ANALYSIS: Arkansas Gender Care Ruling Puts Other Bans on Notice

A nationwide patchwork of gender-affirming care laws is creating thorny legal issues as courts grapple with how far states can go to ban certain health-care practices for transgender youth. But details found in the court cases—and especially in a recent ruling striking down Arkansas’s law—are shedding light on which types of challenges may find success in blocking the statutes.

As of June 26, laws or policies banning gender-affirming care for minors are in place in 17 US states, according to data gathered by Bloomberg Law. Many prohibit only certain types of care, and exceptions in the laws vary greatly from state to state.

The fractured legal landscape is creating confusion for health-care professionals and their lawyers, making it difficult to know what type of treatment they can and can’t legally offer. But the picture has cleared somewhat since last week, when Arkansas became the first state to have its law fully invalidated by a federal court.

In Brandt v. Rutledge, an Eastern District of Arkansas judge favored the plaintiffs’ arguments on two main aspects of the state’s law: what types of treatment it banned, and who stood to be negatively impacted by its restrictions.

Brandt is a decision that could impact future court decisions where laws banning gender-affirming care are challenged.

Arkansas Roadmap

In Brandt, the plaintiffs successfully challenged the parts of Arkansas’s law that prohibited surgical procedures in addition to other, more common types of gender-affirming care, such as hormone therapy and puberty blockers.

In the text of the statute, the Arkansas legislature asserted the state “has a compelling government interest in protecting the health and safety of its citizens, especially vulnerable children,” claiming that hormone therapy and puberty blockers are being used despite lack of medical testing and that the use of surgical procedures is on the rise.

However, in his opinion, Judge James M. Moody Jr. found that Arkansas had not met its burden to show that the benefits of gender-affirming care are outweighed by the risks. Evidence presented in the case demonstrated both the medical efficacy of hormone therapy and puberty blockers for minors, and that providers are taking measures to ensure that the treatments are right for an individual child, he said.

Additionally, Moody observed that the state’s main provider of gender-affirming care to minors doesn’t provide surgery. He noted that surgery to treat minors is rare and, when it is used, multiple factors are already considered and met before the surgery can happen.

Moody ruled that the law violates the US Constitution in several ways, in particular the Equal Protection Clause of the Fourteenth Amendment. Arkansas’s ban “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,” he said.

The Arkansas ban is discriminatory to transgender people because it “prohibits medical care that only transgender people choose to undergo,” Moody further held. He cited the US Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that workplace discrimination on the basis of gender identity counts as sex discrimination under Title VII of the Civil Rights Act.

Drawing from these points in Brandt, two emerging issues appear poised to play a significant role in the outcome of current and future court challenges: whether certain types of gender-affirming care are safe and effective to treat minors; and whether a ban on such care raises a constitutional equal protection issue.

Types of Treatment

Most of the state laws currently in place primarily target puberty blockers, hormone therapy, and gender-affirming surgeries. However, many of the lawsuits challenging these bans have focused only on the provisions about puberty blockers and hormone therapy, and several of these actions have led to temporary injunctions.

Alabama’s law, for example, restricts use of puberty blockers, hormone therapy, and numerous gender-affirming surgeries for minors.

A federal court issued a partial injunction, granting plaintiffs’ request to allow the use of puberty blockers and hormone therapies to continue until a court determines the law’s validity. That decision is on appeal in the Eleventh Circuit.

The Alabama case differs from Arkansas because the plaintiffs challenged the law’s ban on hormone therapy and puberty blockers, but not surgeries.

This paints an important contrast for plaintiffs considering whether all types of care should be challenged. Surgical procedures are exceedingly rare for minors, and the ruling in Brandt stressed the point that the court was less concerned about surgeries—both because of their rarity of use and because of the high level of protections around considering such an option for a minor—than about the more common treatments. But Brandt also demonstrated that plaintiffs can successfully challenge restrictions on all types of gender-affirming treatment.

Equal Protection

Much of the analysis in the Arkansas ruling is based upon constitutional claims—particularly, under the Equal Protection Clause. Plaintiffs in some states are finding success by focusing on this issue, leaning on similar reasoning to the equal protection issues found by the Supreme Court in Bostock.

For example, a federal judge in Florida issued an injunction against the state’s law, concluding that plaintiffs could likely succeed on an equal protection claim. “The state and rules at issue were motivated in substantial part by the plainly illegitimate purposes of disapproving transgender status and discouraging individuals from pursuing their honest gender identities,” the judge said.

The Arkansas decision highlights what a state would need to do to to overcome an equal protection claim in court. A law that discriminates on the basis of sex must have “exceedingly persuasive justification"—the government would have to show that “the statute is substantially related to a sufficiently important government interest,” the decision said, quoting the Supreme Court’s 1996 decision in US v. Virginia striking down a military institute’s male-only admission policy.

Arkansas failed to meet this burden, and as bans in many other state laws are similar to Arkansas’s, states likely will have to consider how to overcome the exceedingly persuasive justification burden if they are to overcome challenges in court.

The exemptions built into some state laws can also trigger equal protection claims. Most of these laws have exceptions that treat transgender youth differently than cisgender youth, and these exceptions could be interpreted as protections specifically intended for the latter group.

For example, challengers of Kentucky’s law argue that it will stop health-care providers from “providing medically necessary treatments to transgender adolescents...while allowing them to provide the same treatments to non-transgender adolescents.” This is referring to the exception Kentucky has in its ban for a “minor diagnosed with a disorder of sexual development.”

New court challenges will likely highlight that disparity, given that many states (Alabama’s, for one) have similar exceptions for minors with “sexual development disorders.”

Gender Dysphoria

Looking forward, a key determining factor in the vulnerability of a state law could be how it deals with gender dysphoria. According to the Mayo Clinic, gender dysphoria is “the feeling of discomfort or distress that might occur in people whose gender identity differs from their sex assigned at birth or sex-related physical characteristics.” This differs from a sexual development disorder which is a term for conditions that causes problems with development of genitalia and reproductive organs.

Although Arkansas’s ban on gender-affirming surgery was invalidated in Brandt, plaintiffs ultimately may be more successful by sticking to challenging bans on puberty blockers and hormone therapy. Unlike surgery, puberty blockers and hormone therapy are drug-based treatments that are completely or partially reversible. But what appears to be swaying some courts is the fact that the treatments are well-established for treating minors with gender dysphoria.

Judges in both Alabama and Florida found that plaintiffs were likely to succeed on presented claims based on evidence that the drugs in question are widely accepted as successful medical treatments. As the court said in the Alabama opinion, “at least twenty-two major medical associations in the United States endorse these medications as well-established, evidence-based methods for treating gender dysphoria in minors.”

An additional factor that likely played into the injunctions against the Alabama, Florida, and Kentucky laws is their lack of explicit exceptions for minors who have gender dysphoria. Meanwhile, West Virginia’s law banning gender-affirming care ban does have such an exception—and it has so far avoided a court challenge.

Like other states, West Virginia—whose law is set to take effect Jan. 1, 2024—has exceptions for minors with sex development disorders. Its law also allows for “pubertal modulating and hormonal therapy for severe gender dysphoria” for minors under certain circumstances.

This exception stands out because it exempts the types of gender-affirming care that the plaintiffs in other court actions are seeking to continue to be allowed. A plaintiff challenging such a ban might have a harder time being successful on an equal protection claim because the law shows, to some degree, legislators considered the protection of transgender minors under the law. As a result, states trying to pass bans may look to West Virginia’s exception as a way to avoid court challenges.

Government Interest

Another vulnerability issue for states is that they likely will have to show their law is substantially related to a sufficiently important government interest.

In Brandt, Arkansas argued that the important governmental interest was “protecting children from experimental medical treatment and safeguarding medical ethics.” But the court held that Arkansas actually was harming the children it was aiming to protect through its law, and added that evidence Arkansas brought did not relate to why gender-affirming medical care “is singled out for prohibition.”

Many states banning gender-affirming care for minors are providing similar reasoning for their actions. If future cases follow the Arkansas example, other states may also have a difficult time overcoming the challenges.

Bloomberg Law subscribers can find related content on our newly updated In Focus: Gender Identity Discrimination page.

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