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ACLU sues Arkansas over transgender health care ban

The group argues that the law discriminates against transgender people and violates physicians’ First Amendment rights.
Protesters unfurl a giant transgender pride flag outside the Supreme Court in Washington on Oct. 8, 2019.
Protesters unfurl a giant transgender pride flag outside the Supreme Court in Washington on Oct. 8, 2019.Erik McGregor / LightRocket via Getty Images file

The American Civil Liberties Union filed a lawsuit against Arkansas officials over a recently passed measure that will bar health care professionals from providing transition-related care to transgender minors. The suit was filed on behalf of four trans youths and their parents, as well as two physicians who provide gender-affirming health care. 

Gov. Asa Hutchinson, a Republican, vetoed the bill in April, calling it a “vast government overreach,” but the Legislature overrode the veto a day later, making Arkansas the first in the country to pass a restriction on transition-related health care. The law could take effect as early as July 28. 

The suit, filed Tuesday in the U.S. District Court for the Eastern District of Arkansas, alleges that the law violates the U.S. Constitution. 

“This law would be devastating to trans youth and their families, forcing many to uproot their lives and leave the state to access the gender-affirming care they need,” Holly Dickson, executive director of the ACLU of Arkansas, said in a statement. “We’re suing to stop this cruel and unconstitutional law from taking effect and inflicting further harm on these children and their families.” 

Arkansas is one of 35 states that have considered bills targeting transgender people in 2021, according to the ACLU. The state and Tennessee are the only two  to pass bills that will limit transition-related care. Arkansas is also one of eight states that have passed bills that will ban trans student athletes from competing on sports teams that align with their gender identity. 

Tuesday’s suit names Arkansas Attorney General Leslie Rutledge and members of the Arkansas State Medical Board as defendants. In addition to the ACLU, the plaintiffs are represented by the ACLU of Arkansas and the law firms of Sullivan & Cromwell LLP, Gill Ragon Owen and the Walas Law Firm.

Rutledge told NBC News in an email that she would "aggressively defend Arkansas’s law which strongly limits permanent, life-altering sex changes to adolescents."

"I won’t sit idly by while radical groups such as the ACLU use our children as pawns for their own social agenda,” she said. 

The Arkansas State Medical Board said it does not comment on pending litigation.

One of the plaintiffs, 15-year-old Dylan Brandt, will lose access to transition care he’s receiving when the bill takes effect.

“This is who I am, and it's frustrating to know that a place I've lived all my life is treating me like they don’t want me here,” Brandt said in a statement. “Having access to care means I’m able to be myself, and be healthier and more confident — physically and mentally. The thought of having that wrenched away and going back to how I was before is devastating.” 

Amanda and Shayne Dennis said their 9-year-old, Brooke, “began to really struggle” when she felt pressure to pretend she was a boy at school. Last year, when she told them she wanted to be called Brooke and use “she” and “her” pronouns, they supported her, “and the cloud of sadness lifted and her smile came back,” Amanda Dennis said. Now, Brooke fears being unable to access health care once she starts puberty. 

“We have told all of our children that we will always protect them, but this law stands in the way of our child getting the medical care she will desperately need,” Amanda Dennis said in a statement. 

The couple plan to leave the state if Brooke can’t get the care she needs, but that would mean uprooting their family, including their aging parents, whom they care for.

Supporters of bills like that of Arkansas argue that transition care for minors is “experimental” and that trans minors often change their minds about their gender or detransition later in life. But medical experts say neither of those claims are backed by scientific evidence. In fact, they say the care is supported by decades of research.

 Tuesday’s lawsuit notes that all major medical associations — including the American Medical Association, the American Academy of Pediatrics, the Endocrine Society and the American Psychological Association — support gender-affirming care for trans youth.

Arkansas’ law would not only ban physicians from providing transition-related care, but it would also bar them from referring trans minors to other providers who provide transition care. Additionally, it would prevent state funds, such as Medicaid funds, from covering gender-affirming health care for trans people under 18, and, according to the ACLU, it would allow private insurers to refuse coverage for transition care for people of any age.

The lawsuit argues that the ban violates the equal protection clause of the 14th Amendment, “because it discriminates on the basis of sex and transgender status by prohibiting certain medical treatments only for transgender patients and only when the care is ‘related to gender transition,’” meaning the same medications, such as hormones and puberty blockers, could be prescribed to cisgender minors if they aren’t for transition-related purposes. 

It also argues that the bill interferes with the right to parental autonomy guaranteed by the due process clause of the 14th Amendment, and that it violates the First Amendment by prohibiting providers from referring patients to other medical professionals. 

Chase Strangio, deputy director for transgender justice with the ACLU's LGBTQ & HIV Project, said in a statement that the ACLU and its partners will be filing “several lawsuits” over the course of the next few months “to make it clear that there is a robust movement of trans people and allies fighting for trans justice.” 

“Trans young people should not have to fight so hard to live,” he said. “Even with supportive families, these bills have devastating consequences. Our work will not be done until every law that targets transgender people is struck down as unconstitutional and all transgender people are able to live without fearing discrimination and violence because of who we are.”

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