Arkansas Senate approves bill allowing malpractice suits for transgender minors’ health care

A proposed law that would allow medical malpractice lawsuits against Arkansas doctors who provide gender-affirming care to transgender minors passed the Senate on Tuesday with a party-line vote and will go to the House for consideration.

Senate Bill 199 would create civil liability for a doctor who “performs a gender transition procedure on a minor … if the minor is injured, including without limitation any physical, psychological, emotional, or physiological injury, by the gender transition procedure, related treatment, or the after effects.”

The original version of the bill would have created a 30-year statute of limitations if an adult who received medical care for gender dysphoria as a child wanted to take legal action against the doctor that provided the treatment. The bill passed the Senate Judiciary Committee on Feb. 13 after 12 people, including doctors, social workers and LGBTQ activists, spoke against it.

The bill was amended Thursday to lower the proposed statute of limitations to 15 years after a patient turns 18. Current law regarding medical practice lawsuits sets a two-year timeframe for filing litigation. The Senate Judiciary Committee approved the amended bill Monday with two “no” votes.

All 29 Senate Republicans voted for the bill, and all six Senate Democrats voted against it.

Sen. Gary Stubblefield (R-Branch), the bill’s sponsor, told the Senate that the bill aims to prevent “damage” to children’s bodies “irreversibly.”

Stubblefield is also the chairman of the Judiciary Committee. In last week’s meeting, he called gender-related medical treatments “mutilation” and “child abuse,” and he said children might grow up to regret receiving them.

“Can you imagine giving puberty blockers and cross-sex hormones to three- and four- and five-year-old girls and boys?” Stubblefield said Tuesday.

No member of the Legislature would support mutilating, abusing or permanently altering the body of a child, “but that’s not what’s happening” when transgender minors receive gender-affirming health care, said Sen. Clarke Tucker (D-Little Rock), who voted against the bill in the Senate Judiciary Committee both times.

The effects of hormones are reversible, puberty blockers are rarely prescribed and gender-affirming surgeries are not happening to children in Arkansas, according to medical professionals both at last week’s committee hearing and at last year’s federal trial challenging a 2021 law that banned the same treatments.

The Save Adolescents From Experimentation (SAFE) Act was blocked in 2021 by U.S. District Judge James Moody, the same judge who oversaw the trial and will issue a ruling on whether the law is constitutional. The trial was the first in the U.S. over a ban on gender-affirming care for transgender youth.

The parents of all four transgender minor plaintiffs testified during the trial that their children’s mental health vastly improved as a result of transitioning. They said it would be an emotional and financial burden to travel to other states for gender-affirming care.

Senate Bill 199 would allow private enforcement of the SAFE Act, said Michael Cantrell, an assistant solicitor general with the Arkansas Attorney General’s Office, in response to questions from Tucker at the Feb. 13 committee meeting.

Stubblefield said Tuesday that the SAFE Act was “a good bill” and should not have been blocked.

Children who receive gender-affirming care do so with input from their parents and doctors, and the Legislature should not claim to know better than all of them, Tucker said.

“[This bill is] big government stepping in and making the most personal decisions for kids,” he said.

Monday’s testimony

Toni Rose, director of the Arkansas Legislative Prayer Caucus, was the only person to speak for Senate Bill 199 before the Senate Judiciary Committee last week and this week.

Rose cited studies from other countries that claim gender-affirming care does not decrease and might even increase transgender individuals’ risk of suicide.

Social worker Allison Grigsby Sweatman, one of Monday’s two witnesses against the bill, brought the opposite perspective.

​​Sweatman works with children “who don’t want to live anymore,” some of whom are transgender or “questioning” their gender identity, she said. Their suicidal thoughts have increased because of “storms of legislation” that target them, including Senate Bill 199, she said.

“[I’m not here] to push any agenda besides this: to keep trans youth alive so that they can grow into trans adults,” Sweatman said.

Marie Mainard O’Connell presented the same concerns about the bill at both committee hearings. O’Connell is a mother to a transgender child and the pastor of Second Presbyterian Church in Little Rock.

The bill’s defense for doctors to provide gender-affirming care requires the minor patient to have “no other mental health concerns.” Examples include depression and eating disorders, which O’Connell said can be caused by gender dysphoria, or autism and attention deficit hyperactivity disorder, which are not linked to gender identity.

“If this bill passes, my child will be prevented from being able to have treatment according to their current diagnosis,” O’Connell said.

Legal and constitutional issues

Standards of medical care are the benchmark for liability in medical malpractice lawsuits, but Senate Bill 199 should not create a standard of care, Senior Assistant Attorney General Jordan Broyles Hallenbeck told the Senate Judiciary Committee last week.

Dr. Janet Cathey, an obstetrician-gynecologist who has treated transgender patients since 1982, told the committee that the bill does in fact create a standard of care.

One of the current criteria for medical malpractice liability is proof that a healthcare professional was aware of standards of care and did not meet them, Tucker said Tuesday, but Senate Bill 199 would remove this requirement specifically for doctors who provide gender-affirming care to minors and put them at risk of litigation simply for providing this care at all.

Supporters of both the SAFE Act and Senate Bill 199 have claimed that puberty blockers decrease bone density and put children at risk of osteoporosis.

If that risk is real, the Legislature could consider prohibiting puberty blockers for all children instead of just for transgender children, Tucker said.

Additionally, the bill includes a list of medical circumstances that would not be susceptible to malpractice suits, such as corrective surgery if a person is born “​​with external biological sex characteristics that are irresolvably ambiguous.”

Newborn children cannot consent to surgical procedures in these situations, Tucker said.

“If we don’t want any permanent changes to children until they have an opportunity to make that decision as an adult, let’s do it for all of them,” he said. “That’s how we know this bill violates the equal protection clause [of the U.S. Constitution], because we’re not doing it for all of them. We’re picking on a certain marginalized and misunderstood community in Arkansas.”

Sen. Missy Irvin (R-Mountain View) said she supported the bill but would have preferred it to include procedures done on babies, including circumcision, on the list of exemptions from potential litigation.

“Clarification probably might be a good thing, just to make sure those things are not wrapped up in” doctors’ risk of liability, Irvin said.

Rewritten “drag” bill advances

Stubblefield also sponsors Senate Bill 43, which will be taken up for a vote in the Senate on Wednesday.

The bill’s initial attempt to regulate drag performances targeted transgender and nonbinary Arkansans, according to activists who opposed the bill as soon as it was introduced in January. Stubblefield has repeatedly said the goal is to protect children from sexual content and behavior.

The bill was heavily amended earlier this month and no longer mentions the word “drag.” It defines an “adult-oriented performance” as one “that is intended to appeal to the prurient interest,” meaning overtly sexual, and features complete or partial nudity and the exposure of real or prosthetic breasts or genitalia.

This version of the bill would survive a potential legal challenge while previous versions of the bill would not, Stubblefield told the Senate City, County and Local Affairs Committee on Tuesday.

“None of us like to pass a bill that’s going to get struck down by a judge and not help any children at all,” Stubblefield said.

The first version of Senate Bill 43, filed Jan. 9, defined drag as “exhibit[ing] a gender identity that is different from the performer’s gender assigned at birth using clothing, makeup, or other accessories that are traditionally worn by members of and are meant to exaggerate the gender identity of the performer’s opposite sex” and singing, dancing, lip-syncing or performing in other ways in front of an audience.

An amendment adopted Jan. 30 redefined drag as a performance in which someone “exaggerates sexual aspects of the masculine or feminine body for entertainment purposes.”

Both previous versions of the bill classified a drag performance as an “adult-oriented business” similar to pornography, strip clubs and other sexually explicit content and activities. Such businesses are not allowed to be located within a certain distance of schools, parks and other places children frequent.

The Senate passed the first version of the bill on Jan. 24, and the House passed the current version on Feb. 6.

The bill “reaches more broadly” now than it did before being amended because it explicitly prevents a “sexual show” from allowing minors to attend, Stubblefield said Tuesday.

The amended bill is also the first version to prohibit the use of public funds for such performances. In earlier testimony about the bill, some supporters said they objected to drag performers reading stories to children in public libraries.

No members of the public spoke for or against the bill on Tuesday, and the committee approved the bill with no audible dissent.