Court to review trans health care law
The full panel of judges from the 8th U.S. Circuit Court of Appeals, at the request of state Attorney General Tim Griffin, have agreed to review an Arkansas law banning transgender health care for minors that was overturned earlier this year in a district court, a Friday court order states.
The court granted Griffin’s petition, made last month, and will conduct a review of the June 20 ruling by U.S. District Judge James M. Moody Jr. that struck down Act 626 of 2021. Moody ruled that the ban violated the U.S. Constitution’s Equal Protection and Due Process clauses as well as the First Amendment.
Act 626, had it gone into effect, would have barred physicians from providing transgender youth with health care related to the medically recognized condition known as “gender dysphoria” or referring them for that care.
Gender dysphoria is defined by the Mayo Clinic in Rochester, Minn., as the feeling of discomfort or distress that might occur in people whose gender identity differs from their sex assigned at birth or sex-related physical characteristics.
It also would have outlawed for juveniles the use of hormones and puberty-blocking drugs, gender-affirming surgical procedures and insurance coverage of gender-affirmation treatment, as well as stripping any requirement for insurance providers to cover gender-affirmation procedures for people of any age.
Griffin referred to these procedures as “dangerous medical experimentation” in a Friday news release celebrating the appeals court’s acceptance of his petition, which he called “a historic move.” In the release, he referred to the overturned law as the SAFE Act, which stands for Save Adolescents from Experimentation.
“Two other federal courts of appeal have already allowed similar laws protecting children from experimental gender-transition procedures in Tennessee, Kentucky and Alabama to go into effect,” Griffin wrote in the release.
Griffin’s petition, which came after members of the 8th Circuit in 2021 upheld a temporary injunction of the law from Moody, asked the judges to weigh the law by a different, more lenient standard.
In deciding cases under the U.S. Constitution’s Equal Protection Clause, the U.S. Supreme Court has developed a three-tiered approach to analysis of such questions: strict scrutiny, intermediate scrutiny and rational basis. Under strict scrutiny, the most stringent standard, the government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest. Intermediate scrutiny requires that the government show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest. Rational basis, the lowest standard of scrutiny, requires that the government need only show that the challenged classification is rationally related to serving a legitimate state interest.
The panel of 8th Circuit judges in 2021 appraised the law using intermediate scrutiny, which Griffin said was wrong for regulating pediatric medical processes. His petition asked them to now apply only a rational-basis review.
Griffin’s argument in the petition centers on the potential for regret associated with gender-transition and gender-affirming processes later in life.
“Many children ‘later come to regret’ those procedures and ‘identify with their’ biological sex rather than their perceived gender identity,” Griffin wrote in the petition, adding that, “regret ‘can happen with individuals who medically transitioned as adolescents or as adults’ and ‘is common in medicine.’”
A 2021 evaluation of 27 studies involving almost 8,000 teens and adults who had gender-affirming surgeries, mostly in Europe, the U.S and Canada, found that 1% on average expressed regret. For some, regret was temporary, but a small number went on to have detransitioning or reversal surgeries, the review said.
A Republican super-majority in the House and Senate passed Act 626 in 2021, overturning a veto from then-Gov. Asa Hutchinson, who said the law went too far by denying care to those already receiving treatment, according to the Arkansas Senate’s website.
At the time Griffin filed his petition, Holly Dickson, executive director of the American Civil Liberties Union of Arkansas, expressed confidence that the appeals court would uphold Moody’s decision, no matter the standard applied.