When Mo Banks heard that the Arkansas legislature had banned gender-affirming care for transgender youth, it felt like their body went into shock.
Banks’ then-13-year-old daughter Zara is trans and had benefited from such medical care, Banks says. After Zara began gender-affirming care, her mental health improved, her parents say, and she became more happy, confident, and social. So when the state legislature voted to ban gender-affirming care for minors in April 2021, “I went into, ‘what are we going to do to survive this’ mode,’” says Banks, who is non-binary.
The legality of that law is now the subject of a two-week federal trial beginning Monday in the U.S. District Court for the Eastern District of Arkansas. While laws limiting the rights of trans youth have proliferated around the country in recent years, this will be the first trial on the merits to challenge such a law passed in the last six years. The closely watched case—in which both sides argue they are acting in the best interest of children—has already received input from major medical organizations, LGBTQ advocacy groups, and the Biden Administration, and could determine the trajectory of challenges to similar policies going forward.
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Four families of trans youth and two doctors have sued the state, arguing the ban violates the Equal Protection Clause of the Fourteenth Amendment by discriminating on the basis of gender identity, violates the First Amendment by limiting the speech of medical providers, and undermines parents’ fundamental rights to make medical decisions for their children. They are represented by the American Civil Liberties Union (ACLU), The ACLU of Arkansas, and the law firms Sullivan & Cromwell LLP, Gill Ragon Owen, and the Walas Law Firm.
Arkansas maintains that the law, Act 626, is legal because the state has a unique responsibility to protect children from medical treatment that lawmakers believe is unsafe—even if the child’s parents and doctors disagree. The American Academy of Pediatrics, the Academic Pediatric Association, the American Medical Association, the American Pediatric Society, and other medical organizations oppose Arkansas’ position, and have filed a brief in the case stating that not only is gender-affirming care safe and supported by scientific evidence, but denying it to young people who need it could put them at risk of significant harm to their mental health.
In July 2021, the district court issued a preliminary injunction preventing the law from going into effect as litigation played out, and an appeals court affirmed that injunction in August 2022. Monday’s trial will now determine whether the law can go into effect.
Arkansas’s Act 626 was the first gender-affirming care ban in the country. But in the year and a half since it was enacted, similar policies have been introduced in at least 22 state legislatures. In February, Texas’ Republican Governor Greg Abbott directed the state’s Department of Family and Protective Services to investigate any parent who provides their trans child with gender-affirming care. In April, Alabama made providing gender-affirming care to minors a felony punishable up to 10 years in prison. In August, Florida banned Medicaid from covering gender-affirming care for patients of any age. These policies are part of a broader restriction of LGBTQ rights in state legislatures—according to a NBC News analysis, between January and March of 2022, lawmakers introduced roughly 240 anti-LGBTQ rights bills, about half of which specifically target trans people.
The Arkansas trial will not only determine whether trans and gender non-conforming youth in the state—around 1,800 teens, per estimates by the Williams Insitute at ULCA’s School of Law—can access gender-affirming medical care. The outcome may also have an important impact on other cases challenging similar policies across the country, says Katie Eyer, a professor of law at Rutgers Law School. Those who defend laws restricting gender-affirming care often argue they do not discriminate on the basis of transgender status or sex. If the Arkansas court finds otherwise, Eyer says, it could weaken that defense elsewhere in the country.
For the Banks family, waiting for the legal battle to play out has been excruciating. Even though the law has been blocked for over a year, Jasmine Banks, Zara’s mom, feels the legislature’s actions have already sent her family a message: “They don’t want parents to be able to make informed, medically safe decisions for their kids.”
What is gender-affirming care?
Gender-affirming care is a model of care that can include a range of social, psychological, behavioral, or medical interventions meant to support and affirm a person’s gender identity, according to the World Health Organization. The treatment can help support youth experiencing gender dysphoria, which the Mayo Clinic defines as a feeling of discomfort or distress that might occur when someone’s gender identity is inconsistent with the sex they were assigned at birth.
What such treatment looks like can vary and is often patient-specific. In young children, gender dysphoria can be treated with non-medical social and behavioral interventions, which might include changing a child’s name, pronouns, or clothing. Once puberty has begun, a young person experiencing gender dysphoria may also begin receiving gonadotropin-releasing hormone (GnRH) analogues—often known as “puberty blockers”—to pause the continued development of a puberty that is incongruent with their gender identity. When they get older, some adolescents may begin taking gender-affirming hormones. Minors rarely undergo surgical intervention, but some might decide to pursue “top surgery”—surgery to change the appearance of the chest—while they are still teenagers.
Arkansas’ Act 626, titled the “Save Adolescents from Experimentation (SAFE) Act,” bans doctors from providing “gender transition procedures” to anyone under age 18, including the prescription of puberty blockers, gender-affirming hormones, or surgical interventions. Similar medical intervention is not banned for other pediatric conditions, like the use of puberty blockers to treat central precocious puberty, which causes children to enter the developmental stage too early. The law also bans physicians or other healthcare professionals from referring minors to receive gender-affirming medical care elsewhere. The law says “Arkansas has a compelling government interest in protecting the health and safety of its citizens, especially vulnerable children,” and argues there isn’t strong enough evidence that gender-affirming care’s benefits outweigh its risks.
In a statement to TIME, Arkansas Attorney General Leslie Rutledge said that she is “wholeheartedly defending” the law, and noted that it does not prevent trans youth from receiving mental health counseling. Instead, Rutledge argues, the law is meant to protect children from making “life-altering, permanent decisions that they may desire to make as an underage child but could regret as an adult.”
Major medical organizations disagree that such care is either experimental or unsafe, and stress that it is provided to young people in consultation with a young person’s parents and doctors. Instead, they warn that denying trans and gender expansive youth access to gender-affirming care could be dangerous for a group already at risk for higher rates of depression and suicidal ideation. In their brief at the appellate level, the American Academy of Pediatrics, the American Medical Association, and other organizations argue that “empirical evidence indicates that gender-affirming care, including gender-affirming medical interventions, can alleviate clinically significant distress and lead to significant improvements in the mental health and overall well-being of adolescents with gender dysphoria.” Among several studies, the brief cites a 2019 study published in the Clinical Practice in Pediatric Psychology of 47 trans youth that found beginning gender-affirming hormones decreased suicidality by a statistically significant amount.
In their lawsuit, the ACLU argues that Act 626 violates the Equal Protection Clause of the 14th Amendment by singling out trans youth who are seeking the care for gender-affirming purposes, but allowing similar treatment to continue for their cisgender peers with different medical conditions. The suit also argues the law violates the First Amendment by prohibiting doctors from providing information to their patients and their patients’ families. Lastly, the suit claims that the law violates parents’ rights to determine the best medical care for their children in consultation with their children’s doctors. The Justice Department has filed a Statement of Interest in support of the plaintiffs, writing that Act 262 “specifically and discriminatorily denies transgender minors, and only transgender minors, the ability to receive medically necessary care based solely on their sex assigned at birth.”
The Banks family will be watching the trial closely. But they say that even if the policy is struck down, they no longer feel safe in their home state. They plan on moving out of Arkansas later this fall.
“There hasn’t been a day that’s gone by since the bill was introduced that I haven’t thought about the safety of my kid,” says Mo Banks. “These are things no parent should have to deal with.”
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