A federal appeals court, which includes all but one Republican-appointed judge, will hear arguments on Thursday regarding the validity of Arkansas’ first-in-the-nation gender-affirming care ban.
The Eighth Circuit will be the first federal appeals court to consider the qualities of questions raised by the nearly parallel state laws that were passed between 2021 and 2024. The Eighth Circuit may have a fully developed factual report to use, in contrast to other judges that have ruled on primary concerns.
It might be a good candidate for US Supreme Court critique because of this. The justices are now looking at three petitions in a Sixth Circuit case, but they want to examine earlier prohibitions.
Because the magistrates have already waited a long time before ruling on those calls, it may indicate that they are interested in the questions being asked. But they’ve been “kicking the can down the road” for a while then on LGBTQ+ right, according to Sarah Parshall Perry, a senior legal brother at the traditional Heritage Foundation in Washington.
They may be prompted to take action by the US Court of Appeals for the Eighth Circuit scenario.
‘Actual-World’ Consequences
Arkansas’ delivery prohibits doctors from treating gender anxiety in people under 18 using adolescence-blocking drugs, combination-sex hormones, or operation. Additionally, it forbids medics from referring people or counseling them for such treatments.
It presents critical issues of legal laws, but it also has “real-world” effects, Jennifer Levi, Senior Director of Transgender and Queer Rights at GLBTQ Legal Advocates & Defenders in Boston, said. A friend of the court brief was filed by GLAD to back the plaintiffs.
These “aren’t abstract issues”, Leslie Cooper, deputy director of the ACLU LGBT & HIV Project in New York, said. The law “takes away care youths depend on for their well-being”, she said. Cooper is a member of the ACLU team that defends the plaintiffs.
But the law’s proponents, like Jonathan Scruggs of the conservative law firm Alliance Defending Freedom, say it protects children from “life-long and irreversible harm”.
The firm, which assists Alabama and Idaho in defending similar gender-affirming care bans, employs Scruggs as senior counsel and vice president of litigation strategy.
There’s “no good evidence” for using these “irreversible” interventions, Jennifer Bauwens, director of the Center for Family Studies at the Family Research Council in Washington added. The council submitted a friend of the court brief in favor of Arkansas.
Levi disputes that claim. The law bans “well-established medical care, recognized” by every major US medical professional group” as effective to treat serious medical conditions”, she said.
“There’s no principled reason to criminalize trans health care” for adolescents, Levi said.
Constitutional Concerns
The plaintiffs raised three constitutional issues: whether the Arkansas law violates a doctor’s First Amendment free speech right to refer her patients for the gender-affirming treatments, their parents’ 14th Amendment due process right to direct their children’s medical care, and the plaintiffs’ constitutional rights.
From a legal standpoint, the equal protection issue is probably the most noteworthy, Katie Eyer, who studies and writes about LGBTQ+ legal issues and constitutional law, said. Eyer is a professor at Rutgers Law School in Camden, N. J.
According to Eyer, Arkansas’ law discriminates on its face by treating people differently based on their sex. Who gets the care depends on their sex at birth, she said. For instance, it’s entirely permissible for a female child who was born to have breast enhancement surgery or undergo estrogen, even for cosmetic reasons. By contrast, a minor assigned male at birth cannot receive the exact same care, even if their doctor deems it medically necessary, she said.
A facially sex-discriminatory law must satisfy a higher standard of review that calls for a state to demonstrate that the provision significantly advances an important governmental interest in order for it to be valid. This section of the test was improper, according to Eyer, because the Sixth and Eleventh Circuits looked at appeals from lower court decisions enjoining gender-affirming care bans.
They relied on “equal application” reasoning—the same reasoning that underpinned segregation and “separate but equal”—to avoid finding sex discrimination, Eyer said. That’s “just clearly wrong under existing equal protection doctrine”, she said.
According to Eyer, the law discriminates against transgender people based on their transgender status, and they also likely should have heightened equal protection review on this ground. “Only transgender people seek this care, and that’s clearly the population the legislature intended to target here”, she stated.
According to her, “and as the District Court in this case correctly concluded, discrimination against the transgender community should itself be viewed as constitutionally suspicious, given the long history of discrimination against” it.
Parental & Speech Rights
The parental rights claim is a “powerful part” of the case, Levi said.
Even though the issue itself has the potential to turn into a “constitutional battle royale,” Perry doesn’t believe it will be particularly significant.
According to Perry, government interests have always been prioritized when children are in danger, and he likened Arkansas’ care ban to child welfare laws. No federal appeals court has ever upheld the constitutionality of parental consent to receive experimental medical care for their children, she said.
The plaintiffs’ strongest claim, in Perry’s opinion, is the doctor’s free speech argument.
It will be “hard for the state to overcome,” she said. It’s generally not a good idea to “muzzle” doctors, Perry said.
Unusual Procedure
Instead of the typical three-judge panel, the Eighth Circuit granted initial en banc review, which means that all of its active judges will hear the arguments. That’s “notoriously hard to get”, Perry said.
According to Scruggs, the court’s decision likely suggests that the judges are aware of the “great significance of the legal issues, the harm children are facing, and the need to resolve this case quickly.”
Cooper noted that the Eighth Circuit won’t be bound by decisions made by a three-judge panel that upheld an earlier preliminary injunction in the case in 2022, even though Eyer downplayed the significance of that procedural position.
All but one of the Eighth Circuit’s active judges were appointed by Republican presidents, but Perry doesn’t think that will play a role in the decision. On both sides of the issues, she claimed, there are various viewpoints.
The US District Court for the District of Arkansas Judge James M. Moody, who permanently halted the state from enforcing the ban in June, issued the appeal.
Sullivan & Cromwell, American Civil Liberties Union, Gill & Ragon, & Bullock & Ward represent the plaintiffs. The Arkansas Attorney General’s Office represents the state and its officials.
The case is Brandt v. Griffin, 8th Cir. en banc, No. 23-2681, oral arguments 4/11/24.
