State begins defense of ban against gender-affirming care for minors

This article was updated at 7:35 p.m. Oct. 22, 2022, for minor edits.

The trial against Arkansas’ ban of gender-affirming health care for minors recessed Friday afternoon until late November, following a morning highlighted by over two hours of closed-door testimony involving private medical information.

Lawyers from Attorney General Leslie Rutledge’s office began their defense of the Save Adolescents From Experimentation (SAFE) Act on Friday with a motion to dismiss the case, which U.S. District Judge James Moody denied.

Dylan Jacobs, deputy solicitor general for Arkansas, then asked the judge to clear the courtroom of all but the necessary court personnel, and attorneys so that two witnesses could be questioned about patients. Court reopened at noon.

After about half an hour of testimony from Dr. Janet Cathey, director of transgender care at Planned Parenthood Great Plains’ Little Rock clinic, Moody recessed the trial until Nov. 28 to give the state time to schedule the remainder of its witnesses. Moody had indicated earlier in the week that he hoped to conclude the trial this week because of other cases on his docket, but Jacobs, who had planned for a longer trial, said he couldn’t reschedule some of his witnesses to meet the shorter timeline.

The ACLU sued the state last year seeking to block enforcement of Act 626 of 2021, which prohibits physicians from providing “gender transition” treatments like hormones, puberty blockers and surgeries to children under 18. No surgeries are currently performed on children in the state. The act became law in May 2021 after the Legislature overrode Gov. Asa Hutchinson’s veto.

The lawsuit was filed on behalf of four Arkansas families and their minor transgender children and two medical doctors and their patients. The suit claims the law violates the Constitution’s Equal Protection Clause, the First Amendment’s free speech protections and the Fourteenth Amendment’s due process clause.

Moody blocked implementation of the law in July 2021 with a preliminary injunction that was upheld this August by a three-judge panel of the 8th U.S. Circuit Court of Appeals. Similar laws restricting access to gender-affirming care in three other states — Alabama, Arizona and Texas — also are on hold after judges blocked enforcement. Arkansas was the first state to enact a ban on gender-affirming care for minors.

Context and testimony

The trial began Monday and continued into Tuesday with testimony from four medical professionals who spoke to the medical and psychiatric benefits of gender-affirming care. The fathers of two of the teens who are plaintiffs testified about the positive changes they’ve seen in their children since they began receiving treatment and about the anxieties they feel over the law’s potential enforcement.

On Wednesday, Dylan Brandt, the lead plaintiff and the only teen to testify, told the court that the hormone therapy he’s received was life-changing. He and his mother said the law would impose a burden on them, forcing them to travel or move to continue to get treatment.

After a day off, court resumed Friday with the plaintiffs’ attorneys formally resting their case and the state beginning its defense.

Jacobs began with a lengthy oral motion asking the judge to dismiss the lawsuit “as a matter of law.” The state’s attorney argued that the plaintiffs had not provided sufficient evidence or testimony to support their claims that Act 626 violates the U.S. Constitution.

He contended that gender identity isn’t “immutable” and can change over time, which he said undermines the plaintiffs’ argument that it is and thereby creates a legally defined class of people affected by the law.

Jacobs also argued that the physician referrals banned by Act 626 don’t restrict free speech because referrals are a matter of medical conduct. He compared it to restrictions on attorneys speaking to a third party who is represented by an attorney.

“Even in that case,” Moody interjected, “they can talk to the client, they just can’t do it without their attorney being present. … They have to be chaperoned, for lack of a better term … That’s not a restriction on what’s being said; it’s a restriction on who needs to be present to say those things, if I followed your argument.”

He and the judge then had a lengthy exchange over what constitutes a referral.

In asking the judge to deny the state’s motion, ACLU attorney Chase Strangio countered that banning physician referrals is “a clear example of speech that would be infringed upon.”

Regarding “immutability,” Strangio said that under U.S. Supreme Court doctrine,  it refers to something that someone cannot change or “should not have to change because it is so fundamental to who they are.”

The act also infringes on parents’ rights to make medical decisions for their children, Strangio said.

“This law makes no sense in light of how Arkansas treats other types of care,” the ACLU lawyer told the judge. “It imposes a broad and undifferentiated disability on a single class of people without a legitimate basis. … The harms of this law are clear. Taking this care away is potentially catastrophic. As Dylan testified, this care has been synonymous with hope.”

Moody then denied the state’s motion and closed the courtroom for the sealed testimony shortly after.

When the trial resumed in open session, Assistant Solicitor General Hannah Templin questioned Dr. Janet Cathey, director of transgender care at Planned Parenthood Great Plains’ Little Rock clinic, about the procedures she and the clinic follow for patient intake when someone is seeking hormone therapy related to gender identity. The attorney also asked Cathey whether she had ever prescribed puberty blockers to minors.

Cathey replied that she had not and that she’d only prescribed hormone therapy and only to patients 16 years old or older. She said she would not treat anyone under 16 with hormone therapy.

Templin also asked about likely side effects from hormones, which Cathey said were rare, and about the consent forms patients or their parents have to fill out.

Under cross-examination by ACLU attorney Leslie Cooper, Cathey said that the last time she treated anyone under 18 was June 2021.