Judge Declines to Dismiss Lawsuit Against Arkansas Ban on Transgender Procedures for Minors

Supporters at the "Rally to End Child Mutilation” hold up signs as about 2,000 gathered at War Memorial Plaza Oct. 21, 2022 in Nashville, Tennessee. Bobby Sanchez for The Epoch Times

LITTLE ROCK, Ark.–A federal judge declined on Oct. 21 to dismiss a lawsuit against Arkansas’s ban on gender-transition procedures for minors. As a result, the nation’s first such law will remain in legal limbo while a national debate over the procedures appears to be intensifying.

On Oct. 21, after three days of testimony from plaintiffs’ witnesses in U.S. District Court in Little Rock, lawyers representing the state of Arkansas asked District Judge James Moody Jr. to throw out a constitutional challenge to the Save Adolescents From Experimentation (SAFE) Act.

Moody said an Aug. 25 decision from a federal appeals court gave him “marching instructions” that largely neutralized the state’s arguments against the suit filed by the American Civil Liberties Union (ACLU).

The U.S. Court of Appeals for the Eighth Circuit had ruled that Moody was correct when he temporarily blocked the law from taking effect in 2021. The state’s lawyers have asked the appeals court to reconsider that decision.

Meanwhile, the case has moved forward in Moody’s court; the trial, which began on Oct. 17, will resume on Nov. 28 with testimony from the state’s witnesses.

Arguments Mostly Constitutional

The Arkansas trial is focusing narrowly on the constitutionality of the SAFE Act, which directly affects only a sliver of the population: youths seeking medical intervention for “gender dysphoria,” or mental distress about one’s gender.

Chase Strangio, an ACLU lawyer, argued that the testimony thus far has clearly shown that cross-sex hormones and puberty blockers “greatly improved” the lives of young people who received these treatments.

“This care has turned the lights on for them, and taking it away would be potentially catastrophic,” Strangio, arguing for Moody to allow the lawsuit to proceed. Strangio said the law unconstitutionally denies transgender patients access to treatments that are used for other purposes by non-transgender patients.

The U.S. District Court for the Eastern District of Arkansas, which is hearing a challenge to the state's ban on transgender medical procedures for minors, in Little Rock, Ark., on Oct. 17, 2022. Janice Hisle/The Epoch Times

Dylan Jacobs, an Arkansas assistant solicitor general, argued that the lawsuit should be thrown out because the state has a legitimate interest in protecting young people from taking steps that could lead to irreversible sterility and lifelong health consequences.

Jacobs also countered the ACLU’s contention that the law infringes on doctors’ rights to free speech by forbidding them from referring patients to other professionals for the controversial treatments.

“It’s not an actual speech restriction. It’s a conduct restriction,” he said.

Bigger Than Arkansas

The Arkansas case’s implications stretch far beyond the state’s borders.

Testimony in Moody’s court has barely hinted at the intense moral, ethical, and monetary arguments swirling around these procedures nationwide. In recent weeks, protests against the procedures have popped up in several states, including California, Texas, and Tennessee.

Chloe Cole, who regrets taking steps to masculinize her female body, takes part in a demonstration in Anaheim, Calif., on Oct. 8, 2022. John Fredricks/The Epoch Times

“Detransitioners”—people who regret undergoing gender-transition procedures—have been at the forefront. Several of international renown are listed in court records as proponents of the SAFE Act. They include Keira Bell, Laura Becker, and Sinead Watson, among others.

Supporters of the SAFE Act argue that more states should outlaw the procedures as harmful to minors’ long-term health and happiness.

But the ACLU, transgender activists, and some prominent medical organizations say the treatments alleviate distress that could lead to suicide if unchecked. They also argue that denying the procedures amounts to illegal discrimination based on gender identity.

‘Grave Concern’

In Arkansas, the ACLU filed suit on behalf of four transgender youths and their families, along with two doctors who provide the controversial treatments. Both doctors testified that the procedures are considered safe and effective.

According to testimony during the trial, cross-sex hormones are the most commonly prescribed gender-transition procedure for minors.

Puberty-blocking medications and genital surgeries are rare among patients under age 18. But a rising number of teenage girls have had their breasts removed so their bodies will appear more masculine.

The SAFE Act says it is based on “grave concern” over doctors providing these treatments to minors “despite the lack of studies showing that the benefits of such extreme interventions outweigh the risks.”

Although much of the ACLU witnesses’ testimony was highly technical, four parents of young plaintiffs gave often-emotional testimony; a teen who received cross-sex hormones was the final ACLU witness to testify.

Clinic Puts Procedures on Hold

Dylan Brandt, 17, began receiving cross-sex hormones at an Arkansas gender clinic two years ago.

Although the treatments are continuing for Dylan and other established patients, the clinic has hit the pause button on gender-transition procedures until the Arkansas legal battle plays out in court.

Dr. Michele Hutchison, former director of the Gender Spectrum Clinic affiliated with Arkansas Children’s Hospital, testified that earlier this year, the hospital ordered the clinic to start no additional patients on puberty blockers or cross-sex hormones.

Ryan, a "gender variant" fourth grader, center, runs with others during recess at their school in Illinois on May 2, 2013. AP Photo/M. Spencer Green

Previous patients are being allowed to continue as prescribed but hospital officials apparently thought it was unwise to start more patients on a treatment regimen that would be halted if the SAFE Act takes effect, Hutchison said.

Hutchison, who had been one of Dylan’s doctors until she moved out of state, is no longer a plaintiff in the case because she moved out of Arkansas. She traveled from her new residence, in New Mexico, to testify in Moody’s court.

The clinic’s current director, Dr. Kathryn Stambough, testified that 43 patients are awaiting cross-sex hormones or puberty blockers because they have been unable to get the medications elsewhere during the clinic’s moratorium. Stambough said she expects the procedures to resume if the ACLU prevails in its lawsuit.

The clinic hasn’t performed gender-transition surgeries, the two doctors said; both reported no serious side effects from gender-transitioning prescriptions.

Concerns About Unknowns

State Rep. Robin Lundstrum, who sponsored the SAFE Act, has said that she worries about the future of children who go through any gender-transitioning medical treatment.

She has cited stories of transgender adults who told her about long-term health effects from the treatments they received. These adults also said that their happiness and mental health didn’t improve in the long run. In fact, some have publicly stated that their transitioning caused additional social, mental, and health issues that they didn’t expect.

Arkansas Rep. Robin Lundstrum, sponsor of a state law that seeks to ban gender-transitioning treatments for minors, appears in an undated photo. Courtesy of Robin Lundstrum

Lundstrum and others refer to a 30-year Swedish study that followed more than 300 patients who underwent gender-altering surgeries. That group was 19 times more likely to commit suicide than a group of peers, the study showed.

Lundstrum said the SAFE Act is intended to protect children because the long-term effects on minors remain unknown; she and others consider the gender-transitioning medicines and surgeries “experimental” for youths.

Although parental consent is almost universally required before minors undergo such treatments, Lundstrum cited reports of some parents receiving insufficient information.

But Hutchison testified that, at the Gender Spectrum Clinic, doctors and other professionals have repeated, detailed discussions with young patients and their parents; a 10-page consent form lays out the risks and benefits of masculinizing or feminizing treatments.

Hutchison said patients and their parents have been specifically advised that treating adolescent gender dysphoria is a relatively recent use of those drugs, and “we will learn more as time goes on.”

Teen Testifies About Testosterone

Dylan, who was born female, testified about a long-felt affinity for all things masculine. Dylan, who now presents as a male with obvious facial hair, said testosterone injections have done more than alter external appearance.

A transgender individual shows a testosterone ampule at a hospital in Santiago, Chile, on Jan. 8, 2020. Claudio Reyes/AFP via Getty Images

When asked to use one word to sum up the effect of the gender-altering treatments, Dylan replied, “Hopeful.”

Lawyers representing the state of Arkansas declined to cross-examine Dylan. They also asked no questions of four parents of the young plaintiffs. All four expressed a common theme: They believe their children need the treatments to improve their outlook and self-perception. If the SAFE Act stands, they would be faced with the dilemma of either traveling out of state or uprooting their families to other states that would allow the treatments.

As The Epoch Times previously reported, nearly 40 other attorneys general have expressed opinions about the case. About half, mostly from Republican states, support Arkansas Attorney General Leslie Rutledge’s side; the other half, from predominantly Democrat states, align with the ACLU in its opposition to the SAFE Act