James Moody of the Eastern District of Arkansas ruled the law unconstitutional, saying it violated the rights of doctors and discriminated against transgender people. Gender-affirming medical care includes such treatments as puberty blockers and hormone therapy. The law also prohibited doctors from referring trans youths to other providers for gender-affirming care.

Moody’s closely watched ruling marks the first time a federal court has decided the legality of such bans, which have been taken up by a growing number of state legislatures in recent years. As of June 20, at least 20 additional states have enacted restrictions or bans on gender-affirming care, according to data compiled by the ACLU. Florida’s effort to limit such care for trans youths has also severely restricted access to transition-related care for adults.

Arkansas Attorney General Tim Griffin said in a statement posted on Twitter that in his ruling “Judge Moody misses what is widely known: There is no scientific evidence that any child will benefit from these procedures, while the consequences are harmful and often permanent. We will appeal to the Eighth Circuit.”

A handful of medical organizations have raised concerns about gender-affirming care, but leading medical associations, including the World Health Organization, the American Medical Association, the American Academy of Pediatrics and the Endocrine Society, all recommend transgender youths be able to access this kind of health care.

For now, the ruling only affects Arkansas. But its impact is expected to extend further, particularly once it is appealed, said Holly Dickson, executive director of the ACLU of Arkansas. “Certainly, it should be illustrative to not just the courts, but to lawmakers around the country who are thinking about these bans and whether they should implement them,” Dickson said.

This is the first federal court ruling on a categorical ban on gender-affirming care and follows rulings in Florida, Alabama and Indiana blocking enforcement of those bans while challenges against them proceed.

Moody already had temporarily blocked the law from taking effect. In his decision Tuesday, he wrote: “Rather than protecting children or safeguarding medical ethics, the evidence showed that the prohibited medical care improves the mental health and well-being of patients and that, by prohibiting it, the state undermined the interests it claims to be advancing.”

The trial had been closely watched by many activists, lawmakers, legal advocates and trans people around the country. Shortly after the complaint was filed in May 2021, the Department of Justice submitted a statement of interest in support of the plaintiffs, saying the case “implicates important federal interests.”

Before 2020, not a single state had introduced legislation to ban gender-affirming care, according to the Movement Advancement Project, a nonpartisan think tank that tracks LGBTQ policy. When Arkansas passed its ban in 2021, it was considered the strictest anti-trans law in the country. Called the Save Adolescents From Experimentation (SAFE) Act, the ban was intended to stop physicians from providing “gender transition” treatments, including hormones, puberty blockers and surgeries, to those under 18. It was originally vetoed by former governor Asa Hutchinson (R), who called it “vast government overreach” (a Republican supermajority successfully overrode his veto).

But these bans, as well as other restrictions on transition care, have gained steam since. Two states, Arizona and Alabama, passed similar bans last year. In the first six months of 2023, roughly 34 states have introduced more than 100 different gender-affirming care restrictions in their legislatures, according to the ACLU. In some states, like Texas and Florida, state officials have also tried to bar access to gender-affirming care through executive action and state medical boards.

Conservative lawmakers and activists have argued that these bans are necessary to protect minors, with many calling gender-affirming treatments “experimental” and “irreversible.” In court documents, Arkansas questioned whether “children can ever truly consent” to such procedures. But in the last year, some states have proposed moving the age threshold for receiving gender-affirming higher: In Oklahoma, a bill would make providing this care to trans people under 26 a felony.

These bills note that these procedures remain legal — including genital surgeries and breast augmentation for minors — as long as they are not used to treat gender dysmorphia. In its challenge to the Arkansas ban, the ACLU argued that this selective prohibition was discriminatory.

In response to increasing efforts to make such care illegal, the American Academy of Pediatrics released a statement in August 2022 pushing back against “rampant disinformation” fueled by extremists.

“There is strong consensus among the most prominent medical organizations worldwide that evidence-based, gender-affirming care for transgender children and adolescents is medically necessary and appropriate. It can even be lifesaving,” wrote the group’s president. “Pediatricians will not stay silent as these lies are waged against our patients and peers.”

The plaintiffs in the Arkansas lawsuit include a doctor who provided gender-affirming care in the state, as well as four transgender youths and their families. Dylan Brandt, 17, and his mother Joanna Brandt of Greenwood, Ark., were among them.

Their battle against the law began when it was still a bill in committee, the Brandts told The Washington Post in an interview before the ruling came down. In legal filings, Dylan, who came out as trans when he was in middle school, described a long, considered process that included a consultations with a therapist, psychiatrist, social worker and a chaplain.

But when the Brandts testified before lawmakers, they didn’t seem interested in what they had to say: “It was really defeating, honestly,” Dylan said.

They joined the ACLU lawsuit in part in part because they didn’t feel the same pressures other families did to lay low, said Joanna Brandt. She owns her own business, and she “chose to believe” her participation in the legal challenge would not affect it. But, “if for some reason it did, it was still a worthwhile cause.”

“I just mostly and generally am not a fan of being told what to do, and this was the epitome of being told what to do,” Joanna Brandt said.

Plaintiffs who spoke to The Post noted that the lawsuit wasn’t their only concern when it came to trans rights.

Sabrina Jennen’s parents said they were disappointed in how much misinformation about gender-affirming care had proliferated over the last two years, as well as the rash of similar bans that have been introduced since Arkansas passed its own. Even more than the landmark ruling, they are worried that the Arkansas legislature will continue to set new standards for restricting trans rights this year.

Regardless, they know that the ruling will continue to shape their family for years — and that they are in this fight for the long haul, said Sabrina’s father, Aaron Jennen.

“We’re not blind to the fact that whatever the ruling is, it will be appealed, and that this will continue on for some time,” Jennen said. It is “just one step in a process.”