LITTLE ROCK, Ark. – In a landmark ruling, a federal judge has overturned a state’s law banning gender-affirming health care for minors as near-identical bans are being debated in statehouses across the country.
U.S. District Judge Jay Moody struck down Tuesday Arkansas’ first-in-the-nation ban as unconstitutional, arguing it violated young people’s right to equal protection under the law and due process, and those of their parents. He also ruled Arkansas’ law violated the free speech rights of doctors in the state.
“There’s no question this is a huge victory; it’s a precedent. We all hope and pray that this will have a ripple effect and an impact on other legislators and courts across the country,” Cathy Renna, communications director for the National LGBTQ Task Force, told USA TODAY.
What is gender-affirming care?
Moody’s ruling comes after nearly 20 other states have banned or restricted care for transgender youth. Young people who have already socially transitioned (through changes in hair, clothes and name) have said they need access to gender-affirming puberty blockers to avoid developing physical characteristics that would make them have negative feelings of gender dysphoria.
More than half the bans on gender-affirming health care passed in other states have been challenged in court in recent years by groups including the American Civil Liberties Union. In a few states, judges have temporarily blocked bans, which advocates have long argued target vulnerable young people for the purpose of scoring political points from anti-LGBTQ voters. But Moody’s ruling is the first in the United States to fully block a gender-affirming care ban.
“We hope that this sends a message to other states about the vulnerability of these laws and the many harms that come from passing them. We’re so thankful for the bravery of our clients and the tireless work of advocates in Arkansas,” said Chase Strangio, deputy director for transgender justice at the ACLU’s LGBTQ & HIV Project.
What does the Arkansas case mean for LGBTQ youth in other states?
Across the country, a patchwork of proposed and enacted laws targeting the rights of LGBTQ youth have sparked student protests and forced some families to flee hostile states, USA TODAY has reported.
“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,” said Dylan Brandt, a 17-year-old trans boy in Arkansas and the lead plaintiff in the case.
Moody’s decision to overturn Arkansas’ ban, which had been on the books for over 18 months, could discourage other states from enacting their own bans, because lawmakers will likely get tied up in court and will have a legal disadvantage because of the precedent Moody’s legal opinion sets, legal experts predicted.
This month, in an unprecedented warning to LGBTQ Americans in every state, the Human Rights Campaign declared a state of emergency for LGBTQ rights and urged queer people to be on the lookout for threats of violence and protect each other from harm.
At the same time, the majority of Americans report they oppose the restrictions being passed in GOP-led states, according to a recent poll from the nonpartisan research firm NORC at the University of Chicago and the Williams Institute at UCLA.
“This needs to recharge our batteries,” Renna said. “Because the fight is far from over. We’re in the middle of a terrible storm and the clouds cleared for a moment, but the storm will start again.”
Along with Brandt, three other families of transgender youth and two doctors filed the lawsuit against Arkansas’ ban in May 2021.
Conservative state lawmakers who sponsor these kinds of bans argue gender-affirming medical care is harmful because some physical changes can be irreversible. But qualified health care providers have consistently rebutted the claims, arguing many effects of puberty blockers and hormone replacement therapy do stop once treatment is stopped.
Why did Judge Jay Moody overturn Arkansas’ ban on trans youth care?
In his decision to overturn the law, Moody said the Constitution’s 14th Amendment “forbids states to ‘deprive any person of life, liberty, or property, without due process of law.'”
For transgender young people in Arkansas, Moody wrote, “The liberty interest at issue in this case – the interest of parents in the care, custody, and control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this Court.”
In last year’s trial, a doctor testified Arkansas’ law would restrict her freedom of speech by barring her from referring her patients to other health care providers for the treatment they sought and needed.
Moody’s agreed with the plaintiff, ruling the law was unconstitutional because it focused solely on speech doctors could make related to gender-affirming care.
Moody ruled the law was a “viewpoint-based regulation” of speech, “because it restricts healthcare professionals from making referrals for ‘gender transition procedures’ only, not for other purposes,” he wrote in his decision.
Legal experts said Moody’s legal decision will be a “persuasive” opinion for judges in other states to consider when they preside over similar lawsuits against bans on gender-affirming care.
The most important outcome of Tuesday’s ruling is that Moody found Arkansas’ expert witnesses to be not credible, Remy Green, a civil rights lawyer in New York City, told USA TODAY.
In his decision, Moody wrote Arkansas’ witnesses who testified in support of the ban lacked qualifications to offer their opinions, failed to support their opinions and admitted they were not experts in the treatment of gender dysphoria.
“The state of Arkansas was asked to get the best people they could get and got the medical equivalent of crumbs, loose change and an expired CVS receipt pulled from their pocket,” Green said. “These are not serious people. It’s absolutely garbage.”
In a key victory for LGBTQ advocates, Moody points out in his decision that other states across the country are carting out the exact same expert witnesses that testified in the Arkansas trial, Green said.
Moody wrote in his ruling that the doctors who claimed to be experts on gender-affirming care were recruited by the Alliance Defending Freedom (a Christian legal advocacy group) for the purpose of testifying in court against lawsuits brought by LGBTQ advocates.
“If the Alliance Defending Freedom could have pulled experts that actually had relevant credentials they would have,” Green said. “These experts are the best they got.”
Arkansas’ Republican Attorney General Tim Griffin said in a statement he planned to appeal Moody’s ruling to the 8th U.S. Circuit Court of Appeals, which last year upheld the judge’s temporary order against the law.
If the state of Arkansas appeals, it would be a “mistake,” Green said, because officials there will likely lose. At that point, all the other states in the U.S. 8th Circuit Court of Appeals would be “bound” to the appeals ruling out of Arkansas and they would have to overturn their own laws banning gender-affirming care, Green said.
What states have temporarily blocked gender-affirming care bans for minors?
Federal judges in these states have temporarily blocked laws that banned gender-affirming health care for people under 18, the ACLU states on its website.
In 2023 thus far, the ACLU has challenged seven new laws similar to Arkansas’s ban.
What states have passed youth gender-affirming care bans?
A long list of states have passed and/or enacted laws prohibiting gender-affirming care for people under 18. Some of the first bans were passed in 2021, and many states have passed laws throughout 2023. In some states, elected officials banned gender-affirming health care via orders, circumventing the state legislature.
Here are the states that have restricted or banned gender-affirming health care for minors:
- Florida.
- Georgia.
- Idaho.
- Indiana.
- Iowa.
- Kentucky.
- Mississippi.
- Missouri.
- Montana.
- Nebraska.
- North Dakota.
- Oklahoma.
- South Dakota.
- Tennessee.
- Texas.
- Utah.
- West Virginia.
What states are set to pass youth gender-affirming care bans?
LGBTQ advocates warn GOP-lawmakers in these states are poised to soon pass bans similar to the one that was just overturned in Arkansas:
When did Arkansas pass gender-affirming ban for youth?
Arkansas Republican lawmakers enacted the ban in 2021, overriding a veto from then-GOP Gov. Asa Hutchinson.
At the time, Hutchinson said the law went too far because it cut off treatments for children who were already on a puberty blocker or hormone replacement therapy treatment.
Moody’s decision follows a weekslong trial that took place in the fall of 2022, in which Brandt testified the ban would force him to leave his home state to get treatment legally elsewhere.
The ACLU celebrated the judge’s decision Tuesday, saying lies about gender-affirming care presented by defendants fell apart in court.
“This decision sends a clear message. Fear-mongering and misinformation about this health care do not hold up to scrutiny,” said Holly Dickson, executive director of the ACLU of Arkansas.
Brandt said the ban would have endangered many people’s lives.
“I’m so grateful the judge heard my experience of how this health care has changed my life for the better,” said Brandt.
Contributing: The Associated Press