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Legal Fight Brews Over Ban on Medical Care for Transgender Kids

April 27, 2021, 4:07 PM

A legal fight is looming over Arkansas’s new law banning doctors and other health-care professionals from providing transgender minors with gender-affirming care.

The law threatens to discipline and potentially revoke the licenses of doctors who flout it. It also bars state and local funds from going to doctors who provide people under the age of 18 with gender-affirming care and allows private insurance companies to deny coverage for gender transition procedures, which is broadly defined to include prescription drugs like hormone treatments.

The American Civil Liberties Union has already vowed to challenge the legislation, which was vetoed by Gov. Asa Hutchinson (R) but overridden by the state Legislature earlier this month. If left standing, the law would limit the ability of transgender and non-binary youth to access health care in their state and might force families to uproot their lives to ensure their child can access appropriate health care, LGBTQ advocates say.

“I think a lot of parents can relate to doing anything for their children,” said Carl Charles, staff attorney at Lambda Legal, an LGBT civil rights organization. “It’s important that children be able to thrive and grow up in a safe way and in a way that allows them to thrive.”

The ACLU wouldn’t comment on what its legal challenge will look like, but Lambda Legal expects the civil rights group to argue the law is unconstitutional.

The claims are likely to be that it violates the Equal Protection Clause of the Constitution on the basis of transgender status and sex, as well as doctors’ First Amendment free speech rights, Charles said.

Equal Protection Clause

“Despite not ever mentioning transgender anywhere, it targets trans people,” he said.

The Equal Protection Clause of the Constitution requires states to treat individuals equally under the law. But Arkansas’s law bans providers from prescribing puberty blockers, which LGBTQ advocates say give children, parents, and their doctors more time to assess best treatment options.

Puberty blockers are used in all sorts of children who are experiencing precocious puberty, or puberty too soon, said Alexander Chen, founding director of Harvard Law School LGBTQ+ Advocacy Clinic.

“This law says it’s so bad for transgender kids to get puberty blockers that doctors have to lose their licenses for it, but it doesn’t say anything about the the use of puberty blockers for cisgender children to treat precocious puberty,” he said.

Cisgender people identify with the sex they had or were identified as having at birth.

Doctor Referrals

The law also bans providers from referring a transgender person under the age of 18 to a health-care professional for gender transition procedures. Doctor referrals could be characterized or described to the court as a type of speech that’s protected under the First Amendment, lawyers say.

“Physicians have a right to speak to their patients about medical care and similarly, transgender minors have a right to hear about that,” Charles said.

Lambda Legal isn’t bringing a legal challenge of its own but plans to support the ACLU in its work to challenge the bill in Arkansas and others like it pending in states such as Alabama, North Carolina, and Louisiana.

Protect Kids From ‘Experimentation’

Supporters of the law say it’s needed to protect children from unethical and experimental treatments.

“Gender-reassignment surgeries can leave children sterilized and scarred for life,” the Family Council, a
conservative education and research organization in Arkansas, said in a statement April 6. “Medical researchers do not know the long term effects these procedures and therapies can have on kids. That is why many people equate them with experimenting on children.”

Family Council President Jerry Cox declined to comment about the impending legal challenge when reached by Bloomberg Law. Cox said he’s directing all media questions to state Rep. Robin Lundstrum (R), who supported the legislation in the House. Lundstrum didn’t respond to a request for comment.

Vernadette Broyles, president and general counsel at the Child & Parental Rights Campaign, said, “This law is needed to protect trans-identified vulnerable children from what is essentially unethical experimentation on their developing bodies. For that reason I feel quite confident it will be upheld in court.”

Child & Parental Rights Campaign describes itself as a non-partisan, nonprofit public interest law firm that works to defend child and parental rights. The campaign will do everything in its power to help the Arkansas attorney general defend the Arkansas law, Broyles said.

When Hutchinson announced he vetoed the bill April 5, he said gender reassignment surgery isn’t performed on anyone under age 18 in the state. If the bill had simply prohibited those procedures from being performed on minors, he would have signed it, he said.

“But the bill is over broad, extreme, and does not grandfather those young people who are currently under hormone treatment,” he said during a press conference.

“If House Bill 1570 becomes law then we are creating new standards of legislative interference with physicians and parents as they deal with some of the most complex and sensitive matters involving young people,” he said.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Brent Bierman at bbierman@bloomberglaw.com

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