Arkansas Trans-Care Ban for Minors Reaches Full Eighth Circuit

Arkansas’ defense of its first-in-the-nation ban on minors’ treatments for gender dysphoria met a mostly quiet Eighth Circuit on Thursday, with questions about the constitutional scrutiny that applies to the law.

The state’s Save Adolescents From Experimentation Act is a proper exercise of the state’s regulatory authority to protect minors from the risks of gender-transition treatment, and it doesn’t violate the equal-protection rights of minors or the due-process rights of their parents, Dylan Jacobs, Arkansas’ deputy solicitor general, told the full US Court of Appeals for the Eighth Circuit.

The state’s ban applies to puberty blockers, cross-sex hormones, and surgeries to treat gender dysphoria. The lawsuit is one of several high-profile cases currently testing the rights of transgender minors to access medical care for gender dysphoria.

The Eighth Circuit is the first federal appeals court to delve into the merits of questions presented by 24 virtually identical state laws enacted between 2021 and 2024.

It’s also the first case to be presented to a federal appeals court after a full trial in which both parties presented evidence, and the first in which an en banc court—all the circuit’s active judges—is hearing the appeal, skipping the usual three-judge panel hearing.

A three-judge panel of the Eight Circuit did earlier affirm the lower court’s preliminary injunction blocking enforcement of the SAFE Act in August 2022.

Judge Jane Kelly wrote that affirmance and led the court Thursday in questioning the attorneys, probing Arkansas’ attorney on what level of judicial scrutiny should be applied to the case. Most of the other 10 judges were quiet.

Sex Classification

The lower court ruled that the Arkansas law classifies individuals on the basis of both sex and transgender status, making it subject to a heightened-scrutiny standard and requiring the state to show the law was substantially related to an important governmental interest.

Jacobs said the court should instead follow recent decisions of the Sixth Circuit and the Eleventh Circuit holding that laws similar to the SAFE Act didn’t discriminate based on sex.

This was because the laws restrict procedures that are prescribed for a single sex only, and therefore fall outside what is considered sex classification under equal-protection doctrine, he said.

Kelly dug into that position, asking whether it was true that doctors have to know a child’s biological sex before they can prescribe a treatment implicated by the statute.

Jacobs replied that knowledge of the patient’s sex alone wasn’t enough to determine whether a treatment was prohibited by the act, meaning that the patient’s sex wasn’t the “but for” cause of the classification.

The key issue was whether a treatment was to be prescribed for gender transition, he said.

“But doesn’t that go to whether that’s substantially connected to a governmental interest rather than whether or not it’s a sex classification?” Kelly asked.

Jacobs replied that it was “a little of both,” but that, under recent Supreme Court rulings, regulation of a medical procedure that applies to one sex only, such as prohibiting the use of testosterone in girls as part of a gender transition, doesn’t draw a sex classification, and doesn’t trigger heightened scrutiny.

Plain Text

Chase Strangio, an attorney for the American Civil Liberties Union who represents the transgender children and their parents challenging the law, said the plain text of the law showed it made its treatment prohibitions dependent on whether a treatment is deemed typical of the patient’s birth sex.

The Supreme Court has held that heightened scrutiny is warranted when the government engages in line drawing based on what is typically male and typically female, he said.

“The purpose of heightened scrutiny is to ensure that over broad generalizations about how most men and women are, aren’t used to discriminate against those that fall outside the average description,” he said.

Barbara Schwabauer of the Department of Justice, arguing in support of the transgender children, took aim at the state’s argument that physical differences and between the sexes and “biological reality” play no role in sex-based classification.

“An asserted reliance on these kinds of differences is exactly what intermediate scrutiny was made to test,” she said.

Weighing Risks

Strangio emphasized the significance of the district court’s findings of fact concerning the risks to minors of transgender procedures.

The record before the court showed that the risks of this treatment weren’t categorically different than risks for many other forms of pediatric medicine that parents routinely consent to on behalf of their children, and that few people who undergo a gender transition come to regret it, he said.

Jacobs countered that the district court imposed an unprecedented burden of proof and standard of review on the state in holding that it needed to show that the risks of gender-transition procedures to minors “substantially outweighed” the benefits.

“A ‘substantially-outweighed’ standard is not something the court will find anywhere in the Supreme Court’s equal-protection case law,” he said.

Kelly pressed Jacobs on the question of how much deference the lower court should have shown to the legislature on the issue.

The district court made a “broad range of fact findings” to support its conclusion that the risks of the procedures didn’t outweigh the benefits, Kelly said. “That series of facts is still before us and is unchallenged, correct?” she asked.

Jacobs replied that the district court took it upon itself to weigh the medical evidence, which “was not a proper application of intermediate scrutiny,” he said.

“And so you’re saying the court was not to make its conclusion about which medical experts were credible and which were not?” Kelly asked.

The state’s position is that in areas where the states ordinarily have wide-ranging authority to regulate, such as health, safety, and medicine, “it is not for a district court to effectively impose its own policy judgment,” he said.

Age Cutoff

Judge David R. Stras asked Jacobs if the legislature had provided a justification of the statute’s age cutoff of 18 years.

“There’s a line of Supreme Court precedent under the Eighth Amendment that says adolescents under the age of 18 don’t have fully formed brains and can’t necessarily make the same decisions that adults can,” he said. “I’m wondering whether any of those types of justifications are in the Arkansas law.”

The legislature was focused on the possibility that minors who received the treatments might change their minds, he said. “Setting the age of 18 at least implies that below 18 there’s a greater risk of that occurring,” he said.

Strangio responded that the district court found it was rare for adolescents to change their understanding of their gender identity after puberty, which is also the point at which the gender treatments at issue in the case begin to be administered.

Speaking hypothetically, Stras asked him whether the analysis would be different if the record showed that 50 percent of those who underwent a gender transition later decided to revert to their gender at birth.

Strangio said that state would have an easier time if the record were different—but he said the record showed that cases of regret were extremely rare.

Sullivan & Cromwell LLP, Gill Ragon Owen PA, and Bullock Ward Mason LLC also represent the transgender children and parents.

The case is Brandt v. Griffin, 8th Cir., No. 21-02875, oral argument 4/11/24.