Arkansas’s ban on gender-affirming medical care for transgender youth that was slated to go into effect next week won’t, per a ruling Wednesday by U.S. District Judge James Moody.
Moody’s decision came after a roughly 2-hour hearing at the federal courthouse in Little Rock, where ACLU attorney Chase Strangio successfully argued for an injunction to keep the ban from going into effect as the lawsuit challenging its constitutionality makes its way through the courts. Strangio was arguing on behalf of four transgender Arkansas youth, their families and two doctors advocating for their continued access to gender-affirming care.
“Today feels like a really important, really historic day,” Strangio said after the hearing during a jubilant press conference that included the young trans people suing for their right to care, along with their families, doctors and advocates of transgender rights. Still, Strangio acknowledged the fight to protect access to medical and other rights for transgender people in Arkansas will likely be a long one.
“This victory belongs to Dylan, Brooke, Sabrina and Parker [young plaintiffs in the suit], as well as other trans youth in Arkansas who spoke up about the harms created by this law,” Strangio said. “Our work in Arkansas and around the country is far from over — including with this law.”
Still, plaintiff Dylan Brandt said Wednesday’s ruling is a clear victory and a loud message. “We want other trans kids to know you’re not alone. We have your back,” he said. “Gender-affirming care is lifesaving care for me, and for others.”
Dylan Brandt’s mother, Joanna Brandt, offered fierce and scathing words for the legislators who voted in favor of House Bill 1570. “Legislators have ignored medical professionals and parents,” she said. “The sole purpose is to discriminate and punish trans kids for existing. The fight isn’t over, but today is a good day.”
Moody had no questions as he listened to Strangio lay out the case for maintaining young people’s access to therapies that help stave off puberty or achieve physical characteristics consistent with their gender identity. Brooke Dennis, 9, one of the plaintiffs, has known she was a girl since she was 2, Strangio said. She hopes to embark on gender-affirming treatment soon to prevent the development of male physical characteristics but won’t be able to if House Bill 1570 goes into law, Strangio said, and that would cause immediate and irreparable harm.
Strangio argued the law is both discriminatory and a violation of First Amendment rights, since it would ban doctors not only from providing gender-affirming care but also from referring patients to out-of-state doctors who could.
Strangio discounted the state’s position that allowing young transgender people to access gender-affirming care is uniquely experimental or not backed by science. Risk is inherent with every medication, every medical treatment, he said, but only gender-affirming therapy is being banned by law. “In every other situation, doctors, patients and their parents can weigh those risks,” he said.
Moody had lots of questions for Vincent Wagner, the attorney for Arkansas charged with defending the ban on gender-affirming care for transgender youth. Wagner argued both against a temporary injunction that would prevent the law from going into effect July 28 with all the other new laws passed during the 2021 session and for throwing the plaintiffs’ legal challenge of the new law out completely (Moody did not dismiss the suit).
Chief among Wagner’s arguments: There’s no scientifically valid evidence that treating gender dysphoria in young people leads to longterm benefits, the treatment can cause permanent destruction of breast tissue and fertility, and that spiking the ban would seriously undermine the state’s ability to regulate medical care.
Moody pushed back on Wagner’s argument that hormone therapy for transgender youth is experimental and an off-label use, and therefore shouldn’t be allowed. “So all off-label drugs given to children should be banned?” Moody asked.
Moody also didn’t seem to buy Wagner’s repeated invocations to protect children’s future fertility, which could be compromised with gender-affirming treatments. Chemotherapy can also threaten children’s future fertility, Moody said. “How do you justify the chemo but not this treatment?” Moody asked Wagner. “I can’t understand the state’s interest in one particular treatment and not the other.”
Nor did Moody seem to agree with Wagner’s perspective that the ban doesn’t discriminate on the basis of sex.
“Boy wants testerone. Girl wants testosterone. Boy can have it, girl can’t. Why? It’s the same treatment,” Moody said.
Moody recessed for 30 minutes before issuing his decision from the bench. The move was unusual, since federal judges rarely act so quickly; usually they issue their decisions later, and in written form. Moody said he had been studying court documents and other evidence regarding this case for more than a month so that he could be prepared to make a fast decision, knowing that the law was slated to go into effect a week after the hearing.
Wagner and other attorneys from the A.G.’s office didn’t offer any public statements after the ruling, but Leslie Rutledge sent out her statement in short order:
“This evidence based law was created because we cannot allow children as young as 9 years old to receive experimental procedures that have irreversible, physical consequences,” said Attorney General Rutledge. “I will aggressively defend Arkansas’s law which strongly limits permanent, life-altering sex changes to adolescents. I will not sit idly by while radical groups such as the ACLU use our children as pawns for their own social agenda. As the Attorney General of Arkansas, I will be appealing today’s decision.”
The next step will be a full hearing back in Moody’s court. No date has been set.
While this issue will likely be tied up in the courts for a good while to come, Dr. Michele Hutchison, an endocrinologist and a founder of the Gender Spectrum Clinic at Arkansas Children’s Hospital, said Wednesday’s injunction revived her faith in the system.
And Tien Estell with Intransitive told the young plaintiffs and other trans youth who came to the courthouse Wednesday that perhaps soon, transgender people won’t have to claw and sue to secure their rights.
“Hopefully, by the time you’re a trans person my age, you won’t have to come into the federal courthouse to prove your worth,” Estell said.