Arkansas governor signs law allowing malpractice suits for transgender minors’ health care

By: - March 14, 2023 4:23 pm

Tien Estell (right), advocacy coordinator for Intransitive Arkansas, speaks against Senate Bill 199, sponsored in the House by Rep. Mary Bentley (R-Perryville, left) on March 7, 2023. The bill became law March 13 and allows doctors who provide gender-affirming health care to transgender minors to be sued for medical malpractice after the minors become adults. (Tess Vrbin/Arkansas Advocate)

Arkansas Gov. Sarah Huckabee Sanders signed a law Monday that opens the door for medical malpractice lawsuits against doctors who provide gender-affirming care to transgender minors.

Senate Bill 199, now Act 274, creates 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.”

A patient will be able to sue a doctor for up to 15 years after turning 18. The bill originally provided a 30-year statute of limitations before it was amended in February. State law regarding medical malpractice lawsuits sets a two-year timeframe for filing litigation regarding other medical procedures.

The bill’s sponsors, Rep. Mary Bentley (R-Perryville) and Sen. Gary Stubblefield (R-Branch), repeatedly said the bill should prevent “irreversible harm” to the bodies of children who might grow up to regret certain medical treatments.

Social workers, parents of transgender children and other opponents of the bill said that not only do transgender people rarely, if ever, regret transitioning, but also gender-affirming health care is only administered to minors after extensive mental health care and discussion about the risks and benefits of medical procedures.

Bentley and Stubblefield said surgeries on children’s breasts and genitals in particular should not be allowed. Transgender minors in Arkansas do not receive these surgeries or referrals for them, members of the public told the House and Senate Judiciary Committees.

Simon Garbett, a transgender 16-year-old from Little Rock, told the House Judiciary Committee that he hopes to receive gender-affirming surgeries as an adult but so far has benefited greatly from testosterone therapy.

“Passing this bill will guarantee that my future will be jeopardized,” Simon said. “Losing access to this health care will mean my blood will be on your hands.”

Act 274 passed the Senate on Feb. 21 and the House on Wednesday, both along party lines. Democratic legislators and LGBTQ rights advocates said the bill was one of many introduced this year aimed at restricting the behavior of transgender Arkansans, including bills pertaining to bathroom use, pronoun use and drag performances.

Act 131 was heavily amended to no longer mention the word “drag.” Sanders signed the law in February. The other bills are still moving through the Legislature.

Act 274 allows private enforcement of the Save Adolescents From Experimentation (SAFE) Act of 2021, Michael Cantrell, an assistant solicitor general with the Arkansas Attorney General’s Office, told the Senate Judiciary Committee on Feb. 13.

The SAFE Act banned hormones, puberty blockers and gender-affirming surgeries for transgender youth. Then-Gov. Asa Hutchinson, a Republican, vetoed the bill in May 2021, but the Legislature overrode his veto.

U.S. District Judge James Moody blocked enforcement of the law in July 2021, and he oversaw the trial challenging the law in 2022. He has yet to issue a final decision.

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.

The trial was the first in the U.S. over a ban on gender-affirming health care for transgender youth.

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Tess Vrbin
Tess Vrbin

Tess Vrbin came to the Advocate from the Arkansas Democrat-Gazette, where she reported on low-income housing and tenants' rights, and won awards for her coverage of 2021 flooding and tornado damage in rural Arkansas. She previously covered local government for The Commercial Dispatch in Mississippi and state government for the Columbia Daily Tribune in Missouri.