Opponents of Arkansas’s unconstitutional effort to ban gender-affirming medical care for transgender youth are asking a federal appeals court to deny the state’s effort to circumvent the usual review process.
The state, led by Attorney General Tim Griffin, is appealing a federal judge’s decision to strike down the ban, the first of its kind in the nation, passed by Arkansas lawmakers in 2021.
In July, Griffin appealed to the 8th U.S. Circuit Court of Appeals in St. Louis. Because the court often lets a three-judge panel first decide cases, Griffin asked earlier this month that the full court go ahead and hear this one to “avoid unnecessary delay.”
On Thursday, though, opponents of Arkansas’s attempt to block gender-affirming care for minors countered Griffin’s request. “That argument is hard to take seriously in light of Petitioners’ leisurely approach to litigating this case. The district court preliminarily enjoined Arkansas’s ban on gender-affirming medical care more than two years ago. At no point did Petitioners seek to stay the injunction or to expedite the appeal—on the contrary, they repeatedly requested extensions before the panel and the full Court. Petitioners sought yet another extension of the briefing schedule on the very same day that they filed their Petition. Simply put, that is not how a party behaves when it genuinely believes that ‘immediate en banc [full-court] review is warranted.'”
The American Civil Liberties Union of Arkansas, physicians and four transgender youths and their parents filed the lawsuit challenging the ban in May 2021 in U.S. District Court in Little Rock. Judge James Moody Jr. struck it down in June 2023. He noted the ban, which never took effect, violated more than one section of the U.S. Constitution and could cause irreparable harm to the affected children.
In Thursday’s filing, opponents of the ban argued that Griffin had neglected “to mention that one of [the defendants’] own experts, Dr. [Stephen] Levine, described the psychological impact of cutting off gender-affirming medical care for those currently receiving it as ‘shocking’ and ‘devastating.’ He also testified he would still consider writing letters of authorization for hormone therapy for minor patients and would expect providers in Arkansas to ‘find a way’ to help those patients if the State’s ‘[d]raconian’ ban goes into effect. … (“Dr. Levine does not support banning gender-affirming medical care for adolescents with gender dysphoria.”)
Levine, a clinical psychiatrist at Case Western Reserve University School of Medicine in Ohio, testified during the trial in Little Rock last year.
Attorneys opposing Arkansas’s attempted ban on transgender care for youth focused their filing on the need to follow normal procedure, especially in such a politically charged case.
“There is no doubt that this appeal is at the center of an active and important public debate,” they wrote. “But that is a reason to adhere to this Court’s traditional practices, not to abandon them. ‘Judicial orders warrant the utmost respect when they are perceived by the public to have been reached in the most regular and careful manner.’ … And public respect for the judicial process is never more important than when the courts are asked to pass on matters of great significance to the parties and the public at large.”
Griffin argues that the full court should hear the case now to “protect children.” Opposing attorney said, “That argument is inconsistent with Petitioners’ decision not to seek a stay or to expedite this appeal.”
The opponents noted that Congress has determined that three-judge panels should ordinarily hear federal appeals. “To Respondents’ knowledge, this Court has never granted a petition for initial hearing en banc, including where a party challenged binding circuit precedent,” ban opponents wrote.
“The practice in other circuits is similar, with courts routinely denying requests for initial hearing en banc, even in cases that are vitally important and time-sensitive,” they added. Referring to contrasting rules in two other circuits, the opponents noted, “No circuit has ever held that a conflict among the courts of appeals is a
reason to bypass the panel process.”
In concluding their argument, ban opponents wrote, “There is no doubt that the issues in this case are important, both to the public and to the individuals affected by Arkansas’s law. But federal appellate courts have long ‘respond[ed] to that circumstance in a calm, orderly, and deliberative fashion in accordance with the best traditions of the law.’ … This Court should follow that course here.”
