Trans Kids’ Care Ban Faces Key Test on Path to Supreme Court

The constitutionality of Arkansas’ first-in-the-nation gender-affirming care ban will be argued Thursday, in a case that’s been fast-tracked by a federal appeals court made up of all but one Republican-appointed judge.

The Eighth Circuit will be the first federal appeals court to delve into the merits of questions presented by 24 virtually identical state laws enacted between 2021 and 2024. Unlike multiple courts that have ruled on preliminary matters, the Eighth Circuit will have a fully developed evidentiary record to use.

That may make it a good vehicle for US Supreme Court review. The justices currently are considering three petitions in a Sixth Circuit case, but they seek review of decisions regarding preliminary injunctions.

The justices have already delayed ruling on those requests several times, which may indicate their interest in the questions presented. But they’ve been “kicking the can down the road” for a while now on LGBTQ+ rights, according to Sarah Parshall Perry, a senior legal fellow at the conservative Heritage Foundation in Washington.

The US Court of Appeals for the Eighth Circuit case may prompt them to take action.

‘Real-World’ Consequences

Arkansas’ provision prohibits doctors from treating gender dysphoria in people under 18 using puberty-blocking drugs, cross-sex hormones, or surgery. It also precludes doctors from counseling or referring patients for such treatments.

It presents important issues of constitutional law, but it also has “real-world” consequences, Jennifer Levi, Senior Director of Transgender and Queer Rights at GLBTQ Legal Advocates & Defenders in Boston, said. GLAD filed a friend of the court brief supporting the plaintiffs.

These “aren’t abstract issues,” Leslie Cooper, deputy director of the ACLU LGBT & HIV Project in New York, said. The law “takes away care youths depend on for their well-being,” she said. Cooper is part of the ACLU team representing the plaintiffs.

But the law’s proponents, like Jonathan Scruggs of the conservative law firm Alliance Defending Freedom, say it protects children from “life-long and irreversible harm.”

Scruggs is senior counsel and vice president of litigation strategy at the firm, which is helping Alabama and Idaho defend similar gender-affirming care bans.

There’s “no good evidence” for using these “irreversible” interventions, Jennifer Bauwens, director of the Center for Family Studies at the Family Research Council in Washington added. The council filed a friend of the court brief supporting Arkansas.

Levi disputes that claim. The law bans “well-established medical care, recognized” by every major US medical professional group “as effective to treat serious medical conditions,” she said.

“There’s no principled reason to criminalize trans health care” for adolescents, Levi said.

Constitutional Concerns

The plaintiffs raised three constitutional issues: whether the Arkansas law violates the youths’ equal protection rights, their parents’ 14th Amendment due process right to direct their childrens’ medical care, and a doctor’s First Amendment free speech right to refer her patients for the banned gender-affirming treatments.

From a legal standpoint, the equal protection issue is probably the most noteworthy, Katie Eyer, who studies and writes about LGBTQ+ legal issues and constitutional law, said. Eyer is a professor at Rutgers Law School in Camden, N.J.

Arkansas’ law discriminates on its face by treating people differently based on their sex, Eyer said. Who gets the care depends on their sex at birth, she said. For example, it’s entirely legal under the law for a minor assigned female at birth to receive estrogen or even breast enhancement surgery—even for cosmetic reasons. By contrast, a minor assigned male at birth cannot receive the exact same care, even if their doctor deems it medically necessary, she said.

In order to be valid, a facially sex-discriminatory law must satisfy a heightened level of review that requires a state to show that the provision substantially furthers an important governmental interest. The Sixth and Eleventh circuits, in considering appeals from lower court decisions enjoining gender-affirming care bans, got this part of the test wrong, Eyer said.

They relied on “equal application” reasoning—the same reasoning that underpinned segregation and “separate but equal”—to avoid finding sex discrimination, Eyer said. That’s “just clearly wrong under existing equal protection doctrine,” she said.

The law also discriminates on the basis of transgender status, and also probably should receive heightened equal protection review on this alternative basis, Eyer said. “Only transgender people seek this care, and that’s clearly the population the legislature intended to target here,” she stated.

“And as the District Court in this case properly concluded, discrimination against the transgender community should itself be considered constitutionally suspicious, given the long history of discrimination against” it, she said.

Parental & Speech Rights

The parental rights claim is a “powerful part” of the case, Levi said.

But Perry doesn’t think it will be particularly significant, even though the issue itself has the potential to become a “constitutional battle royale.”

Government interests have always taken precedence when children are endangered, Perry said, likening Arkansas’ care ban to child welfare laws. “No federal appeals court has ever held that there’s a constitutional right for parents to get experimental treatment for their children,” she said.

The plaintiffs’ strongest claim, in Perry’s opinion, is the doctor’s free speech argument.

It will be “hard for the state to overcome,” she said. It’s generally not a good idea to “muzzle” doctors, Perry said.

Unusual Procedure

The Eighth Circuit granted initial en banc review, which means that all its active judges will hear the arguments, instead of the usual three-judge panel. That’s “notoriously hard to get,” Perry said.

The court’s decision that likely suggests that the judges understand the “great significance of the legal issues, the harms children are facing, and the need to resolve this case quickly,” Scruggs said.

Eyer played down the significance of that procedural posture, but Cooper noted that it means the Eighth Circuit won’t be bound by anything decided by a three-judge panel that affirmed an earlier preliminary injunction in the case in 2022.

All but one of the Eighth Circuit’s active judges were appointed by Republican presidents, but Perry doesn’t think that will play a role in the decision. There are differing opinions on both sides of the issues, she said.

The appeal comes from a decision by Judge James M. Moody, of the US District Court for the District of Arkansas, who permanently blocked the state from enforcing the ban in June.

Sullivan & Cromwell, American Civil Liberties Union, Gill & Ragon, & Bullock & Ward represent the plaintiffs. The Arkansas Attorney General’s Office represents the state and its officials.

The case is Brandt v. Griffin, 8th Cir. en banc, No. 23-2681, oral arguments 4/11/24.