Tuesday 20 June 2023

Judge Strikes Down Arkansas Law Banning Sex-Change Procedures For Minors As ‘Unconstitutional’

 A federal judge struck down Arkansas’ ban on sex-change surgeries and treatments for minors as unconstitutional on Tuesday.

U.S. District Judge Jay Moody issued the ruling, permanently blocking the law — which would have forbidden doctors from providing hormones, puberty blockers, and sex-change surgeries for minors — after temporarily blocking it in 2021. 

“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 Obama-appointed judge wrote in his opinion. 

Moody’s scientific claim stands in sharp contrast to many medical journals that warn of the dangers of such treatments and provide little evidence of benefits to minors, as was highlighted in a recent hearing in the House Subcommittee on Health.

Moody argued that the law violated the due process and equal protection rights of trans-identifying minors. He relied on heavily substantive due process, a theory that argues that the Due Process clause protects rights found nowhere in the U.S. Constitution. 

The judge also argued the 2021 law violated the First Amendment rights of doctors by banning them from referring patients to other providers. He hinged on the fact Arkansas used the word “refer” rather than “prescribing or administering” as evidence the law was viewpoint discrimination, making it unconstitutional.

The first-in-the-nation ruling may set a precedent for 19 other state laws seeking to protect children from sex-denying treatments that are in litigation. While other judges have temporarily blocked similar laws, as in Indiana and Alabama, this is the first such law to be struck down as unconstitutional.

Dylan Brandt, 17, who successfully sued the state in the case, reacted to the decision in a statement released by the ACLU.  “I’m so grateful the judge heard my experience of how this health care has changed my life for the better and saw the dangerous impact this law could have on my life and that of countless other transgender people,” he said.

The Arkansas statute was enacted by the Arkansas legislature in 2021 over the veto of then-Governor Asa Hutchinson, who is now running for the 2024 Republican presidential nomination. Hutchinson said the law was “extreme” because it affected those already receiving sex-change treatments. The law was the first in the United States to ban the controversial treatments.

Hutchinson’s successor, Governor Sarah Huckabee Sanders, signed legislation to effectively restore the 2021 law by creating an avenue for individuals who received “gender affirming care” to pursue civil litigation against medical providers who perform sex change procedures on minors. According to legal experts, the 2023 law, which takes effect this summer, effectively stops those treatments by making it impossible for medical providers to get malpractice insurance.

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