Arkansas’ request for rehearing on gender-law injunction denied

A temporary halt on enforcement of Arkansas’ ban on gender-affirming care for minors remains in effect after a federal appeals court on Wednesday denied the state’s request for a rehearing.

In August, a three-judge panel of the 8th U.S. Circuit Court of Appeals upheld a lower court’s injunction that blocked implementation of Act 626 of 2021.

The law, the first of its kind in the U.S., banned physicians from providing “gender transition” treatments like puberty blockers and sex reassignment surgeries.

The state requested a rehearing on the panel’s ruling in October. Wednesday’s full 8th Circuit ruling rejected that request. Five of the court’s 11 judges dissented and would have granted the rehearing.

“Whatever the merits of the panel opinion, this case is not appropriate for rehearing en banc in its current procedural posture,” Judge Steven Colloton wrote in a concurring opinion.

“The present appeal concerns a preliminary injunction entered in July 2021 as to which there has been no request for a stay by the State in fifteen months. The case is now in the midst of a trial in the district court that is scheduled to conclude in less than a month, on December 1, 2022. The present interlocutory appeal will be moot when the district court enters a final judgment after the trial, either because judgment for the State will dissolve the preliminary injunction or because the preliminary injunction will merge into a final judgment for the plaintiffs.”

Colloton wrote further that an appeal of the district court’s final decision will give the appellate court a full record of the litigation, better than the incomplete record on which the current appeal is based.

U.S. District Judge James Moody issued the preliminary injunction against the Save Adolescents From Experimentation (SAFE) Act in July 2021 in a hearing on the lawsuit challenging the act on behalf of four transgender individuals.

The trial of the lawsuit began Oct. 16 and recessed Oct. 21 just as the state began its defense. The trial is scheduled to resume Nov. 28 and last four days.

In the August ruling, the 8th Circuit panel agreed that transgender children would suffer irreparable harm if the law took effect.

“Minor Plaintiffs would be denied access to hormone treatment (including needing to stop treatment already underway), undergo endogenous puberty — a process that cannot be reversed —a nd suffer heightened gender dysphoria,” the ruling stated.

The appellate panel also agreed with Moody that the law likely discriminated against Arkansans on the basis of sex. For instance, a minor born as a male could seek testosterone treatments or have breast tissue surgically removed while a person born as a female could not, the court opined.

“Because the minor’s sex at birth determines whether or not the minor can receive certain types of medical care under the law, Act 626 discriminates on the basis of sex,” the panel wrote.

In passing the ban on certain transgender care for children, Republican state lawmakers argued that it’s the state’s responsibility to regulate medical care and that the ban would protect vulnerable children who are being subjected to irreversible, risky treatments.

Medical groups, including the American Medical Association and American Psychiatric Association, lobbied against the law, saying that the outlawed treatments are safe and that medical decisions should remain in the hands of doctors and their patients.