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UPDATE: Arkansas argues to lift order against enforcing law that prohibits transgender care for minors

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Attorney General Leslie Rutledge took her fight against a preliminary injunction against the state law prohibiting medical services for transgender minors to the 8th Circuit Court of Appeals today.

Judge James Moody has enjoined the law pending a full trial scheduled later this year.  In the meanwhile, Rutledge is attempting to get the injunction lifted. Oral arguments were scheduled for 20 minutes per side in St. Louis this morning. A recording of those arguments is available on the court’s website.

Today in the Federal Eighth Circuit Court of Appeals in St. Louis, Missouri, the American Civil Liberties Union defended the trial court’s order granting a preliminary injunction which prevented House Bill 1570 (H.B. 1570) law from going into effect. The effect of the injunction has been to ensure that gender affirming health care has remained accessible for transgender adolescents in Arkansas. The lawsuit was filed on behalf of four transgender youth and their families as well as two doctors. The preliminary injunction (a temporary block on the ban of gender-affirming health care) granted by the judge is still in place, so the law banning gender-affirming health care has never gone into effect.

On January 18, 2022, 11 amicus or friend-of-the-court briefs were filed in the U.S. Eighth Circuit Court of Appeals in support of Arkansas trans youth. In addition to doctors in Arkansas opposing H.B. 1570, major medical organizations opposed this law and similar bills proposed throughout the country.

The case is also proceeding to a final trial the week of October 17, 2022.

“We are continuing the fight to keep gender-affirming health care legal in Arkansas, and we will not ever stop fighting for trans youth – this Pride Month or any day, week, month, or year. Gender-affirming health care is life saving care that remains and absolutely should remain legal,” said Holly Dickson, ACLU of Arkansas executive director. “We won’t let politicians in Arkansas — or anywhere else — take away this critical care.”

“Today’s hearing emphasized the urgent need to dispel with this discriminatory and dangerous law,” said Chase Strangio, deputy director for transgender justice with the ACLU’s LGBTQ & HIV Project. “Trans youth in Arkansas and across the nation are undergoing a coordinated strike on their health care and their rights and we’re determined to fight back so that every trans young person can have the future they deserve.”

More on this case can be found here.

PS: In other action related to the cruel crusade against transgender people by Rutledge and other Arkansas Republicans, Rutledge announced today that she had joined other Republican states in objecting to Biden administration rules that would take school lunch and food stamp money away from school districts and any government agencies that discriminate on the basis of sex (a definition that includes protection for LGBT students.) Rutledge spins this as depriving kids of lunches. No, only school districts that discriminate as Rutledge wishes the law would allow.

UPDATE: The state repeated its contention that the law was within its rights to regulate medical practice, particularly these “experimental” procedures. It said was fair to discriminate based on age because of potential harm to minors. Dylan Jacobs, arguing for the state, acknowledged court precedent protects the civil rights of transgender people.

Comments from judges included an observation by Judge James Loken that the state was arguing the merits of the case, not the smaller question of whether the injunction should stand pending trial. He pressed Jacobs for cases that uphold laws blocking physicians from providing care a patient wants. He named a law blocking assisted suicide, which the judge said was a different matter because that blocked an illegal act. He disputed whether the government could “rationally” block a medical practice sought by a patient. Another judge described an Arkansas “right to try” law that allows patients to receive the experimental treatment, while it won’t do so in this case, claiming a risk. Why not look at the benefit as well as risks, the judge, one of two women hearing the case (Jane Kelley and district Judge Kate Menendez), asked. She said there was evidence of benefits for transgender children. The questioning on the state’s basis for choosing this area to legislate against drew a persistent line of questions. Jacobs was also pressed on how the state could argue a prohibition of making a referral was not a 1st Amendment violation, such as in the case of providing information about a doctor in another state who could provide care. Jacobs danced around the question of what “referral” means. It’s not defined, Loken noted. Loken also suggested the law might be unconstitutional in limiting where a patient might receive care because an Arkansas physician couldn’t provide any assistance to someone seeking care where the care was legal. The state defended the rationality of making it difficult to receive help anywhere in the world, a proposition Loken seemed to scoff at.

Chase Strangio, arguing for the ACLU, said the state law put patients and families at risk. Loken questioned him about the breadth of the injunction. He said some portions of the law were rational, or defensible, and he wondered why the injunction hadn’t been narrowed to specific portions of the law. He said the district court should have done this. Prohibition of gender transition procedures is critical, Strangio said. And so is the enforcement prohibition against providers. Strangio was asked specifically about a prohibition on surgical procedures, which none of the plaintiffs are seeking. He said the prohibition included other care and also could be challenged as unequal treatment under the law, whether they sought those procedures or not.

“People are relying on this treatment,” Strangio said. If the junction is lifted, people will have to leave Arkansas for care and perhaps even to live, he said. Even the passage of the act, before it was enforced, led to suicide attempts, he said. Plaintiffs talk about how afraid they are to get back times when they didn’t have this treatment, he said, and parents have testified how hard it was to watch their children suffer.

Strangio said the state has mischaracterized scientific in the case. Menendez noted that the legislature has made much different findings. It’s up to the court to look critically at a state’s justification and not accept readily accept them, Strangio responded. He said the record includes substantial evidence of benefits to plaintiffs.

In sum, Strangio said Arkansas had not demonstrated how categorically banning this type of care advances a government interest.

The case was taken under advisement. There’s no way to know when an opinion will be issued.


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