Medical care ruling: legally correct
In 2021, the Arkansas Legislature adopted Act 626. This law attempted to bar doctors from providing gender transition care to anyone under the age of 18 and referring any minor to another physician for the purposes of receiving such care.
Under the act, gender transition care includes surgical and non-surgical treatment (such as puberty blockers and hormones) designed to help a person live as a gender that does not correspond with the person’s biological sex.
On June 20 a federal judge struck down Act 626 for infringing rights protected by the U.S. Constitution. Judge Jay Moody concluded that the prohibition on gender-affirming care violates both the equal protection and due process clauses of the 14th Amendment. He also found that the ban on referrals violates the right to freedom of speech under the First Amendment.
Judge Moody’s ruling is correct under the law.
The plaintiffs and allied third parties appearing before the court presented an avalanche of evidence that gender transition care is safe, effective, medically justified, and competently delivered by licensed professionals. This included the testimony of five medical experts (one of whom is also a plaintiff) with extensive experience in administering gender-affirming care and/or in conducting research regarding the safety, efficacy, and ethics of such care.
Consider some of Judge Moody’s findings given the evidence:
A disjunction between one’s gender identity and biological sex—“gender dysphoria”—is an established mental health disorder according to the American Psychiatric Association; gender dysphoria often causes significant mental distress, including anxiety, depression, and elevated risk for suicide.
Numerous medical associations, including the Arkansas Chapter of the American Academy of Pediatrics, the American Academy of Child Adolescent Psychologists, and the Arkansas Psychological Association, recognize the safety and effectiveness of gender-affirming care for the treatment of gender dysphoria.
The World Professional Association for Transgender Health and the Endocrine Society have published clinical practice guidelines for transgender care that are recognized as best practices by the same medical associations noted in the prior bullet point. Moreover, transgender care is no longer “experimental.”
Adolescents are generally able to understand the benefits and risks of gender-affirming care, and no such care is provided without their informed consent and consent of their parents or guardians.
Under the practice guidelines, adolescents suffering from gender dysphoria undergo a comprehensive mental health assessment and psychotherapy before receiving puberty blockers or hormone therapy.
Puberty blockers and hormones used in hormone therapy are also administered to treat conditions other than gender dysphoria.
Gender-transition surgery is extremely rare for minors, and virtually all such surgeries are chest surgeries for transgender males—also sometimes medically indicated for cisgender males.
Under the practice guidelines, minors who have not reached puberty are only provided support and counseling; drug, hormone, and surgical treatments are not used.
Delaying gender-affirming care for adolescents until the age of 18 results in their bodies going through irreversible changes inconsistent with their gender identity.
Decades of clinical experience, 16 scientific studies on adolescents, and many more studies concerning adults show that gender transition care is safe and effective at addressing gender dysphoria, frequently resulting in critical improvements in mental health.
The psychological and physical risks from gender-affirming care are substantially the same as—and often lower than—the risks associated with many other medical treatments regularly provided to adolescents and children.
The quality of scientific evidence supporting gender-affirming care is “comparable to the quality of evidence supporting many other medical treatments minors and their families may pursue.”
By contrast, the evidence submitted by the state of Arkansas in defense of Act 626 was strikingly weak. Of the state’s four expert witnesses, three have no experience treating gender dysphoria.
The first is a sociologist who provided no evidence to support his criticisms of the medical societies that approve of gender transition care.
The second is a doctor who is board-certified in surgery and plastic surgery. In addition, he acknowledged that his opinions regarding gender dysphoria are inconsistent with the perspective of the American Society of Plastic Surgeons.
The third is a pediatric endocrinologist. He never treated gender dysphoria patients.
Judge Moody ruled that these three witnesses “were unqualified to offer relevant expert testimony and offered unreliable testimony. Their opinions regarding gender-affirming medical care for adolescents are grounded in ideology rather than science.”
The state’s fourth expert, Dr. Stephen Levine, does have experience treating gender dysphoria patients. But he admitted on the stand that whether hormone therapy is appropriate for an adolescent should be left to the patient, the patient’s guardians, and the treating physicians.
Moreover, while Dr. Levine testified he believes that some doctors provide hormone treatment without first conducting appropriate mental health examinations, he offered no evidence to support this conclusion, and “conceded that he has no knowledge of how most gender clinics provide care,” including those in Arkansas.
Given this disparity in evidence, Judge Moody’s constitutional conclusions are firmly supported:
■ Act 626 bars minors of one sex from receiving medical care (such as hormone treatment) that minors of the other sex are free to obtain. That is a form of sex discrimination.
Such discrimination violates the equal protection clause unless the government can establish that Act 626 is substantially related to a sufficiently important government interest.
The state claimed that Act 626 serves the interest of protecting children from experimental medical treatment. That is an important interest. But Arkansas presented virtually no evidence that Act 626 is substantially related to that interest.
The state offered no valid evidence that gender-affirming care is ineffective or experimental, no evidence that the risks of such care are greater than for other types of treatment, and no reliable evidence that doctors in Arkansas are failing to comply with the practice standards for treatment of gender dysphoria.
Act 626 thus clearly violates the equal protection clause.
■ The due process clause protects the right of parents to seek medical care for their children and determine whether a given treatment is necessary. To override this right, Act 626 must satisfy a higher burden than it does under the equal protection clause. Accordingly, the statute also plainly violates the due process clause.
■ The ban on providing referrals to patients limits the speech of treating physicians in this state, which is incompatible with the First Amendment.
I was surprised by how weak the state’s arguments were in the litigation. But I do not fault Arkansas’ lawyers; they are exceptional professionals. The problem is that there is basically no medical evidence supporting the position they asserted in court.
The state’s three experts with no relevant professional experience were recruited by the Alliance Defending Freedom (ADF) at a national seminar held to gather expert witnesses willing to testify in favor of laws restricting transgender care.
ADF is one of the country’s leading conservative legal advocacy groups. If these witnesses (and Dr. Levine) are the best they could find after a national search, the evidence justifying limits on transgender care must be very weak indeed.