Arkansas Ban on Gender Transition Treatments for Minors Ruled Unconstitutional

Plus: New rules limit asylum applications, the bad math behind economic doomerism, and more…

ELIZABETH NOLAN BROWN

In 2021, Arkansas banned the prescribing of puberty blockers or hormone treatments to address gender dysphoria in minors, as well as surgical interventions for transgender kids. The law also banned health care providers from referring minors to doctors who would provide gender transition treatments. The state’s Republican governor, Asa Hutchinson, vetoed the measure, saying it would create “new standards of legislative interference with physicians and parents as they deal with some of the most complex and sensitive matters concerning our young people.” But the legislature had enough votes to override that veto.

Since then, a number of states have followed in Arkansas’ footsteps. But lately, these bans have recently been suffering some blows in federal courts. Earlier this month, “a federal judge in Florida issued a preliminary injunction that will permit three transgender children to receive puberty blockers, even as the state has banned gender-affirming care for minors,” as CNBC reported. Similarly, a federal judge last week stopped Indiana’s “ban on puberty blockers and hormones for transgender minors from taking effect” on July 1, notes NPR.

But the Arkansas ruling, issued yesterday, represents a final decision and is the first final merits ruling on a state law banning gender transition treatments for minors.

The decision comes in a lawsuit (Brandt et al v. Rutledge et al) filed by several Arkansas families with transgender children, who were represented by the American Civil Liberties Union.

“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 transgender boy and one of the suit’s plaintiffs, in a statement.

“The undisputed evidence at trial established that, if the Act were to go into effect, (i) three of the Minor Plaintiffs—Parker Saxton, Dylan Brandt, and Sabrina Jennen—would have to discontinue treatment that they, their parents, and their doctors all agree is medically indicated for them and benefitting their health and well-being, and Minor Plaintiff Brooke Dennis would be unable to obtain treatment she will imminently need,” wrote James M. Moody Jr. of the U.S. District Court for the Eastern District of Arkansas in yesterday’s decision. In addition, “the Physician Plaintiff, Dr. Kathryn Stambough, would be unable to treat her patients who need care, leaving them to suffer, and unable to refer them to other doctors to provide care when necessary.” Thus, the plaintiffs had standing to bring the case.

As to the Equal Protection Clause claim, the judge noted that “Act 626 discriminates
on the basis of sex because a minor’s sex at birth determines whether the minor can
receive certain types of medical care under the law.” For instance, a minor being treated for conditions other than gender dysphoria could still be prescribed hormones. The law is therefore a sex-based classification that “discriminates against transgender people,” the judge wrote.

“The evidence at trial showed that the prohibited medical care improves the health
and well-being of many adolescents with gender dysphoria,” continued the decision, which spent pages detailing expert testimony on both the benefits and risks of various treatments for childhood gender dysphoria.

For instance, “it is undisputed that when estrogen is used to treat birth-assigned males, it can sometimes impair their fertility” and “estrogen treatment follows puberty blockers at certain stages of the adolescent’s development, the adolescent can become infertile.” And “when estrogen or anti-androgens are given to birth-assigned males, the hormones can limit the patient’s sexual arousal or ability to orgasm,” the judge points out. But “these risks are discussed with patients and parents. The risks can be managed by the doctor to preserve fertility or treatment can be provided to address a decrease in sexual satisfaction in most cases.”

In other words, the ruling doesn’t shy away from acknowledging the drawbacks involved in certain gender transition treatments. But it situates these firmly in the realm of considerations to be left to patients and doctors, not the state.

“Even if the Court found that Act 626 passed constitutional muster under the Equal
Protection Clause, it fails under due process analysis,” states the decision. “As the Court has previously found, the Parent Plaintiffs have a fundamental right to seek medical care for their children and, in conjunction with their adolescent child’s consent and their doctor’s recommendation, make a judgment that medical care is necessary.”

You can read the whole decision here. Attorney Gabriel Malor has a thread summarizing some of the decision’s key points here:

The Arkansas ban on trans care for minors is permanently enjoined. https://t.co/cfb2yJAKyL pic.twitter.com/HplogHmySK

— Gabriel Malor (@gabrielmalor) June 20, 2023

FREE MINDS

New rules limit asylum applications. A new Biden administration policy says that for the most part, people who travel through a third country on their way to the U.S. but don’t seek asylum from there before entering the U.S. without authorization are ineligible to seek asylum here. The change “has dramatically lowered the percentage of migrants at the southern border who enter the United States and are allowed to apply for asylum,” according to the Los Angeles Times:

But immigrant advocates and legal groups have blasted Biden’s new asylum policy, arguing that it is a repurposed version of a Trump-era effort that made people in similar circumstances ineligible for asylum. (Under Biden’s policy, certain migrants can overcome the presumption that they are ineligible for asylum.) The ACLU and other groups have sought to block the rule in federal court in San Francisco, in front of the same judge who stopped the Trump policy years ago.

The new filing provides the first look at how the Biden administration’s asylum policy is affecting migrants who have ignored the government’s warnings not to cross the border.

“This newly released data confirms that the new asylum restrictions are as harsh as advocates warned,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council. “The data contradicts conservative attacks on the rule for being too lenient. Less than 1 in 10 people subject to the rule have been able to rebut its presumption against asylum eligibility.”

FREE MARKETS

But Cass’ math is all wrong, write Scott Winship and Jeremy Horpedahl at The Dispatch, citing their own report for the American Enterprise Institute. Their report takes aim first at the way Cass calculated the “cost of thriving”:

Winship is becoming one of my favorite writers and researchers on American economic issues and culture for the way he’s willing to question doomer narratives and do the math to back up this skepticism. Check out his recent conversation with me and Nick Gillespie about fertility rates and pro-natalist policies, and his 2021 conversation with Gillespie on three myths about American decline.

QUICK HITS

— Kate Sullivan (@KateSullivanDC) June 20, 2023

• Two reporters in Asheville, North Carolina, were convicted of trespassing for covering police clearing out a homeless encampment in a local public park.

• “A Tucson mother falsely accused of child neglect for letting her 7-year-old son play by himself in their neighborhood park was vindicated when a trial judge allowed the Arizona Department of Child Services to drop its lawsuit against her,” reports the Goldwater Institute.

Since starting at Reason in 2014, Brown has won multiple awards for her writing on the U.S. government’s war on sex. Brown’s writing has also appeared in The New York Times, Los Angeles Times, The Daily Beast, Buzzfeed, Playboy, Fox News, Politico, The Week, and numerous other publications. You can follow her on Twitter @ENBrown.

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