SAFE Act challenge keys on emails

LITTLE ROCK — Attorneys for the American Civil Liberties Union of Arkansas and the office of Attorney General Leslie Rutledge squared off Tuesday before U. S. District Judge James M. Moody Jr. as the ACLU sought to force the release of documents it says are discoverable under federal rules of civil procedure.

In early April of last year, the General Assembly passed the Save Adolescents From Experimentation Act by a vote of 72-25 in the House and 25-8 in the Senate, overriding a veto by Gov. Asa Hutchinson, who described it as a legislative overreach into the relationship between doctors, patients and their families.

Although the law purports to prevent medical experimentation on minors, medical experts in gender-diverse health care say the treatments banned by the law have been used successfully for decades. In addition to hormone therapies and puberty blockers, the law bans gender-affirming surgical procedures that were not performed in the state prior to passage of the law.

Last May, four families of transgender youths in Arkansas and two doctors filed a challenge to the new law seeking to block its implementation on the grounds that it violates the equal protection clause of the U.S. Constitution.

Arguing on behalf of the ACLU, Daniel Richardson of Washington, D.C., said as part of that lawsuit, attorneys for the plaintiffs first asked for documents relevant to the SAFE Act some five months ago.

“Our case challenges the SAFE Act on the grounds that it violates the rights of transgender people,” Richardson said. “To support that claim

we’ve sought papers related to the SAFE Act itself, transgender people, gender dysphoria, and gender transition procedures.”

The main issue, Richardson said, is whether the requested documents provide relevant information to support the claim of the plaintiffs. The problem, he said, is the attorney general’s office has withheld numerous emails sent or received by Rutledge that her office claims are irrelevant to the plaintiffs’ claim that the law violates their right to equal protection under the law.

“We think that’s wrong on the law, but more importantly, that claim has already been waived here,” he said. “The defendants did not assert that objection when they responded to our request in November. … There’s no basis for arguing that her records are completely off-limits in this case.”

Dylan Jacobs, who serves as deputy solicitor general in the attorney general’s office, maintained that Rutledge’s emails are irrelevant to the case because she did not draft the bill and did not lobby for its passage.

Among those emails, which number approximately 4,500 according to court documents, were several relating to the drafting and passage of the GIRLS Act, a bill to prohibit transgender girls from participating in girls sporting events, which Rutledge assisted in drafting and lobbied for its passage. Jacobs said those documents were excluded from discovery by the attorney general’s office on the grounds they were irrelevant.

“The plaintiffs sought discovery of emails pertaining to the SAFE Act and they got it,” Jacobs said.

Jacobs said the GIRLS Act is a separate issue dealing with a long history of discrimination that has existed in women’s sports and not relevant to the plaintiffs’ claims.

“So that has nothing to do with the transgender issue at all,” Moody said. “I just want to be clear as to the position you’re taking, because I’m familiar with both laws. If you’re saying it doesn’t apply to transgender people at all, or that it’s not intended to prevent transgender people from being involved in girls’ sports or otherwise, then we can move on and I’ll take your word for it, for what it’s worth. But if you’re telling me it’s not a transgender law at all, I need to make sure that’s what I’m hearing you say.”

“Our position is not that the GIRLS Act doesn’t relate to transgender persons at all…” Jacobs began.

“So my question is,” Moody continued, “any emails you have regarding transgender persons in the GIRLS Act, why would that not be relevant?”

After nearly an hour of back and forth arguments between Richardson and Jacobs, Moody said he would take the matter under advisement and will issue a ruling in the near future.

“I’ll try to get something for you quickly,” he told the attorneys. “I can’t be any more specific than that.”

“Our position is not that the GIRLS Act doesn’t relate to transgender persons at all ...”

—Dylan Jacobs, deputy solicitor general in attorney general’s office