Arkansas loses renewed bid to revive ban on gender-affirming care for minors

Transgender rights activist waves a transgender flag as they protest the killings of transgender women this year, at a rally in Washington Square Park
Transgender rights activist waves a transgender flag as they protest the killings of transgender women this year, at a rally in Washington Square Park in New York, U.S., May 24, 2019. REUTERS/Demetrius Freeman
  • Ban will remain blocked while legal challenge continues in lower court
  • Dissent says the case's "momentous issues" warrant rehearing

(Reuters) - A closely divided federal appeals court on Wednesday declined to hear arguments over whether to revive an Arkansas law banning gender-affirming care for minors while families and doctors pursue their legal challenge to the ban.

Five of the 8th U.S. Circuit Court of Appeals' 11 judges joined in a dissent, saying the case's importance warranted a hearing by the whole St. Louis, Missouri-based court. A three-judge panel of the court had already refused to revive the law in August.

One circuit judge, Bobby Shepherd, did not take part in Wednesday's decision. The reason for that was not disclosed. A majority of the court would have had to agree to reconsider the August ruling.

Gender-affirming care can include the use of puberty blockers, hormones and surgery for transgender patients.

"Families across Arkansas are thankful the 8th Circuit has rejected the state's effort to overturn the panel's decision, which ensured that transgender adolescents could continue to receive the health care they need," said Holly Dickson, executive director of the American Civil Liberties Union of Arkansas, which is representing the families challenging the law.

Amanda Priest, a spokesperson for Arkansas Attorney General Leslie Rutledge, called the ruling procedural.

"Arkansans can rest assured that Attorney General Rutledge will continue to wholeheartedly defend (the law) because it protects children from these experimental life-altering procedures," she said.

Arkansas was the first U.S. state to ban gender-affirming treatments for minors in April 2021, with lawmakers overriding a veto by Republican Governor Asa Hutchinson to pass the measure. Arizona, Alabama and Texas have since passed similar laws.

Several families of transgender minors ranging in age from 9 to 16, as well as doctors who treat transgender patients, sued to block the law, saying it violated transgender patients' right to equal protection under the 14th Amendment of the U.S. Constitution by depriving them of medical care.

U.S. District Judge James Moody in Little Rock, Arkansas last July entered a preliminary order blocking the law, finding that it prohibited medical treatment that was consistent with the accepted standard of care and that the plaintiffs were likely to succeed at trial.

The three-judge panel unanimously upheld Moody's order, and the state sought a full court rehearing.

The full court did not give a reason for denying that request on Tuesday, but Circuit Judge Steven Colloton wrote in a concurrence joined by two other judges that it would not be appropriate to rehear the case before a final judgment in the lower court.

Circuit Judge David Stras, joined by four other judges, wrote in a dissent that the "momentous issues" raised by the case justified rehearing even at an early stage.

All active judges on the 8th Circuit were appointed by Republican presidents except for Circuit Judge Jane Kelly, who joined neither the concurrence nor the dissent.

The case is Brandt v. Rutledge, 8th U.S. Circuit Court of Appeals, No. 21-2875.

For the state: Deputy Solicitor General Dylan Jacobs

For the plaintiffs: Chase Strangio of the American Civil Liberties Union

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at